PROSECUTORS' ALL-OR-NOTHING APPROACH AT TRIAL MAY BACKFIRE

Texas prosecutors may want to hedge their bets more at trial in light of a
June 16 Court of Criminal Appeals opinion.

It has been an unsettled question in Texas whether prosecutors who do not
muster enough evidence to convict a defendant of a certain offense can then
ask appellate judges to convict the defendant of a lesser-included offense.
According to Collier v. Texas, the answer is "no" unless prosecutors first
give jurors the option to convict of a lesser-included offense.

Prosecutors, eager to get the stiffest sentence possible, sometimes hesitate
to give jurors that option, the court explained in Collier. But now
prosecutors who go for the all-or-nothing approach at trial can no longer
get an appellate judge to bail them out on appeal.

"If the trial court does not instruct the jury on the lesser included
offense and neither party seeks such an instruction, then the court of
appeals will not be authorized to reform the judgment," the court held.

The holding will allow defendant John Henry Collier, who was convicted by a
jury of "serious bodily injury to a child," to go free. The 3rd Court of
Appeals in Austin found insufficient evidence to support Collier's
conviction but did conclude there was sufficient evidence to convict Collier
of the lesser-included offense of "bodily injury to a child." The 3rd Court,
however, held that it lacked the authority to reform the judgment, because
the jury had not passed on the lesser-included offense.

The Court of Criminal Appeals agreed in a 4-1-4 plurality opinion. Judge
Stephen W. Mansfield, joined by three judges, wrote the court's decision.
Judge Mike Keasler concurred in a separate opinion, while four judges, led
by Judge Sharon Keller, dissented.

"[A] reformation to the lesser included offense [of bodily injury to a
child] . . . would accord the greatest respect possible to the factfinder's
determination [that Collier was guilty of serious bodily injury] while fully
protecting the defendant's due process right not to be convicted of an
offense that is insufficiently supported by the evidence," wrote Keller.

PROTECT YOURSELF

Representing the state, Jeffrey Van Horn, first assistant state prosecuting
attorney, says he is very disappointed and will seek a rehearing. The issue
of whether there is enough evidence for an appellate judge to convict a
defendant, he says, should not turn on whether the state has "crossed its
T's and dotted its I's" by requesting a lesser-included offense.

Theodore A. Hardgrove III of San Angelo, Collier's attorney, declines
comment, saying he had not yet read the court's holding.

Some criminal-defense attorneys laud the ruling.

"It's a pleasant change," says Stanley Schneider, a Houston criminal-defense
lawyer. Though, like prosecutors, some defense attorneys "don't want the
lesser included because they don't want the jury to compromise," he says.

John Bradley, a Williamson County assistant district attorney, says, "Ever
since this issue has been coming up, the warning has been out there to ask
for the lesser included offense to protect yourself."

And if the defense asks for a lesser-included offense, it's always best for
the state to err on the side of caution by agreeing to it, he says.

"Give it, give it, give it," Bradley says. "If the jury convicts on the
lesser included, so be it. That's what juries are for. And if they don't,
then you've protected yourself on appeal."