CHAVEZ, JOSE JUAN v. the State of Texas

In the Court of Criminal
Appeals of Texas
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No. PD-0759-21
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JOSE JUAN CHAVEZ,
Appellant

v.

THE STATE OF TEXAS

═══════════════════════════════════════
On State’s Petition for Discretionary Review
From the Fourteenth Court of Appeals
Chambers County
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YEARY, J., filed a dissenting opinion.

In this case, the Court wrestles with the correct standard for
determining when a trial court should give a jury an instruction on a
lesser-included offense in response to a defendant’s request. The Court
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chooses to hold fast to its long-employed, court-created formula
requiring “evidence from which a rational jury could find the defendant
guilty of only the lesser offense” with the understanding that “the guilty-
only requirement is met [only when] there is affirmative evidence of a
factual dispute that raises the lesser offense and rebuts or negates other
evidence establishing the greater offense.” Majority at 6. Judge Keel’s
concurrence, for its part, urges further restriction of the circumstances
under which such an instruction is appropriate. But having been called
upon to consider the question, I am drawn to a different alternative—
one that would more closely adhere to the requirements of our statutory
law on the issue.
Appellant was charged with capital murder. The State argued
that he acted as a party to the conduct of another (Brandon Flores) in
the killing of two teenage gang members. Appellant requested lesser-
included-offense instructions for kidnapping and felony murder, and the
court of appeals concluded that he should have received them. Chavez v.
State, 651 S.W.3d 140, 146 (Tex. App.⸻Houston [14th] 2021). Today the
Court reverses the judgment of the court of appeals, holding that the
trial court did not err by refusing the lesser-included-offense
instructions requested by Appellant. I disagree. I would affirm that
judgment for the reasons set forth in this opinion. Because the Court
does not, I respectfully dissent.

I. HISTORY OF THE LESSER-INCLUDED-OFFENSE-INSTRUCTION TEST

The Court correctly lays out the two-prong test it has historically
used to determine when a trial court is required to instruct a jury on a
lesser-included offense upon a defendant’s request. Majority Opinion at
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6. But simply stating this test in its current form reveals only part of the
picture and risks imparting only a partial understanding of the test’s
meaning. The test has been through a long journey of development.
This Court announced the first iteration of the test in 1952. That
year, in Daywood v. State, the appellant challenged the trial court’s
refusal to instruct the jury on aggravated assault, a lesser-included
offense of the charged offense. Without citing any authority, this Court
responded with the following:
At this juncture, it will be noted that, merely because a
lesser offense is included within the proof of a greater
offense, a charge on the lesser is not required unless there
is testimony raising the issue that the appellant, if guilty
at all, is guilty only of a lesser offense included in the
greater offense charged.

Daywood v. State, 248 S.W.2d 479, 481, 157 Tex. Crim. 266, 269 (1952).
Following Daywood, this Court latched onto the “guilty only” test
when faced with the issue of whether a requested lesser-included-
offense instruction was required. See, e.g., Hale v. State, 164 Tex. Crim.
482, 486, 300 S.W.2d 75, 77 (1957) (repeating the Daywood “guilty only”
test for when a lesser-included-offense instruction is required); Torres v.
State, 493 S.W.2d 874, 875 (Tex. Crim. App. 1973) (same); McBrayer v.
State, 504 S.W.2d 445, 447 (Tex. Crim. App. 1974) (same); McCardell v.
State, 557 S.W.2d 289, 290 (Tex. Crim. App. 1977) (same). It is easy to
allow this stage in the test’s development—the eager acceptance and
fervent repetition of Daywood—to overshadow the questionable nature
of the test’s origin. Today’s “guilty only” test is a creation of this Court.
Its life support is not a statute or other law, but only the unsupported
words of this Court, blindly followed and repeated frequently enough to
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blur its dubious birth. The Legislature has never codified the test as it
was framed in Daywood or in the two-prong formulation familiar today.
Along with this eager judicial acceptance of the Court’s
pronouncement in Daywood, courts have over the years created slight
variations and clarifications to the original language. For example, in
Dovalina v. State, this Court quoted the Daywood “guilty only” test and
then rephrased the test to focus on “evidence” rather than just
“testimony”; “There is no evidence that he did not intend to kill the
officer. There is nothing which would show that he would be guilty of
only the lesser offense of aggravated assault.” Dovalina v. State, 564
S.W.2d 378, 383 (Tex. Crim. App. 1978) (emphasis added).
By the end of the era of Daywood and its progeny, the test had
matured to be explicitly organized as a two-prong test, the second step
of which focused on the “evidence” presented at trial. The test is
sometimes referred to as the “Royster-Aguilar test,” based on the names
of the cases which cemented the practice of separating the two steps of
the test. It went like this:
[I]n determining whether a charge on a lesser included
offense is required, a two step analysis is to be used. First,
the lesser included offense must be included within the
proof necessary to establish the offense charged. Secondly,
there must be some evidence in the record that if the
defendant is guilty, he is guilty of only the lesser offense.

Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981); Aguilar v.
State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).
The test reached a hurdle in its journey with the question of how
the Royster-Aguilar test related to the federal standard for when due
process requires a requested instruction on a lesser-included offense. In
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Cordova v. Lynaugh, the Fifth Circuit Court of Appeals addressed the
federal due process issue and provided the following test:
[A] lesser included offense instruction should be given ‘if
the evidence would permit a jury rationally to find [a
defendant] guilty of the lesser offense and acquit him of the
greater.’

Cordova v. Lynaugh, 838 F.2d 764, 767 (5th Cir. 1988) (quoting Hopper
v. Evans, 456 U.S. 605 (1982)). In a footnote, the Fifth Circuit observed
that “[t]he second prong [of Texas’s Royster-Aguilar test] that ‘there
must be some evidence in the record that if the defendant is guilty, he is
guilty of only the lesser offense,’ seems very similar to the federal
standard.” Id. at n.3. However, the Court made clear that it was not
addressing the Texas standard and was only concerned with whether
the Fifth Amendment Due Process Clause required the lesser-included-
offense instruction. Id.
This Court answered the lingering questions about the
relationship between the federal and Texas standards in Rousseau v.
State. There, the appellant called into question the propriety of the
Royster-Aguilar test in light of Cordova. Rousseau v. State, 855 S.W.2d
666, 672 (Tex. Crim. App. 1993). In its analysis, this Court pointed out
that the major difference between the two standards is the federal
standard’s reference to the rational findings of the jury. Id. The Court
then decided to refine the two-prong test to mirror the federal standard.
Accordingly, the Court provided the following as the more appropriate
language:
[F]irst, the lesser included offense must be included within
the proof necessary to establish the offense charged, and,
second, some evidence must exist in the record that would
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permit a jury rationally to find that if the defendant is
guilty, he is guilty only of the lesser offense.

