Comment

When a trial court gives a lesser included offense instruction, what should the court tell the jury about the order in which it is to consider the greater offense charged in the indictment and the lesser included offense or offenses? Should the court instruct the jury that it may only consider a lesser offense if it has found the defendant “not guilty” of the offense charged in the indictment? Or may the jury “consider” any lesser offenses before deciding whether the defendant is guilty of the offense charged in the indictment? If so, must the jury nevertheless return to the charged offense and find the defendant “not guilty” of the charged offense before returning a “guilty” verdict on a lesser offense? If the jury cannot unanimously agree that the defendant is “not guilty” of the offense charged in the indictment, may it still return a “guilty” verdict on a lesser offense?

Texas law on these questions is not clear. The two leading decisions from the court of criminal appeals are Boyett v. State, 692 S.W.2d 512 (Tex. Crim. App. 1985), and Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009).

The traditional approach has been to give a “stair-step” instruction, in which the court first instructs the jury to consider the offense charged in the indictment, and then tells the jury that if it has a reasonable doubt about the charged offense it “should consider whether or not the defendant is guilty of the lesser included offense of [offense named].” Boyett, 692 S.W.2d at 515. In some cases, juries have been told that if they have a reasonable doubt about whether the defendant is guilty of the offense charged in the indictment, “you will acquit the defendant” of the charged offense and “next consider” a lesser offense. Barrios, 283 S.W.3d at 349 (emphasis added).

Traditionally, instructions have also included a “benefit-of-the-doubt” instruction along the following lines:

In Boyett, the defendant complained because the instruction did not explicitly instruct the jury that it had to “acquit” him of the greater offense before considering his guilt of any lesser offense. The court suggested that the instruction should have told the jurors that if they had a reasonable doubt about whether a defendant was guilty of the greater offense “they should acquit [the defendant] and proceed to consider whether [he] was guilty” of the lesser offense. Boyett, 692 S.W.2d at 515. The court ventured that the instruction given might be reversible error if a defendant objected to it, but declined to find fundamental error.

In Barrios, by contrast, the defendant complained of the exact opposite. The instruction there did use the word acquit, but the defendant argued that the instruction was inconsistent with the “benefit-of-the-doubt” instruction—that if the jury believed he was guilty of either the greater or the lesser offense, but had a reasonable doubt about which offense he was guilty of, it should “resolve that doubt in the defendant’s favor, and find him guilty” of the lesser offense. By requiring an acquittal of the greater offense before the jury could consider his guilt of the lesser offense, he pointed out, the benefit-of-the-doubt instruction would be superfluous. Barrios, 283 S.W.3d at 352.

Barrios noted that in Boyett the court had said that the “better practice” would have been to tell the jury “if it has a reasonable doubt as to whether the defendant is guilty of any offense in the charge, it will find the defendant not guilty. . . .” Barrios, 283 S.W.3d at 352. The court disapproved of the word acquit and suggested a new “better practice”: trial courts should “include an instruction that explicitly informs the jury that it may read the charge as a whole” and tell the jury that “if you are unable to agree [on the greater offense], you will next consider” the lesser offense, so that the charge “makes it clear to the jury that, at its discretion, it may consider the lesser-included offenses before making a final decision as to the greater offense.” Barrios, 283 S.W.3d at 353 (emphasis added).

Barrios has been applied most notably in Dixon v. State, 358 S.W.3d 250, 261–62 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d), in an opinion authored by then- Justice Alcala. The Committee has several concerns about the decision. Dixon held—relying on Barrios—a trial judge did not err against the defendant when, in response to a question from the jury, the trial judge told the jury that it need not by a unanimous vote find the defendant “not guilty” of the charged offense before convicting him of the lesser included offense.

The Committee has several concerns regarding the suggestion in Dixon that under Barrios a jury need never reach a unanimous “not guilty” decision on the charged offense before finding a defendant guilty of a lesser included offense.

First, the language about the “better-practice” instruction in Barrios is dicta and thus not binding. Second, the rationale of Barrios seems to depend on the necessity of giving the “benefit-of-the-doubt” instruction. At least one appellate court, however, has said that such an instruction is not required. Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi–Edinburg 1988, pet. ref’d); but see McCall v. State, 14 Tex. Ct. App. 353 (1883) (cited in Barrios and holding that it would “ordinarily” be error not to give the instruction when requested). Third, and most importantly, however, Barrios is ambiguous. It can be read to mean only that the jury may “consider” lesser offenses before deliberating about the charged offense, but that it must still make a “final decision”—i.e., reach a “not guilty” verdict—on the charged offense before returning any “guilty” verdict on a lesser offense. Alternatively, though, the Barrios discussion may be interpreted as at least assuming that if a jury is unable to agree on a verdict on the offense charged in the indictment, the jury may find the defendant guilty of a lesser offense without returning a finding of “not guilty” on the offense charged in the indictment.

