McKinney, Steve Charles

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS.

PD-0594-05, 0595-05, 0596-05

STEVE CHARLES McKINNEY, Appellant

v.

THE

STATE OF TEXAS

ON APPELLANT = S PETITION FOR DISCRETIONARY REVIEW

FROM

THE FIRST COURT OF APPEALS

FORT BEND COUNTY

Johnson,

J., delivered the opinion of the Court in which Meyers, Price, Womack,

Holcomb and Cochran, JJ., joined . Keller, P.J., filed a concurring

opinion in which Keasler, Hervey and Cochran, JJ., joined .

O

P I N I O N

An

indictment returned in 2002 charged appellant with three counts of capital

murder. Tex. Penal Code '

19.03. [1] Appellant plead not guilty. The state presented evidence at the guilt

phase of appellant = s jury

trial that, in October 2001, appellant and a female companion drove an

acquaintance, Christopher Torres, to the home of Guillermo Arvizu, the intended

victim, who was a known gang member, drug dealer, and firearms collector. [2] Appellant and his female companion left

Torres at Arvizu = s home

and returned approximately twenty minutes later to pick up Torres. When Torres failed to appear, appellant took

a sawed-off shotgun from his truck and, as he

approached the house, accidentally discharged the shotgun. Appellant reloaded the shotgun and fired

through the front door, killing Arvizu.

Appellant opened the front door and entered the house, where he saw

Torres interrogating Arvizu = s

pregnant wife and five-year-old daughter at gunpoint. As appellant left the house, Torres fatally

shot Arvizu = s wife

and daughter. Appellant later helped

Torres dispose of the pistol used to kill Arvizu = s

wife and daughter. [3]

Appellant

requested and received a jury instruction on the lesser-included offense of

murder. [4] The jury convicted appellant of the

lesser-included offense in the death of Arvizu and also of capital murder in

the deaths of Arvizu = s

wife and daughter. [5] The jury found sufficient mitigating

circumstances to preclude the imposition of the death penalty, and the trial

court sentenced appellant to life imprisonment in the Texas Department of

Criminal Justice B Correctional

Institutions Division on each of the three counts.

Appellant

appealed, asserting that the evidence was both legally and factually

insufficient to show that appellant possessed the intent required to be

convicted of Avizu = s murder.

McKinney v. State , 177 S.W.3d 186 (Tex. App. B Houston

[1st Dist.] 2005). The court of appeals,

relying on Bradley v. State , [6]

State v. Lee , [7]

and State v. Yount , [8]

reluctantly found that appellant was estopped from challenging the legal

sufficiency of the evidence on the murder conviction because he had requested

and received a jury instruction on the lesser-included offense of murder. The court of appeals also found that the

evidence, when viewed neutrally, was factually sufficient to support the guilty

verdict returned against appellant.

Although

the court of appeals affirmed the decision of the trial court, it questioned

the continued viability of the estoppel doctrine under these

circumstances. Perhaps in anticipation

of a ruling from this Court that the estoppel doctrine is no longer viable, the

court of appeals conducted a legal-sufficiency review of the evidence. Viewing the evidence in a light most

favorable to the verdict, the court of appeals concluded that any rational

trier of fact could have found appellant guilty of murdering the victim beyond

a reasonable doubt. Appellant petitioned

for discretionary review, and we granted review on three grounds. [9] We

affirm the judgment of the court of appeals.

The

Lesser-Included-Offense Instruction

This

Court has implemented a two-prong test to determine whether a charge on a

lesser-included offense should be given. Mathis v. State , 67 S.W.3d 918,

925 (Tex. Crim. App. 2002)(citing Aguilar v. State , 682 S.W.2d 556 (Tex.

Crim. App. 1985)). The first step is to

determine whether the offense is a lesser-included offense of the offense

charged. Id. Here, appellant,

charged with capital murder, requested a lesser-included instruction on

murder. We have recognized that murder

is a lesser-included offense of capital murder. Moore v. State , 969

S.W.2d 4, 9 (Tex. Crim. App. 1998); Tex.

Code Crim. Proc. art. 37.09(1).

Therefore, appellant satisfies the first prong of the test.