Rousseau, 855 S.W.2d at 673.
In addition to refining the two-prong test to focus on the rational
findings of the jury in light of Cordova, this Court has provided various
supporting explanations that frequently follow any recitation of the two-
prong test. For example, one of the common rules accompanying the test
is that the second prong of the analysis requires a consideration of all of
the evidence admitted at trial, regardless of which party admitted the
evidence. See, e.g., Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim.
App. 2016) (“[T]he second step requires examining all the evidence
admitted at trial, not just the evidence presented by the defendant.”);
Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011) (“We consider
all of the evidence admitted at trial, not just the evidence presented by
the defendant.”); Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App.
1985) (“If evidence from any source raises the issue of a lesser included
offense, the charge must be given.”) (emphasis added).
Additionally, this Court has repeatedly emphasized that what the
second prong requires is that all the evidence admitted at trial would
allow a rational jury to find the defendant guilty of the lesser-included
offense rather than the charged offense. The Court has frequently
explained that the second prong requires that “[t]he evidence must
establish that the lesser-included offense is a valid, rational alternative
to the charged offense.” Bullock, 509 S.W.3d at 925; see also Rice v. State,
333 S.W.3d 140, 145 (Tex. Crim. App. 2011) (using the same language
to help explain the second prong); Hall v. State, 225 S.W.3d 524, 536
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(Tex. Crim. App. 2007) (same); Forest v. State, 989 S.W.2d 365, 367 (Tex.
Crim. App. 1999) (same).
Another elaboration on the meaning of the second prong of the
Royster-Aguilar test has been that, for a requested lesser-included-
offense instruction to be required, “[t]here must be some evidence
directly germane to the lesser-included offense for the finder of fact to
consider[.]” Wortham v. State, 412 S.W.3d 552, 557 (Tex. Crim. App.
2013) (quoting Goad 354 S.W.3d at 446). This evidence, the Court has
said, “cannot be mere speculation—it must consist of affirmative
evidence that both raises the lesser-included offense and rebuts or
negates an element of the greater offense.” Id. And notably, some
relevant cases that call for “affirmative evidence” provide further
elaboration. In Schweinle v. State, for example, the Court explained that
there are two ways in which evidence may raise a lesser-included
offense: The evidence “either affirmatively refutes or negates an element
establishing the greater offense, or the evidence on the issue is subject
to two different interpretations, and one of the interpretations negates
or rebuts an element of the greater.” Schweinle v. State, 915 S.W.2d 17,
19 (Tex. Crim. App. 1996).
II. THE COURT’S OPINION V. JUDGE KEEL’S OPINION
Judge Keel’s concurring opinion today would have the Court
elevate the first “affirmative evidence” alternative from Schweinle (and
like cases) to the level of sacrosanct, while apparently relegating the
“different interpretations” alternative (what it calls the “possible-
disbelief version of the guilty-only test”) to the jurisprudential
scrapheap. See Judge Keel’s Concurring Opinion at 4 (contrasting what
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it calls the “possible-disbelief version” of the “guilty-only” test with what
it calls the “factual-dispute version”); id. at 7 (advocating that the Court
“should . . . adhere to the factual-dispute version” of the guilty-only test
and “put the kibosh on” the possible-disbelief version). It would
essentially hold that the record must always contain what the cases call
“affirmative evidence” to refute the State’s evidence of the element that
elevates the lesser-included offense to the greater offense before a lesser-
included instruction will be required upon a party’s request. Id.
For its part, the majority today does not expressly reject the
“different interpretations” aspect of the Schweinle formulation of
Royster-Aguillar’s second prong. But it does declare that “mere disbelief
of evidence” establishing guilt for the greater offense is “insufficient” to
satisfy that prong. Id. at 9.
I believe it would be a mistake, as Judge Keel’s concurring opinion
would have the Court do, to make “affirmative evidence” the exclusive
standard for determining the second prong of the Royster-Aguilar test
for determining the availability of a lesser-included-offense instruction. 1

1 Throughout the development of the two-prong test, various judges
have expressed alternative ways to characterize the “guilty only” prong that do
not require a showing of affirmative evidence negating an element of the
greater offense. In Day v. State, 532 S.W.2d 302 (Tex. Crim. App. 1975), for
example, this Court held that it was reversible error for the trial court to refuse
to instruct the jury on the lesser-included offense of criminal trespass. The
element distinguishing the lesser offense of criminal trespass from the charged
offense of burglary was the intent to commit theft. In Judge Roberts’s
concurrence, he clarified that the reason he agreed with the majority’s holding
was that “[s]ince this [distinguishing] element was not conclusively
established, the issue of criminal trespass was raised.” Day, 532 S.W.2d at 308
(Roberts, J., concurring) (emphasis added). Judge Roberts, clearly, did not
think that the distinguishing element had to be rebutted with “affirmative
evidence” in order for the lesser-included offense to be raised. For Judge
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Indeed, as I explain in Part IV of this dissent, adopting that as our
exclusive standard would impose an impermissible burden of production
on the defendant to negate an element of the greater offense. Moreover,
unlike the majority today, I would not so readily reject “disbelief” as a
basis for determining whether a lesser-included instruction should be
submitted. So long as the record presents a rational basis for a jury to
“disbelieve” the State’s evidence of the element that elevates the offense
from the lesser to the greater, I believe it must be said that the lesser-
included-offense instruction must be submitted as “the law of the case”
under our statutory scheme.

