Preventing the ­firebird’s resurrection

One online source tells us that a “phoenix is a legendary bird that according to one account lived 500 years, burned itself to ashes on a pyre, and rose alive from the ashes to live another period.”1 If we are not careful, cases can live the life of a phoenix too.
    Lesser-included offenses continue to attract more attention than many topics before the Court of Criminal Appeals. This term the court continued the trend by righting a wrong and clarifying an unknown in Bowen and Hicks respectively.2 The two opinions further justice, but underlying both is a lurking specter that could appear patently to prevent their application. Beware your trial strategy.
    In 1999, Judge Mansfield, joined by Judges Meyers, Price, and Johnson, authored Collier, which stood for the proposition that an appellate court finding the evidence insufficient to support the charged offense could not reform the conviction to a lesser-included offense (LIO) unless either the LIO had been 1) requested by the parties or 2) included in the jury charge.3 Absent one of these two actions, the wholly undeserving defendant, with notice by way of the charged offense of any LIOs and unequivocally guilty of an LIO, would obtain the windfall of an acquittal.4 This opinion haunted us for far too long—and Bowen corrected this gross injustice.
    Hicks, on the other hand, came about because of a conflict between two intermediate courts on whether reckless aggravated assault was an LIO of intentional or knowing aggravated assault.5 In that case, the unanimous court, in an opinion written by Judge Cochran, held that reckless aggravated assault is a LIO of intentional or knowing aggravated assault, so the matter is now settled.
     But if all we take away from these two opinions is that the law of LIOs has been relaxed so we can 1) now always rely on an LIO to salvage a conviction overturned on sufficiency grounds and 2) freely submit a jury instruction on recklessness for the first time in the jury charge, we are in peril of losing convictions and undoing all the good work that has been put into securing these important rulings. Bowen not only warns us in its particular context that the type of trial strategy recognized in Collier probably still won’t past muster, but it also signals on a broader scale that evidence of gamesmanship will likely serve to limit the application of Hicks. At trial, the State must play fair.6

The birth of Collier
A jury convicted John Henry Collier of serious bodily injury to a child. On appeal the Third Court of Appeals held that, although the evidence was sufficient to support a conviction for bodily injury to a child, it was insufficient to support a conviction for serious bodily injury. Relying on its own precedent, the intermediate court determined that it could not reform the judgment to the LIO because the jury had not been instructed on the LIO.7
    Taking up the issue raised by the State Prosecuting Attorney—whether the court of appeals had authority to reform the judgment—as one of first impression, the Court of Criminal Appeals followed the Supreme Court of Wisconsin’s lead in affirming the intermediate court. The court’s rationale, also adopted, was that to permit the State to obtain an LIO when one had not been requested or submitted gave the State “all the benefits and none of the risks of its trial strategy, while the accused would have all the risks and none of the protections.” It was seen as unfair gamesmanship to allow the State to engage in a trial strategy of securing a conviction for a greater offense with weak evidence and, when reversed on appeal for insufficient evidence, to be able to obtain a conviction on an unrequested or uncharged LIO. In other words, the State should not be rewarded for “going for broke.”
    Judge Keasler concurred but reached the same result by an independent route: He relied on the Rules of Appellate Procedure and cases interpreting them that limited an appellate court to rendering a judgment that the trial court should have rendered. This law informed, he opined, that a trial court could render judgment only under the instructions given to the jury so, if a single offense was submitted to a jury, the trial court could convict or acquit of that offense alone. Then Judge Keller dissented, joined by Presiding Judge McCormick and Judges Holland and Womack.
    Four months later, the court denied the State’s motion for rehearing.8 Judge Johnson concurred, explaining what the plurality decision meant; Judge McCormick, joined by Judge Keller, issued a strong dissent. Later, in Haynes, the court held that Judge Keasler’s opinion in Collier was the majority holding (the narrowest ground on which the plurality agreed).9

