Opinion
PD-0412-23
11-01-2023
SALAR BABAN, Appellant v. THE STATE OF TEXAS
DISSENT TO REFUSAL OF STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY.
Keller, P.J., filed a dissenting opinion in which Slaughter, J., joined.
DISSENTING OPINION
Appellant was convicted of a purported lesser offense that the court of appeals has concluded should not have been submitted to the jury. The record reveals no defense objection to the submission of the lesser offense. In fact, the record reveals no information at all about how the lesser offense came to be in the jury charge. What we do know is that the defense knew the lesser offense was in the jury charge because it was read aloud to the jury, both in the body of the jury instructions and in the verdict forms. The court of appeals found error and egregious harm in the submission of the lesser offense and reversed the conviction. The State now contends that Appellant's failure to object is fatal to his claim. The State's contention is inartfully framed, but its discussion points out that the record is silent on how the lesser offense came to be in the jury charge and that the submission of a lesser offense often depends on strategy and tactics.
I would grant review to determine whether the silence of the record is fatal to Appellant's complaint because of the possibility that he requested the lesser-offense submission and, so, would be estopped from challenging its submission. I would also grant review to determine whether a failure to object to a lesser-offense submission should estop a complaint when the defense knew that the lesser-offense was being submitted and benefitted from its submission. Both of these issues are open questions that the facts of the case before us squarely implicate.
I. BACKGROUND
Appellant was indicted for family-violence assault by occlusion. The less serious offense of family-violence bodily-injury assault was submitted in the jury charge as a lesser-included offense. The record does not include a specifically designated jury-charge conference or any other discussion of how the lesser offense came to be in the charge, but the docket sheet shows that there was a forty-four minutes conference at the bench right before the trial judge read the jury charge aloud to the jury. The court reporter's record contains a notation that the jury charge was read, and it transcribes the trial judge's reading of the verdict forms:
The last two pages contain the verdict forms. Choose one. "We, the jury, find the defendant, Salar Baban, not guilty." If this is your unanimous verdict, your presiding juror will so indicate by signing on the appropriate line and then printing his or her name immediately beneath.
"We, the jury, find the defendant, Salar Baban, guilty of assault of a family member by impeding breathing with prior conviction as charged in the indictment." If this is your unanimous verdict, you will so indicate by having the presiding juror sign on the appropriate line and then printing his or her name immediately beneath.
"We, the jury, find the defendant, Salar Baban, guilty of assault-family member with prior conviction." If this is your unanimous verdict, you will so indicate by having the presiding juror sign on the appropriate line and then printing his or her name immediately beneath.
The jury chose the third verdict option-convicting Appellant of the less serious offense of family-violence bodily-injury assault.
Based on a recent case from this Court holding that bodily-injury assault is not a lesser-included offense of occlusion assault, the court of appeals found the jury charge to be erroneous.Because the record did not show that Appellant objected to the inclusion of bodily-injury assault as a lesser-included offense, the court of appeals conducted an analysis for egregious harm. The court of appeals found the error egregiously harmful because Appellant was convicted of an offense that he was not indicted for.
Ortiz v. State, 623 S.W.3d 804 (Tex. Crim. App. 2021).
Baban v. State, 672 S.W.3d 655, 660-61 (Tex. App.-Houston [14th Dist.] 2023).
Id. at 661.
Id.
The State contends that Appellant's failure to object on the record is fatal to his complaint. The State notes that a lesser-included offense is not law applicable to the case, even if otherwise raised by the evidence, if the defense did not request it and it was not submitted. The State says that we have found this to be so because whether to submit a lesser -included offense frequently depends on trial strategy and tactics. The State seeks to apply this rule of forfeiture when a lesser-offense is submitted but not objected to. The State's reasoning is that a lesser-included offense is never law of the case, and so a complaint about its presence or absence must be preserved at trial.
II. ANALYSIS
A. The State's complaint is inartfully framed but points to important differences between lesser-included-offense instructions and other types of jury instructions.
The State's reasoning is problematic. If a lesser-included offense is neither requested nor submitted, it is not law applicable to the case, and so its absence from the jury charge is not error.It is not error for a jury charge to omit an instruction that does not have to be there. The State wants to apply this rule to instructions that are in the jury charge, but are not objected to, but the rule regarding omissions from the charge does not neatly translate to that situation. If a lesser-included offense is submitted, even if not requested, the trial judge has a duty to submit it correctly. It would seem to be error for a jury charge to include a lesser-offense instruction that should not be in the jury charge (the lesser offense not being included within the offense in the indictment).
Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010).
See Vega v. State, 394 S.W.3d 514, 515-16 (Tex. Crim. App. 2013) ("when a trial judge instructs on a defensive issue, he must do so correctly"); Tolbert, 360 S.W.3d at 780 ("lesser-included instructions are like defensive issues" for purposes of preserving complaints).
But the State is correct that defensive instructions and lesser-included-offense instructions are different from other types of jury instructions. Strategic and tactical considerations make them optional with the parties. Those same sorts of considerations can give one or both parties an incentive to not object when one of these types of instructions is in the jury charge but does not belong there. In particular, a defendant stands to benefit from the inclusion of a lesser offense that might divert the jury from convicting him of the greater, indicted offense. And that is exactly what happened in this case.