III. WE SHOULD TAKE OUR LEAD FROM THE STATUTES

Over the course of years, as it too often seems to do, the Court has
vastly overcomplicated the question of when a trial court must authorize
a jury to convict the defendant, where appropriate, of a lesser-included
offense. To me, the right answer is a simple matter of statutory
construction. Article 36.14 of the Texas Code of Criminal Procedure
requires the trial court to instruct the jury on “the law applicable to the
case.” TEX. CODE CRIM. PROC. art. 36.14. And Article 37.08 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
the lesser included offense.” TEX. CODE CRIM. PROC. art. 37.08. So, when
the instruction is requested, and the evidence is such that the jury would
act rationally to reject the greater offense and find guilt instead for the

Roberts, it was enough that the distinguishing element was not conclusively
established, meaning that the jury could rationally choose to disbelieve that
element to a level of confidence beyond a reasonable doubt.
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lesser, an instruction on the lesser is required because it has, by the
party’s request and the state of the evidence, become “the law applicable
to the case.”
Of course, a jury should not convict of the lesser-included offense
when it has been persuaded to a level of confidence beyond a reasonable
doubt that the defendant committed the greater offense. So, to justify a
lesser-included-offense instruction, the record must be such that a jury
could rationally find that the defendant is not guilty of the greater
offense, but that he is guilty of the lesser-included offense⸻hence the
“guilty-only” requirement described in the cases.
But, in any case in which the jury could rationally conclude that
the State’s evidence has failed to prove the elevating element beyond a
reasonable doubt, upon request, a trial court must equip the jury to
resolve, pursuant to Article 37.08, whether the defendant is instead
guilty of a lesser-included offense. To impose a burden on the defendant
always to produce “affirmative evidence” before he may obtain such an
instruction, even when the State’s evidence with respect to the elevating
element is not (as Judge Roberts put it, see note 1, ante) “conclusive,” is
simply to fail to instruct the jury on “the law applicable to the case.”
Both the majority opinion and Judge Keel’s concurring opinion today
grievously err to conclude otherwise.