The death of Collier
After other attempts to torpedo Collier, the briefing of the State Prosecuting Attorney’s office in Bowen scored a direct hit. On the death of Deborah Bowen’s father, a family trust was created and, a few years later, Bowen became a co-trustee. When the trust terminated, instead of distributing the considerable balance between her and her deceased brother’s three children, Bowen kept the small fortune for herself. At her trial for misapplication of fiduciary property of the value of $200,000 or more, the trial court submitted no LIOs, and the parties requested none. The jury convicted. But the Eleventh Court of Appeals, finding the evidence insufficient for purposes of the value—because the single beneficiary alleged in the indictment was entitled to only one-sixth of the money (about $100,000)—reversed and acquitted.
    On petition to the Court of Criminal Appeals, two of the original Collier judges realigned themselves. Judge Meyers writing for the majority—joined by now Presiding Judge Keller, and Judges Womack, Johnson, Cochran, and Alcala—expressly overruled Collier. But Judge Price, dissenting, stuck to his original position and was accompanied by Judges Keasler and Hervey.
    So what swung Judges Meyers and Johnson?
    The majority’s review of the appellate landscape post-Collier revealed that the risk of gamesmanship identified in Collier as the rationale for the holding had not been realized in many of the subsequent cases. Simply, Collier’s progeny did not indicate that either the State or the defense had elected not to request an LIO as a matter of gamesmanship.10 Thus, Collier did not fulfill its stated purpose and, worse, actually produced an “unjust” result.
    (In contrast, the court had recently decided Tolbert,11 where the defense had clearly gone for broke at trial, the defendant was convicted, and on appeal the defendant argued that the trial court should have sua sponte instructed the jury on an LIO. The court, not buying into the gamesmanship, held that the defense could not get relief from the consequences of its own strategy.)
    Evidence of improper gamesmanship—attempting to obtain an unfair advantage—then has become a touchstone for determining the propriety of submitting LIOs. Such gamesmanship has been an issue in other areas too, for example, goading the defense into a mistrial so that the State can obtain a second bite at trial.12 The Court of Criminal Appeals is not tolerant of such practices. Indeed, in Bowen it apparently retained a safety barrier—a hurdle that the State should not be able to jump if it engaged in gamesmanship. The majority specifically observed that there was “no indication that either party overreached” and the failure to request an LIO was simply “a mistake as to the applicable law” and “not the result of gamesmanship.” These are not the noises of a poltergeist but rather fair warning. We should assume that the court will not reform a judgment to the State’s benefit if the record reflects that the State adopted an “all or nothing” strategy with the charged offense.
    Given the background of Collier and these observations in Bowen, we should be under no misapprehension that the court will grant an acquittal, rather than a reformation to an LIO, if it identifies evidence of gamesmanship. This places the State on the same level as the defense in Tolbert. Thus, at trial, prosecutors must evaluate and implement our strategy carefully: We don’t want a guilty defendant to walk away scot-free because the State overplayed its hand.