The

second prong of the test then requires an evaluation to determine whether some

evidence exists that would permit a jury to rationally find that, if the

defendant is guilty, he is guilty only of the lesser offense. Mathis , 67 S.W.3d at 925 . In

other words, the evidence must establish the lesser-included offense as a

valid, rational alternative to the charged offense. Wesbrook v. State ,

29 S.W.3d 103, 113 (Tex. Crim. App. 2000).

If, as here, facts are elicited during trial that raise an issue of the

lesser-included offense, and the charge is properly requested, then a

charge must be given. Ross v. State , 861 S.W.2d 870, 877

(Tex. Crim. App. 1993)(op. on reh = g.).

At

trial, the state introduced appellant = s

voluntary written statement. In it,

appellant stated that Torres asked him to bring a shotgun with him to Arvizu = s house A in

case there was trouble. @ When Torres did not appear at the designated

time to be picked up, appellant went to Arvizu = s

front door carrying a shotgun. Appellant

admits that he discharged the first shot into the ground outside of the front

door, reloaded, cocked the shotgun, and then fired the second shot through the

front door when he heard voices on the other side of the door. Nothing in the trial-court record suggests

that appellant killed Arvizu while attempting to commit or committing either

robbery or burglary, [10]

and appellant was charged with and convicted of killing Arvizu = s wife and daughter only as a

party. Trial testimony raised the

possibility that appellant was acting as Torres =

backup and that he may not have intentionally fired the shotgun. In these

circumstances, murder is a viable alternative to capital murder, the offense

charged. [11] Thus, appellant satisfies the second prong of

the test outlined in Mathis and the trial court, upon appellant = s request, correctly instructed the jury on the

lesser-included charge of murder.

The

Estoppel Claim

The

estoppel rule, as it pertains to instructions on lesser-included offenses,

first appeared as dicta in Bradley, a plurality opinion. [12] Bradley was indicted and tried for murder,

but the jury convicted him of the lesser-included offense of voluntary

manslaughter, despite the defendant = s

A vociferous[] @ objection

to this lesser-included instruction. Id.

at 848. The Court overturned Bradley = s conviction.

We therefore conclude

that, on the facts of this case, voluntary manslaughter should not have been

charged as a lesser included offense of murder over the objection of the

accused. Thus, we cannot resort to the rule that proof of a greater offense

will sustain a conviction for the lesser included offense to justify appellant = s conviction in this case. Furthermore, because voluntary manslaughter

was not available to be charged as a lesser included offense to murder, the

evidence must establish every element of 19.04, as an offense in its own

right. Because the evidence did not

raise, much less prove beyond a reasonable doubt, the element of sudden passion

in this case, appellant = s

conviction must be reversed and a judgment of acquittal entered.

Id. at 853. This Court stated in dicta at the end of its

opinion that, by invoking the benefit of an instruction on a lesser-included

offense A 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 [lesser] offense. @ Id.

In

1991, that dicta became a new rule of estoppel in Lee , 818 S.W.2d 778 ,

another plurality opinion. Lee was

indicted for murder, and the jury, upon his request, was instructed on the

lesser-included offense of voluntary manslaughter and convicted him of that

offense. Id. at 780-81 . Lee appealed, asserting that no evidence

existed to support a finding of guilt on voluntary manslaughter because there

was no evidence of the existence of the required element of sudden

passion. Id at 780. Although this Court acknowledged that the

estoppel language contained in Bradley was dicta, it nevertheless

reversed the appellate court = s

judgment and order of acquittal, reinstated the conviction and sentence of the

trial court, and explicitly held that, by invoking the benefit of a

lesser-included-offense instruction at trial, by either explicitly requesting

or failing to object to its submission to the jury, the defendant was estopped

from complaining on appeal that the evidence failed to establish the requisite

elements of the lesser offense. Id. at 781 .

The

most recent articulation of the estoppel rule established in Lee appeared

in 1993 in Yount , 853 S.W.2d 6 .

The indictment charged Yount with three counts of involuntary

manslaughter. The defendant requested an

instruction on the lesser-included offense of misdemeanor driving while

intoxicated, and the jury found the defendant guilty of that offense. Id. at 7 . Yount then filed a motion to set aside the

judgment because the statute of limitations had run on the misdemeanor offense.