Generally, the case law fails to distinguish between two quite different matters. First is the order in which a jury may discuss—or perhaps “consider”—offenses covered in the instructions. Second is the question of what, if any, definitive vote is required before a jury may find a defendant guilty of a lesser included offense. The California Criminal Jury Instruction drew the distinction by telling the jury:

Judicial Council of California Criminal Jury Instructions (2014 ed.) CALCRIM No. 3517.

Barrios failed to consider that the legislature may have given the state a right to have a jury make a final decision on a lesser included offense only if the jury has unanimously voted “not guilty” on the charged offense. Article 37.08 of the Texas Code of Criminal Procedure provides:

Tex. Code Crim. Proc. art. 37.08.

This arguably limits the verdicts a trial court can accept if a case is “a prosecution for an offense with lesser included offenses.” A verdict other than “guilty” of the charged offense or “not guilty” of any other offense must reflect that the jury “find[s] the defendant not guilty of the greater offense, but guilty of [a] lesser included offense.” The provision could easily, but does not, authorize a verdict of “guilty of a lesser included offense.” Reading article 37.08 in this way would be consistent with article 37.14, which makes clear that conviction of a lesser included offense is in substance an acquittal of the charged crime. See Tex. Code Crim. Proc. arts. 37.08, 37.14.

Barrios is also arguably consistent with this approach. In its penultimate discussion of what may be “a better practice,” the court assumed that the instructions should “make[] clear to the jury that, at its discretion, it may consider the lesser-included offenses before making a final decision as to the greater offense.” Barrios, 283 S.W.3d at 353. This appears to assume the jury will have to make a final decision as to the charged offense, apparently before voting on the lesser included offense. But the instruction must make clear that before making that final decision on the charged offense, the jurors may read the instructions about the lesser included offenses and, of course, discuss these as possible alternatives to the charged offense. Jurors, in other words, may consider in deciding how to vote on the charged offense that a “not guilty” verdict on that offense will move their analysis to whether the defendant should be convicted of a lesser offense. Discussion of this before an up-or-down vote on the charged offense, the instructions should make clear, is permissible.

If the state has a right to have a jury reach a unanimous decision of “not guilty” on the charged offense before voting to convict of a lesser included offense, it may certainly waive that right. Such a waiver apparently was made in Kirk v. State, 421 S.W.3d 772, 784–86 (Tex. App.—Fort Worth 2014, pet. ref’d), when the trial court gave an instruction at the state’s behest after the jury had deadlocked, informing them that they could consider lesser offenses.

Committee’s Approach. The Committee believed that the jury should be told early in the instructions that the case presents it with the task of addressing more than the charged offense.

The Committee was persuaded that Texas law gives the state a right to have a jury instructed that it may not convict a defendant of a lesser included offense unless the jury first reaches a unanimous vote of “not guilty” of the charged offense. The Committee recognized, however, that some disagree with this reading of current law. Consequently, it offers two instructions. The instruction at CPJC 5.3 embodies the Committee’s conclusion that the jury should be told it may return a verdict of “guilty” of a lesser included offense only after acquitting the defendant of the greater offense. The instruction at CPJC 5.4 tells the jury that it may alternatively find the defendant guilty of a lesser included offense if it has made all reasonable efforts to reach a unanimous verdict on the greater offense but was unable to reach such a verdict.

Both instructions are designed to tell juries that despite any limitation on voting for a conviction on a lesser included offense, the jurors are free to discuss or consider all of the offenses covered in the instructions at any time during their deliberations.

The instructions also continue traditional Texas practice of adding a “benefit-of-the-doubt” instruction. Most or all of the substance of this may be covered by other portions of the instruction. But given the importance of the presumption of innocence and the risk of juror confusion during the complex analysis required by lesser included offense situations, the Committee thought the better course was to include the provision.

The order of the verdict forms merits a brief comment. Generally, the Committee has suggested that the “not guilty” alternative be the first alternative presented to the jury. When lesser included offenses are involved, however, this did not seem a practical approach. The instructions direct the jury to make decisions in a particular order, and the verdict forms, in the Committee’s view, should be presented to the jury in the order in which those decisions need to be made. As a result, the “not guilty” verdict form is the last one presented to the jury.

The following table outlines the similarities and differences between the two kinds of instructions illustrated by CPJC 5.3 (the “acquit first” approach) and CPJC 5.4 (the “reasonable efforts” approach):