We should not forget ­Collier’s ashes
As trial strategy has become increasingly relevant to the LIO inquiry, we are wise to consider its application in Hicks—even though this is something the court did not address in its opinion.13 (Even an oracle addresses only the question presented.) A single case of improper gamesmanship could tilt the LIO playing field again.
    In Hicks the Court of Criminal Appeals held that reckless aggravated assault can be the LIO of intentional or knowing aggravated assault. This makes sense: The LIO of a greater offense can be the greater offense’s LIO.14 Plenty of prior decisions from our high court confirm the same thing in other contexts.
    But we should reflect before taking Hicks at face value alone. Buried in the Code of Criminal Procedure is a provision that seems to thrive on being more than a little troublesome. As most recognize all too well, art. 21.15 requires that, when alleging recklessness as a culpable mental state, the charging instrument “must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness” (the same requirement adheres to criminal negligence too). Often, though, because appellate decisions have shown that this pleading requirement can be a trap for prosecutors who plead too little, the culpable mental state of recklessness is not alleged.15
    It may or may not have been because of this additional pleading requirement for recklessness that the indictment in Hicks did not allege the culpable mental state. Anyway, relying on the evidence presented, the trial court gave an instruction on the lesser offense for the first time in the jury charge—seemingly sua sponte. But the Court of Criminal Appeals’ opinion contains not even a hint of art. 21.15. What’s more, the language of the court’s charge in Hicks does not appear to “allege, with reasonable certainty, the act or acts relied upon to constitute recklessness.” At least, it provides no more notice of the acts relied than the allegation of the greater offense, i.e., “unlawfully, recklessly cause bodily injury to [the victim] by using a deadly weapon, namely a firearm.”
    Does this mean that by the expedient of delaying a recklessness allegation until the charge is prepared, the State can perform an end-run around art. 21.15 (Must Allege Acts of Recklessness or Criminal Negligence)? If so, the State could duck its duty to provide adequate notice. I suggest not even taking the risk that our conduct could be perceived so. If an appellate court detects even a whiff that the State had employed such a trial strategy, we can expect it to reverse and acquit. And such gamesmanship doesn’t just hurt your case and credibility—at least in the current hyper-vigilant atmosphere, where prosecutors’ conduct is under intense scrutiny—it also serves to taint all prosecutors and erodes faith in the criminal justice system.
    To conclude, a court’s identification of a devious trial strategy on the State’s part in seeking an LIO will likely prevent reformation to an LIO on appeal and could bar submission of an LIO of recklessness at trial. We don’t need that precedent. Let not an undesired phoenix rise from Collier’s ashes.

Endnotes
1 See http://www.merriam-webster.com/dictionary/phoenix.
2 Hicks v. State, No. PD-0495-11, 2012 Tex. Crim. App. LEXIS 865 (Tex. Crim. App. June 27, 2012); Bowen v. State, No. PD-1607-10, 2012 Tex. Crim. App. LEXIS 817 (Tex. Crim. App. June 20, 2012).
3 Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999).
4 Incongruously, the same limitation on reforming a judgment to an LIO did not apply where there was no jury charge—in bench trials.
5 My gratitude to Professor George Dix, George R. Killam, Jr. Chair of Criminal Law at the University of Texas, Austin, for alerting me to the fact that Hicks does not address art. 21.15 and potentially cracks the door to improper gamesmanship.
6 The “primary duty” of prosecutors “is not to convict but to see that justice is done.”  Tex. Code Crim. Proc. art. 2.01.
7 The CCA questioned the lower court’s reliance on precedent. The authority had actually been overruled.
8 See Collier, 999 S.W.2d at 779.
9 See Haynes v. State, 273 S.W.3d 183 (Tex. Crim. App. 2008).
10 Bowen involved a theft-type offense where, although the State proved the “essential elements” of misapplication of fiduciary property offense, it failed to prove the “aggravating element” of the value of the property misapplied. Whether this factor affords the basis for a principled distinction in other offenses without a similar aggravating element remains to be seen. Two cases discussed by the majority, Lawrence and Haynes, also involved crimes with “aggravating elements” beyond those required for a crime with mere “essential elements.” See Haynes, 273 S.W.3d at 183 (family violence assault); Lawrence v. State, 106 S.W.3d 141 (Tex. App.—Amarillo 2003, no pet.) (bodily injury to a person over 65 years of age).
11 See Tolbert v. State, 306 S.W.3d 776 (Tex. Crim. App. 2010).
12 See, e.g., Ex parte Masonheimer, 220 S.W.3d 494 (Tex, Crim. App. 2007) (repeated Brady violations resulted in double-jeopardy bar against third trial).
13 Presumably, the issue of gamesmanship was not briefed in the case.
14 See Tex. Code Crim. Proc. art. 37.09 (Lesser Included Offense).
15 Article 21.15 not only addresses charging instruments. As its opening language reveals, it also applies “[w]henever recklessness or criminal negligence enter into or is a part of element of any offense.” As the language of the article carries on to expressly address charging instruments, this preliminary language, if it means anything at all, must address something else. Could this language be interpreted to include LIO instructions on recklessness (and criminal negligence) not included in a charging instrument but submitted in a jury charge?