Id. Although Yount did not

involve a waiver of legal-sufficiency review, the majority opinion quoted Lee

and relied on its rationale in holding that the defendant waived his

challenge to the misdemeanor offense of driving while intoxicated when he

requested that an instruction of the lesser-included offense be submitted to

the jury. Id. at 9.

Since

Yount , there has been a significant confusion among the courts of

appeals as to whether, on appeal, the estoppel doctrine applies to challenges

to legal sufficiency of the evidence when a defendant requested and received

instructions on lesser-included offenses.

See McLendon v. State , 167 S.W.3d 503 (Tex. App. B Houston [14th Dist.] 2005, no

pet.)(questioning A soundness @ of estoppel rule despite application

of rule); Castillo v. State , 7 S.W.3d 253 (Tex. App. B Austin 1999, pet. ref = d.)(questioning continued A viability @

of the estoppel rule despite application of rule); Otting v. State , 8

S.W.3d 681 (Tex. App. B

Austin 1999, pet. ref = d.)(extending

estoppel rule to factual sufficiency challenges); Bisco v. State , 964

S.W.2d 29 (Tex. App. B Tyler

1997, pet. ref = d.)(extending

estoppel rule to both legal- and factual-sufficiency challenges); Grant v.

State , 950 S.W.2d 450 (Tex. App. B Beaumont

1997, pet. ref = d.)(applying

estoppel rule to voluntary-manslaughter convictions); Tamez v. State ,

865 S.W.2d 518 (Tex. App. B Corpus

Christi 1993, pet. ref = d.)(same). If the estoppel rule is still viable, we must

then consider whether the holding in Lee can be extended to estop

defendants from challenging the factual sufficiency of the evidence on any

appeal or whether the estoppel rule applies to only voluntary-manslaughter

cases in which the appellant challenges the existence of evidence of sudden

passion.

Appellant

asserts in his first two grounds for review that, when the legal sufficiency of

the evidence is challenged and an instruction on a lesser-included offense is requested

and given, applying the estoppel bar A across

the board @ to all

criminal cases violates due process. In

particular, appellant contends that: (1) a defendant has an absolute right to

challenge the legal sufficiency of the evidence on direct appeal, but that the

estoppel rule effectively forces a defendant to waive this right if the request

for an instruction on a lesser-included offense is granted; and (2) application

of the estoppel rule acts as a constructive guilty plea, thereby relieving the

state of its duty to prove its case beyond a reasonable doubt and the trial

court of its duty to admonish the defendant.

Consequently,

appellant contends that the holding in Lee should be narrowly construed

to estop a defendant from challenging the sufficiency of the evidence only as

it pertains to the sudden- passion element of voluntary manslaughter in cases

arising before a 1993 amendment to the Texas Penal Code. At the time Lee was decided, Tex. Penal Code '

19.04 defined voluntary manslaughter as causing the death of another individual

A under the immediate influence of sudden

passion arising from an adequate cause. @ [13] The current statute, which applies here, has

deleted sudden passion as an element of the offense that must be proved during

the guilt phase and transformed it into a defense to murder that must be proved

by the defendant in the punishment phase by a preponderance of the evidence. [14]

Appellant = s case is readily distinguishable from Bradley ,

Lee , and Yount . The

opinions in Bradley and Lee were plurality opinions in cases in

which the defendants were charged with murder and appealed their

voluntary-manslaughter convictions on the grounds that the state failed to

disprove the existence of sudden passion and thereby maintain a murder

conviction.

Ostensibly,

the Bradley Court created the estoppel rule, as appellant suggests, to

prevent the state from having to prove an element (sudden passion) on appeal

that it sought to disprove at trial. The

Lee Court subsequently seized on this dicta and transformed it into binding

case law. There is, however, no case law

from this Court indicating that the holding in Lee was meant to be

extended beyond this very narrow group of cases. Yount is also distinguishable in that

it did not involve an waiver of legal-sufficiency review, but rather applied Lee

to preclude the defendant from raising a challenge based on a claimed

violation of the statute of limitations, an issue that attacks the jurisdiction

of the court.

In

this case, appellant was charged with capital murder. He requested and received a lesser-included

offense instruction on murder and was convicted of this lesser offense. The facts of appellant = s

case indicate that, while the jury was also given an instruction on manslaughter,

it found him guilty of murder.