IV. “AFFIRMATIVE EVIDENCE”: AN INAPPROPRIATE BURDEN OF
PRODUCTION NOT STATUTORILY REQUIRED
Determining when a trial court is required to grant a requested
lesser-included-offense instruction must begin with consideration of
relevant statutes. Article 36.14 requires a trial court to “deliver to the
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jury . . . a written charge distinctly setting forth the law applicable to
the case[.]” TEX. CODE CRIM. PROC. art. 36.14. Article 37.08 of the Texas
Code of Criminal Procedure also provides that “[i]n 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. So, the question finally
ripens to this: When does a lesser-included offense amount to “the law
applicable to the case”?
Whether a trial court must submit an instruction on a lesser-
included offense as reflective of “the law applicable to the case[,]” the
Court has said, is a strategic matter that depends upon whether one of
the parties requests it. Tolbert v. State, 306 S.W.3d 776, 780–81 (Tex.
Crim. App. 2010). If the defendant asks for a lesser-included-offense
instruction, according to the Court, he must persuade the trial court that
it is “the law applicable to the case” by satisfying both prongs of the
Royster-Aguilar test. This includes a showing under the second prong
that the evidence is such that a rational jury could conclude that he is
“guilty only” of the lesser offense. But, in Grey v. State, 298 S.W.3d 644
(Tex. Crim. App. 2009), the Court decided that, when it is the State that
seeks the lesser-included-offense instruction, it need only satisfy the
first prong of the Royster-Aguilar test before an instruction on the lesser-
included offense becomes “the law applicable to the case.” Id. at 645
(holding that the State is “not bound” by the second prong of the Royster-
Aguilar test).
On a certain level, this seems to make good sense. Anytime the
State produces evidence sufficient to establish a prima facie case for the
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element that elevates the lesser-included offense to the level of the
greater offense, 2 it obviously hopes to persuade the jury of the verity of
that evidence beyond a reasonable doubt. But just because the State has
satisfied its burden of production with respect to that distinguishing
element does not necessarily mean that it can expect the jury inevitably
to find that it has also satisfied its burden of persuasion regarding that
element. See Grey, 298 S.W.3d at 650 (“[I]t is easy to see how a jury
might not be willing to find that a person’s hand is a deadly weapon,
despite all the evidence in favor of that proposition.”). A rational juror
might yet harbor a legitimate reasonable doubt with respect to the
elevating element, even in the face of evidence that would rationally
support that element beyond a reasonable doubt. See TEX. CODE CRIM.
PROC. art. 36.13 (“Unless otherwise provided in this Code, the jury is the
exclusive judge of the facts, but it is bound to receive the law from the
court and be governed thereby.”); and art. 38.04 (“The jury, in all cases,
is the exclusive judge of the facts proved, and of the weight to be given
to the testimony, except where it is provided by law that proof of any
particular fact is to be taken as either conclusive or presumptive proof
of the existence of another fact, or where the law directs that a certain
degree of weight is to be attached to a certain species of evidence.”).
Accordingly, the prosecutor who has some lingering doubt about
how a jury might assess the weight or credibility of his elevating
evidence may not want to risk an acquittal. So, the Court has said, in

2A prima facie case is “[a] party’s production of enough evidence to
allow the fact-trier to infer the fact at issue and rule in the party’s favor.”
BLACK’S LAW DICTIONARY 1441 (11th ed. 2019). In other words, it is the
production of enough evidence to survive a motion for instructed verdict.
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the interest of avoiding even the possibility of an “outright acquittal,”
the State is entitled to obtain a lesser-included-offense instruction. That
way, it gives the rational jury—the jury that may yet have a reasonable
doubt about the State’s evidence of the elevating element—the option of
acquitting of the greater offense and convicting of the lesser-included. 3
Grey, 298 S.W.3d at 650.
What Judge Keel’s concurring opinion would require today is,
considering what the Court has said in Grey, a stark anomaly. What it
would essentially hold is that, when it is the defendant who requests the
lesser-included-offense instruction, it can only become “the law
applicable to the case” if, once the State has satisfied its burden of
production on the elevating element, the defendant then satisfies a
counter burden of production of his own. The defendant must refute the
State’s evidence with some “affirmative evidence” of his own to show
that he is “guilty only” of the lesser-included offense. 4 I agree, of course,

3 The Court recently reiterated that, by statute, Texas is a so-called
“acquittal-first” (or, perhaps a “modified acquittal-first”) jurisdiction. Sandoval
v. State, ___ S.W.3d ___, No. AP-77,081, 2022 WL 17484313, at *28 (Tex. Crim.
App. Dec. 7, 2022). Accordingly, it is appropriate to instruct a jury that, when
a lesser-included-offense instruction is given, the jury must first make a
determination whether the defendant must be acquitted of the greater offense,
and only in the event that it does acquit of the greater offense may it proceed
to make a determination whether he may nevertheless be guilty of the lesser-
included offense. Id. at *26; see also Ex parte Covarrubias, ___, S.W.3d ___, No.
WR-82,509-03, 2023 WL 379593, at *9 (Tex. Crim. App. Jan. 25, 2023) (noting
that, in Sandoval, “we recently held that 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.”) (internal quotation marks omitted).

