This issue has just come up in one of my cases and I was wondering what you folks think about it.

As I understand the law now, a defendant is estopped from challenging the legal sufficiency of his conviction if he requests a lesser included offense and is convicted of that lesser included offense. (Of course I never rely solely on an estoppel argument and I always include a legal sufficiency analysis even when I raise an estoppel claim.) Is this doctrine experiencing a wane in vitality or do you think it will continue on with increased vigor? Is it reasonable? Should it be discarded? I'm interested in your thoughts.

As good advocates (adjective "good" is borrowed from John B. in the "confession dumped" thread) we should always raise every argument that can preserve our convictions and sentences. With the current make-up of the CCA and its strong position on waiver, estoppel, and harmless error, I don't believe we need fear the demise of estoppel where a LIO is requested any time soon. Long may it live.

[This message was edited by John Stride on 11-02-05 at .]

[This message was edited by John Stride on 11-02-05 at .]

thanks. i certainly will pursue it. however, i'm facing an attorney who is challenging the validity of this doctrine and has gotten some play in the court of appeal where the court reluctantly followed it, but was mad about having to do so.

They may not like it but what is the basis for effectively challenging it?

what else? the argument is vaguely like the cruel trilemma argument in Leday where they say that just because evidence raises a lesser-included doesn't mean that the evidence of it is legally sufficient and that the defendant should be bound to such a concession by his attorney.

Of course, just because the evidence raises a LIO doesn't mean it has to be given. Astute attorneys often go for the all-or-nothing approach for that very reason. On occasion, it even pays off. Defendants are frequently put to their choices, e.g., whether to plead, whether to testify, and whether to object or cross-examine instead, but such choices are inevitable in most proceedings. Also the fact that a defendant has to make a choice, even a hard one, doesn't mean he faces any kind of cruel trilemma. It is just a matter of strategy.

Isn't a significant difference between the defendant admitting guilt at punishment and electing to get a LIO at g/i that the defendant admitting guilt after his conviction can't change the verdict and is seeking only to ameliorate his sentence but the defendant choosing an LIO is always free to continue his claim of not guilty rather than accept the possibility of an intermediate degree of conviction? Does this make any sense?

[This message was edited by John Stride on 11-02-05 at .]

i think that's part of the argument though. as i understand the argument by asking for the LIO he's not saying he's guilty of the lesser, only that he's not guilty of the greater and he agrees there's some evidence that could let the jury decide whether he's guilty of the lesser. i guess it turns on what the phrase "some evidence that could permit the jury to find him guilty of the lesser offense" means. if it only means that the evidence has to raise an issue, then he's not admitting guilt by asking for the lesser, otherwise he'd be pleading to the lesser. if it means that it's enough, if believed by the jury, to convict him, then he has waived a claim of sufficiency.

Logically it should work like this in my opinion. Greater offense has elements A, B, C, and D. D includes E (lesser culpable mental state). Defense claims no evidence of D, but some evidence of E, and does not challenge A, B, or C at trial. Jury finds A, B, C, and E and convicts. If defendant upon appeal challenges proof of any of those elements, his position is contrary to that taken in the trial court. He invited the jury to do what it did. What is there to dislike about holding him to that choice? It is not enough to just say this reasoning is "anomalous" as Justice Taft does. It is immaterial that the defendant did not admit the proof was sufficient beyond a reasonable doubt. He is now saying there is no evidence to support the jury's determination of the weight of the evidence. If that were true, then there would likewise have been no evidence to support submission of the lesser offense. Estoppel seems to fit this situation pretty well.

[This message was edited by Martin Peterson on 11-02-05 at .]

At the most basic level, the law does not require a LIO be given. It is something that is requested by one party or the other or both and then given only if it meets the criteria for submission. It would be quite another thing if, regardless of request, a LIO had to be given. Isn't there a link that can be made to Marin and its progeny, absolute rights, waivable rights, etc?

not to belabor the obvious, but is a lesser-included law that the judge is required to charge on once there's some evidence to acquit of the greater and convict on the lesser, or is it a special charge that must be requested like a defense?

My understanding is that a trial court can give an LIO despite the parties' requests but it is under no obligation to do so sua sponte. I would vigorously argue an LIO is a defensive issue. See Thomas, 701 sw2d 653; Posey, 966 sw2d 57.

I pursued the etoppel claim, the court agreed. However, as I also argued in the alternative that the evidence was sufficient, the court also did an analysis of the sufficiency of the evidence. See Rhynes v. State, No. 11-03-00391-CR, November 3, 2005.

this just came out:

McKinney v. State

I'm not really shocked or offended by the holding, but something in the language of the opinion really rubs me the wrong way.