Therefore, unlike the defendants in Bradley and Lee ,

appellant is not challenging the

sudden-passion element of a

voluntary-manslaughter conviction.

Furthermore, Lee is not applicable to appellant = s case because, by altering the

definition of voluntary manslaughter, the legislature prevented the state from

being placed in the untenable position of having to both attempt to disprove

sudden passion at trial and then prove the very same element on appeal.

Neither

the United States nor Texas Constitutions provide that a defendant has a right

to appeal a criminal conviction; the right to appeal is created by statute. Griffin

v. Illinois , 351 U.S. 12, 18 (1956); Griffin v. State , 145 S.W.3d

645, 646 (Tex. Crim. App. 2004); Tex.

Code Crim. Proc . art. 44.02. This

Court has in the past permitted a defendant to challenge the legal [15]

as well as the factual sufficiency of the evidence on direct appeal. [16] The inquiry on review of the legal

sufficiency of the evidence is whether any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt after

viewing the evidence in a light most favorable to the verdict. Jackson v. Virginia , 443 U.S. 307,

318-19 (1979); Ross v. State , 133 S.W.3d 618, 620 (Tex. Crim. App.

2004). Because the concern is ensuring

that the essential elements of the offense are proven beyond a reasonable

doubt, it makes little sense to preclude a defendant from challenging the legal

sufficiency of the evidence on appeal simply because he requested and received

an instruction on a lesser-included offense.

Likewise, it makes little sense to extend the estoppel rule to preclude

a defendant from challenging the factual sufficiency of the evidence.

Thus,

we hold that the estoppel rule will not be applied to all criminal cases where

the legal sufficiency of the evidence is challenged and a lesser-included

offense instruction is requested and received, nor should the rule be extended

to preclude challenges to factual sufficiency.

On the contrary, application of this estoppel rule should be confined

exclusively to the limited number of cases that challenge the sufficiency of

the evidence as it relates to the sudden-passion element of voluntary

manslaughter and that arose before September 1, 1994. [17]

Appellant

also asserts that application of the estoppel rule acts as a constructive

guilty plea, thereby relieving the state of its duty to prove its case beyond a

reasonable doubt and the trial court of its duty to admonish the

defendant. Appellant = s reliance on this position is

misplaced. The court of appeals

correctly pointed out that, when a defendant requests a charge on a

lesser-included offense, he admits only that there is some evidence that, if

guilty, he is guilty of that lesser offense. McKinney , 177 S.W.3d at 193

(citing Rousseau v. State , 855 S.W.2d 666, 672-73 (Tex. Crim. App.

1993)). It does not mean that the

evidence proves that appellant is guilty of the lesser offense beyond a

reasonable doubt. On the contrary, the

jury still must determine the weight and credibility of the evidence before

deciding to convict a defendant of the offense charged, the lesser-included

offense, or neither.

The court of appeals followed the holding of

Yount and its progeny in ruling that appellant was estopped from

challenging the legal sufficiency of the evidence, but it also (perhaps with an

abundance of hope) performed both legal- and factual-sufficiency analyses. Under the rule we announce today, those sufficiency

analyses were properly conducted, and we therefore affirm the judgment of the

court of appeals.

Delivered: November 15, 2006

Publish

[1]

Tex. Penal Code

' 19.03 Capital Murder

(a)

A person commits an offense if the person commits murder as defined under

Section 19.02(b)(1) and:

***

(2)

the person intentionally commits the murder in the course of committing or

attempting to commit . . . burglary,

robbery, . . .;

***

(8) the person murders an individual under six years

of age; . . ..

[2]

Sergeant Robert Becker of the Fort Bend Sheriff = s Office testified at trial that multiple weapons were

recovered from Arvizu = s residence, including a .45 caliber assault rifle, a

.40 caliber semi-automatic handgun, two 12-gauge shotguns, and an AR-15 assault

rifle.

[3]

After police arrived, they discovered a

four-year-old female hiding in the bathroom.

The child was unharmed.