4 A burden of production does not necessarily mean that the party
bearing it actually has to produce evidence in support of his burden. Rather, it
simply means that if no evidence is produced from any source to satisfy the
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that whenever a defendant can produce such evidence, he is certainly
entitled to the instruction under the Royster-Aguilar test, just as some
of our cases have said. E.g., Schweinle, 915 S.W.2d at 19. But I disagree
with the concurring opinion that this should be the only way that a
lesser-included offense becomes “the law applicable to the case” upon a
defensive request. And, rightly, so does the Court today, at least
consistent with what it has said in Grey.
By foisting such a counter burden of production on the defendant
to produce “affirmative evidence” that he is guilty only of the lesser
offense, Judge Keel’s concurring opinion would essentially hold that, at
least when it is the defense seeking the instruction, the State’s evidence
with respect to the elevating element is conclusive⸻that it will
necessarily also satisfy the State’s ultimate burden of persuasion⸻unless
the defendant satisfies an independent burden of production to show
otherwise. The underlying presumption must be that⸻contrary to the
premise of Grey⸻a jury is not entitled simply to reject the State’s
evidence to establish the elevating element, even if it would be rational
for that jury to harbor a reasonable doubt about it. Such a holding stops
just short of constituting an instructed verdict in the State’s favor, at
least with respect to the elevating element. 5 That, of course, would be
patently unconstitutional. See Middleton v. McNeil, 541 U.S. 433, 437

burden, the party who bears the burden of production will lose. Krajcovic v.
State, 393 S.W.3d 282, 288 (Tex. Crim. App. 2013) (Price, J., concurring).

5The jury is not told that it must find the elevating element to be true
in assessing the defendant’s guilt or innocence for the charged offense, of
course. But it is effectively disallowed from registering any reasonable doubt
with respect to that element for purposes of determining whether it may
consider the defendant’s possible liability for the lesser-included offense.
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(2004) (“In a criminal trial, the State must prove every element of the
offense, and a jury instruction violates due process if it fails to give effect
to that requirement.”). And in any event, it is utterly irreconcilable with
the logic of Grey.
As for the majority’s expressed view today that “mere disbelief” of
the State’s evidence of the elevating element is insufficient to support a
lesser-included-offense instruction, Majority Opinion at 9, I must reject
that too. The question should simply be whether, from all the evidence
in the case⸻from any source⸻a rational jury could harbor a reasonable
doubt with respect to the element that elevates the offense from the
lesser-included offense to the greater-charged offense. This includes
asking whether a rational jury could simply find itself unpersuaded⸻at
least to a level of confidence beyond a reasonable doubt⸻by the State’s
evidence (if that is the only evidence there is) of that elevating element.
So long as the potential for doubt with respect to the elevating element
is not an irrational one based upon all the evidence that bears on the
question, the jury’s potential response may well provide a basis for the
trial court to conclude that the defendant could rationally be found
“guilty only” of the lesser-included offense. If so, then, upon request for
the instruction by either party, the lesser-included offense has become
“the law applicable to the case” for purposes of instructing the jury under
the dictates of Article 36.14.

V. APPLICATION OF LAW TO THE FACTS

I agree with the court of appeals that the jury in Appellant’s case
could rationally have rejected the State’s evidence that he was a party
to anything more than the kidnapping of the victims. In my view, the
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state of the evidence was such that a jury could rationally have rejected
the State’s evidence to show he was a party to capital murder, 6 and still
found him guilty of kidnapping or perhaps of felony murder with
kidnapping as the predicate felony offense.
It is true that, circumstantially, it seems unlikely that the group
would have kidnapped the victims in Baytown and transported them to
the remote property in Anahuac belonging to Appellant’s family⸻just to
release them unharmed. But the primary evidence that the entire group
shared the requisite intent to kill the victims came from the testimony
of the admitted actual shooter, Brandon Flores.
Flores testified that the “plan” had not originally been to kill the
victims, but when they reached the property, “[w]e decided we needed to
kill them because they were gangsters.” He explained that “we” entailed
the whole group, including Appellant. He specifically denied, however,
that Appellant had ever suggested before leaving Baytown that they
“needed” to kill the victims.

