Comment

If the trial court submits a lesser included offense, the jury must be instructed on how to approach and resolve the multiple offenses before it. In what order must greater and lesser offenses be considered? Under what circumstances may the jury convict on a lesser offense? What if there is disagreement as to which offense a defendant is guilty of? Sandoval v. State, 665 S.W.3d 496 (Tex. Crim. App. 2022), recently answered at least one of these questions.

Jury May Not Convict of Lesser Included Offense without Unanimously Finding Defendant Not Guilty of Greater Offense. Previously in Barrios v. State, the court of criminal appeals appeared to suggest that it might be proper for a jury to convict a defendant of a lesser included offense if it was unable to agree on a greater one. Barrios v. State, 283 S.W.3d 348, 353 (Tex. Crim. App. 2009), abrogated by Sandoval, 665 S.W.3d 496. But in Sandoval, the court foreclosed that possibility based on the plain language of controlling statutes. Article 37.08 is entitled “Conviction of Lesser Included Offense” and provides that “in a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser included offense.” Tex. Code Crim. Proc. art. 37.08.

Agreeing with an intermediate court of appeals, Sandoval read this language to say that “a unanimous finding of guilt on a lesser-included offense necessarily requires a unanimous acquittal on the higher offense.” Sandoval, 665 S.W.3d at 535 (quoting Harris v. State, 287 S.W.3d 785, 790–91 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In other words, “a conviction on a lesser-included offense would necessarily be a verdict of acquittal on the greater offense, not simply a situation where the jury could not agree on the greater offense.” Sandoval, 665 S.W.3d at 535. This, the court held, is reinforced by Tex. Code Crim. Proc. art. 37.14, which says that a conviction for a lesser offense is a bar to retrial for the greater offense. In short, “a jury must be required to agree on an acquittal of the greater offense before it can return a conviction on a lesser-included offense.” Sandoval, 665 S.W.3d at 537.

It should be noted that capital murder has a specific instruction on lesser included offenses that differs from the wording of article 37.08. According to the Penal Code, “If the jury or, when authorized by law, the judge does not find beyond a reasonable doubt that the defendant is guilty of an offense under this section, he may be convicted of murder or of any other lesser included offense.” Tex. Penal Code § 19.03(c). This language does not suggest an acquit-first approach like article 37.08, but since whatever permission to convict on a lesser that section 19.03(c) grants applies to both the jury and the judge, it is doubtful it authorizes a jury’s nonunanimous verdict before convicting of the lesser. Although no court has construed the language of section 19.03(c) in this context, the Committee believed it would likely be interpreted in harmony with (rather than contradiction to) article 37.08, resulting in an acquit-first approach for the offense of capital murder, as any other offense.

Not Clear whether Jury Must Be Told How to Proceed in Deliberating the Various Offenses. Sandoval assumed without deciding that the jury should be expressly told that it could consider greater and lesser included offenses in any order. Sandoval, 665 S.W.3d at 537. This kind of express instruction combined with an acquit-first instruction makes up the modified acquit-first approach. This is practical, as the jury charge is read in its entirety before deliberations, Tex. Code Crim. Proc. art. 36.14, and deliberation on the greater will necessarily include discussion of what elements are or are not proved beyond a reasonable doubt.

Applying the court of criminal appeals’ assumption, the Committee chose to instruct the jury at the beginning of the charge that it will be asked to consider lesser included offenses. The Committee also recommends instructing the jury before the application paragraphs that it may discuss the offenses in any order.

Benefit-of-the-Doubt Instruction. Traditionally, instructions have also included a “benefit-of-the-doubt” instruction along the following lines of the instruction in Barrios, 283 S.W.3d at 350:

Such an instruction has a long pedigree. See McCall v. State, 14 Tex. App. 353, 362 (1883). In Sandoval, the court of criminal appeals assumed its propriety without deciding it. Sandoval, 665 S.W.3d at 537.

Some Committee members viewed the instruction as a specific application of how the presumption of innocence applies even when the jury is convinced of the defendant’s guilt of some offense. Others found it redundant; at least one appellate court has said that a benefit-of-the-doubt instruction is not required where the charge otherwise makes it plain that a reasonable doubt on the greater offense requires acquittal. Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.—Corpus Christi–Edinburg 1988, pet. ref’d); but see McCall, 14 Tex. App. 353 (cited in Barrios and holding that it would “ordinarily” be error not to give the instruction when requested). Other Committee members believed it reintroduced ideas from Barrios now disavowed in Sandoval. That is, inviting the jury to opt for the lesser in case of “doubt” might obfuscate that jurors must first all agree there is reasonable doubt on the charged offense. The Committee opted to follow the court of criminal appeals’ assumption and provide a traditional benefit-of-the-doubt instruction.

Verdict Form Order. The “not guilty” alternative is presented first to maintain consistency with the Committee’s general practice, not because the law requires it.