[4]

According to the trial-court record, the judge

instructed the jury that A If you find from the evidence beyond a reasonable

doubt that . . . the defendant . . . either acting alone or with another or

others as a party to the offense did intentionally and knowingly cause the

death of [the decedent] by unlawfully shooting him with a firearm, but you have

reasonable doubt as to whether the defendant was then and there engaged in the

commission of or attempting to commit robbery and burglary of a habitation at

the time of the said shooting, if any, then you will find the defendant guilty

of murder, but not capital murder. @

[5]

In an earlier trial, Christopher Torres was

convicted of two counts of capital murder in the shooting deaths of Arvizu = s wife and child and was sentenced to life

imprisonment. Torres v. State ,

2004 Tex. App. LEXIS 6334 (2004). In

appellant = s trial, the jury received an instruction on the law

of parties, and appellant was also convicted of the capital murders of Arvizu = s wife and child.

See Tex. Penal Code ' ' 7.01, 7.02.

[6]

688 S.W.2d 847 (Tex. Crim. App. 1985) , overruled on other grounds by Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998) .

[7]

818 S.W.2d 778 (Tex. Crim. App. 1991), overruled

on other grounds by Moore v. State , 969 S.W.2d 4 (Tex. Crim. App. 1998).

[8]

853 S.W.2d 6 (Tex. Crim. App. 1993)(op. on reh = g.).

[9]

(1) The court of appeals erred in holding that

appellant was estopped from complaining that the evidence was legally

insufficient to support his conviction for murder because he requested and was

convicted of the lesser-included offense of murder;

(2)

Assuming arguendo that the court of appeals was bound by this Court = s estoppel jurisprudence, are those cases still good

law, or otherwise, were they improperly decided;

(3) Assuming arguendo that the court of appeals

is not bound by this Court = s estoppel jurisprudence, or should this Court agree

with the court of appeals = s reasoning that applying estoppel to this case and

other criminal cases is A inappropriate, @ the

court of appeals = s legal sufficiency review of appellant = s conviction of murder is conclusory, incomplete, and

does not apply the proper standard of review, i.e., whether the evidence,

viewed in the light most favorable to the verdict, was legally sufficient to

support the conviction of murder beyond a reasonable doubt.

[10]

Detective Scott Chappel testified that, despite

the presence of many valuable items in the house at the time of the killings,

there was no indication that any items were removed from the house after the

crime.

[11]

Tex. Penal Code ' 19.02

Murder

(a)

In this section:

(1)

A Adequate cause @ means

cause that would commonly produce a degree of anger, rage, resentment, or

terror in a person of ordinary temper, sufficient to render the mind capable of

cool reflection.

(2)

A Sudden passion @ means

passion directly caused by and arising out of provocation by the individual

killed or another acting with the person killed which passion arises at the

time of the offense and is not solely the result of former provocation.

(b)

A person commits an offense if he:

(1)

intentionally or knowingly causes the death of an individual;

(2) intends to cause serious

bodily injury and commits an act clearly dangerous to human life that causes

the death of an individual . . .

[12] Four judges

concurred in the result, and two judges dissented.

[13]

Tex. Penal Code ' 19.04

Voluntary Manslaughter

(a)

A person commits an offense if he causes the death of an individual under

circumstances that would constitute murder under Section 19.02 of this code,

except that he caused the death under the immediate influence of sudden passion

arising from an adequate cause.

(b)

A Sudden passion @ means

passion directly caused by and arising out of provocation by the individual

killed or another acting with the person killed which passion arises at the

time of the offense and is not solely the result of former provocation.

(c)

A Adequate cause @ means

cause that would commonly produce a degree of anger, rage, resentment, or

terror in a person of ordinary temper, sufficient to render the mind incapable

of cool reflection.

(d) An offense under this section is a felony of the

second degree.

[14]

Tex. Penal Code ' 19.04

Manslaughter

(a)

A person commits an offense if he recklessly causes the death of an individual.

(b)

An offense under this section is a felony of the second degree.

[15] Jackson v. Virginia , 443 U.S. 307, 318-19

(1979); Ross v. State , 133 S.W.3d 618, 620 (Tex. Crim. App. 2004).

[16]

Clewis v. State , 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Watson

v. State , ___ S.W.3d ___ (Tex. Crim. App. No. PD-0469-05, delivered October

18, 2005).

[17]

The 1993 amendment to Tex. Penal Code ' 19.04 took effect on September 1, 1994.