6 The indictment alleged three theories of capital murder: the murder
of each victim in the course of kidnapping, and murder of more than one person
during the same criminal transaction. TEX. PENAL CODE § 19.03(a)(2),
(a)(7)(A). The jury charge authorized the jury to return one conviction based
upon any one of these alternative theories. It also required the jury to find that
Appellant caused the deaths “intentionally”—not knowingly—with respect to
each of the three theories, even though Section 19.03(a)(7)(A) would authorize
conviction based upon knowingly causing the death of more than one person in
the same transaction. In addition, the jury charge authorized conviction under
the theory of parties embraced by Section 7.02(a)(2) of the Penal Code, but not
under the parties theory contained in Section 7.02(b). TEX. PENAL CODE §
7.02(a)(2), (b). Thus, the jury could find Appellant guilty as a party for
soliciting, encouraging, aiding, etc., another actor in committing the killing,
but not as a conspirator to commit the underlying kidnapping who “should
have anticipated” the killings.
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Flores purported at trial to be “not sure” who originally proposed
killing the victims once they arrived in Anahuac, but he admitted that
he was the one who, by himself, transported the victims to a remote
section of the property and shot them in the head. He then claimed that
it was Appellant who had told him to do so. This testimony, inconsistent
though it was in certain aspects, was legally sufficient to implicate
Appellant as a party to Flores’s capital murder of the victims. But the
jury had plenty of reason to discount at least aspects, if not much more,
of Flores’s testimony if it chose to, including his claim that Appellant
told him to kill the victims.
The jury was instructed that Flores was an accomplice witness
whose testimony was sufficiently suspect that it had to be corroborated
before it could support Appellant’s conviction. 7 Moreover, the jury
learned that, after the killings, Flores fled to Mexico. He was not
extradited until several years later, and only after assurances to the
Government of Mexico that Texas would not seek the death penalty
against him. Before Appellant’s trial, Flores had worked out a deal with
the State to testify against Appellant in exchange for the State’s
recommendation that he only serve two concurrent fifty-year sentences
for murdering the two victims.
The jury also heard evidence that Flores gave a statement to
police, after he was extradited, that was inconsistent with his trial

7 See TEX. CODE CRIM. PROC. art. 38.14 (“A conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the commission of the
offense.”).
CHAVEZ – 18

testimony in certain respects. Among those inconsistencies was that he
told police that it had been another member of the group⸻Richard
Gonzalez⸻who came up with the idea to kill the victims. See Chavez,
651 S.W.3d at 145 (“Flores testified inconsistently about who formulated
the plan to kill complainants.”). For this reason, and for the other
reasons I have previously described, the jury might have rationally
discounted or disbelieved, at least in part if not more, the testimony
provided by Flores—and, in particular, any inference to be derived
therefrom that Appellant shared the requisite intent to kill. The
evidence with respect to that elevating element was far from conclusive.

VI. CONCLUSION

On this state of the record, the jury might rationally have
convicted Appellant of kidnapping or felony murder rather than the
greater offense of capital murder. It might rationally have discounted
Flores’s claim that Appellant was involved in the decision to murder the
victims. Accordingly, it could rationally have rejected the inference that
he harbored an intent to kill the victims and convicted him of a lesser-
included offense. On this basis, I agree with the court of appeals that
Appellant was entitled to his requested lesser-included-offense
instructions. I would affirm its judgment. 8
I respectfully dissent.
FILED: April 19, 2023
PUBLISH

8 The court of appeals concluded that the error in failing to submit the
instructions was not harmless, Chavez, 651 S.W.3d at 146, and the State
Prosecuting Attorney does not challenge that holding in its petition for
discretionary review. The question of harm is therefore not before us.