See Woodard v State, 322 S.W.3d 648, 660 (Tex Crim App 2010) (Keller, PJ, concurring) (citing George E. Dix & Robert O. Dawson, 43 TEXAS PRACTICE, § 36.50 at 249 (Supp. 2009)); Alvarez v. State, 571 S.W.3d 269, 270 (Tex. Crim. App. 2019) (Keller, P.J., dissenting to refusal to grant petition for discretionary review) (citing Woodard, citing Dix & Dawson).
B. A silent record should estop a complaint because the defendant may have requested the lesser-offense submission.
If a defendant requests a charge on a lesser offense, he is estopped from later complaining about its submission. Even without an explicit request, a defendant is estopped from complaining if he "had some responsibility for the jury instruction" being submitted.
Woodard v. State, 322 S.W.3d 648, 659 (Tex. Crim. App. 2010).
Id.
This Court has held that "the mere absence of a showing of responsibility for the inclusion of the charge on the lesser offense does not give rise to estoppel." But the Court cited no authority for that and failed to even give a reason to support it, and though we repeated that proposition in a later case in dictum, we did not provide any support for it other than citing the case in which it originated. More to the point, our more recent notions of estoppel have expanded it, and we have recognized estoppel to be a flexible doctrine that can bar complaint by a party that has engaged in any conduct inconsistent with his claims.
Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009).
Id.
Woodard, 322 S.W.3d at 659 (citing Trejo).
See Ruffins v. State, 666 S.W.3d 636, 642 (Tex. Crim. App. 2023).
The silence of the record regarding who caused the submission of a lesser-offense instruction is, at least in theory, a problem for a defendant. The appealing party bears the burden of presenting a record sufficient to show that he is entitled to relief. When the record is silent about how the lesser offense came to be in the jury charge, the possibility remains that defense counsel requested it in an off-the-record discussion, or at least, that the defense in fact bears some responsibility for its submission that the record does not reflect. And in this case, there was an extensive discussion off the record, at the bench, immediately before the jury charge was read to the jury.
Davis v. State, 345 S.W.3d 71, 78 (Tex. Crim. App. 2011).
See Woodard, 322 S.W.3d at 660 (Keller, P.J., concurring); Hall v. State, 225 S.W.3d 524, 537 (Tex. Crim. App. 2007) (Keller, P.J., dissenting).
If a defendant gets convicted of a lesser offense and the defense did not in fact bear "some responsibility" for its submission, that absence of responsibility can be alleged and proven in connection with a motion for new trial. The defendant's conviction on the lesser offense would itself raise the visibility of this sort of issue. It is at least arguable that Appellant's failure to raise the issue in a motion for new trial should be taken as some indication that the defense did in fact bear some responsibility in this case for the submission. It is true that Ortiz-the case indicating that the submitted offense in Appellant's case was not in fact a lesser of the indicted offense-was handed down after the time for filing a motion for new trial had passed. But Appellant could have made the same argument that the State made in Ortiz. His failure to do so should not entitle him to a potential windfall now.
And habeas corpus might provide an avenue for clarifying the record regarding whether the defense had in fact requested the instruction. The possibility of such an avenue is another reason not to risk giving a windfall to a defendant who might actually bear some responsibility for the submission of the instruction.
C. Mere acquiescence by the defense should estop the defendant from complaining about the submission of a lesser offense.
In Bradley v. State, we said that acquiescence in the giving of a lesser offense can give rise to estoppel:
Failure to object to the charge when given on the ground that the evidence does not support it would signal acquiescence on the part of the accused in the trial court's judgment that sudden passion was raised [for the submission of the then-lesser-included offense of voluntary manslaughter]. By invoking the benefit of the lesser included offense charge at trial in not objecting to its submission to the jury, an accused will be estopped from then complaining on appeal that the evidence failed to establish all the elements of the offense.
688 S.W.2d 847, 853 (Tex. Crim. App. 1985) (bracketed material inserted, emphasis added). See also Alvarez v. State, 571 S.W.3d 269, 269-70 (Tex. Crim. App. 2019) (Keller, P.J., dissenting from refusal to grant discretionary review).
This passage was dictum, but it shows that the Court has given weight to the idea that knowing acquiescence can give rise to estoppel because a lesser-offense submission seems to have an obvious benefit to the defense. "If submission of a lesser offense were not to the defendant's benefit, one would expect him to complain about it." And the fact that a lesser-offense submission has its own verdict form makes it unlikely that the parties would overlook its presence. Here, where the verdict form was read aloud to the jury, the inference is strong that defense counsel was aware of the lesser- offense submission. As I explained earlier, the majority in Woodard held that the defendant was estopped from complaining about the submission of a lesser-offense instruction if the defense "had some responsibility" for its submission. A defense attorney who knowingly remains silent when the trial judge indicates that a lesser offense will be submitted does, in a real sense, have "some responsibility" for its submission.
Woodard, 322 S.W.3d at 660 (Keller, P.J., concurring). See also Alvarez, supra at 270.
See Woodard, supra at 661.
See supra at n.9.
D. We should grant two additional issues on our own motion to guide the parties.
Because the State's framing of the issue is problematic, I would grant review of the following two issues on our own motion:
1.Is a silent record regarding how a lesser offense came to be in the jury charge fatal to a defendant's complaint about its submission because it is possible that the defense had some responsibility for the submission?
2.Does a defense attorney's knowing acquiescence in the submission of a lesser offense give rise to estoppel because the submission of a lesser offense is ordinarily considered to be beneficial to a defendant?
With these two additional questions, I would grant review. Because the court refuses review, I respectfully dissent.