‘This is the Way’ lesser-included error must be preserved

By Britt Houston Lindsey
Chief Appellate Prosecutor, Criminal District Attorney’s Office in Taylor County

The single best thing that came out of the dumpster fire that was 2020 is The Mandalorian, a fantastic, Star Wars-branded mash-up of Sergio Leone westerns, knight legends, and Ronin tales of feudal Japan.[1] The titular character, Din Djarin the Mandalorian, adheres to both a moral compass that leads him to take in an adorable child (known popularly, if incorrectly, as Baby Yoda) and the strict warrior’s code of his people, as reflected in their creed, “This is the Way.” We cheer for the Mandalorian because he not only does the right thing, but because he does it the right way, which is a goal we all should strive for.

            To do the right thing the right way, trial and appellate prosecutors alike must know when defendants are entitled to a requested lesser-included instruction, when they are not, and what defendants must do to preserve error on that point. The Court of Criminal Appeals provided some guidance in that regard in Williams v. State,[2] handed down May 26, 2021.

Background

The underlying case involved a charge of continuous trafficking of a minor.[3] Much like the continuous sexual abuse of a child statute you’re no doubt familiar with, the Texas Penal Code criminalizes the act of engaging, two or more times over a period of 30 days or more, in conduct that constitutes an offense under the trafficking statute, §20A.02. The defendant, Issac Williams, met a 15-year-old girl, B.F., on social media and messaged her for several months before meeting her in person after she stated that her mother “kicked her out.” Williams told the girl (age 16 by then) that he would take care of her, showed her the adult escort advertisements on Backpage, and explained the process of placing ads and finding customers. Williams introduced her to 20-year-old “Kandy,” took them both to the store to buy “cute underwear,” and took photos of them for ads.

            At trial, over 3,000 pages of Backpage records were introduced as an exhibit, showing B.F. as “Amber,” alongside Kandy; some of these pages advertised a “two-girl special.” The ads ran from December 9, 2013, to August 14, 2014. Most of the ads were invoiced to Kandy, but some that ran from July 20 to August 5 were invoiced to the defendant. B.F. testified that Williams would drive her and Kandy to different cities to meet clients while he either waited in his Cadillac or in a different hotel room, and that she was never to tell clients that she had a pimp. She said that they worked every day except Sundays, when they would go to church to see Williams’s father preach.

            Department of Public Safety Special Agent Shawn Hallett and Sergeant John Elizarde with the Texas Attorney General’s Child Exploitation Unit found the ads for Amber and Kandy while looking for juvenile victims of human trafficking. They were able to determine their real identities from Facebook and also learned that B.F. was a minor and a runaway. They arranged a “two-girl special” at a hotel in Killeen, where they conducted a sting operation that took Kandy into custody.

            Hallett, Elizarde, and Sergeant Stormye Jackson found B.F. in the hotel room; B.F. was “surprised and overjoyed” that they had found her. The girl related the details of the trafficking scheme; multiple cellphones, a hotel receipt in Kandy’s name, condoms, and personal lubricant were found in the room. B.F. “melted down” upon seeing Williams’s Cadillac outside, and a search of that vehicle and his person revealed gift cards used for hotel rooms and Backpage ads. Cell phones were also found in the car; they had a history of use on Backpage, texts and calls to the phones found in the hotel room, and hotel bookings. There were also boxes of condoms of the same type found in the hotel room.

            Williams’s theory of the case at trial, developed through cross-examination and testimony, was that Kandy and B.F. acted alone and that he had no knowledge or suspicions that they were prostituting themselves. He testified that he had committed no crime, was only roommates with Kandy, never trafficked either of them, and that he had had blocked B.F. on Facebook because she was coming on to him. The gift cards in his wallet had been given to him by Kandy to hold onto, and the two of them had switched phones the day before. He stopped appearing for court after his jury setting because he felt sad and betrayed and because he was a nice person who didn’t do anything wrong to anybody.[4]

            At the close of evidence, Williams’s trial counsel requested multiple lesser-included offense instructions on the record:

The jury found Williams guilty of continuous trafficking as charged and sentenced him to 50 years’ confinement.

The court of appeals

First, let’s recall a few important things to know about the law and jury charge error. Jury charges are one of the few areas in the law where failure to object does not necessarily waive error.[5] Rather, it affects the harm standard that the reviewing court uses to evaluate the error. Under Almanza v. State,[6] if there is error in the charge but the defendant did not object, reversal is not required unless the defendant suffered “egregious harm.” If the defendant preserved error by objecting to the charge, the standard is only “some harm.” Without getting too deep in the weeds, essentially “some harm” is a much lower standard and a good reason to pay very close attention to defense objections to the charge.

            There’s an important exception to that rule, however: defensive instructions, such as an instruction on self-defense. Under Posey v. State,[7] the judge has no duty to sua sponte give the jury an unrequested defensive instruction; a defendant must request one or he has procedurally defaulted any complaint on appeal. This makes sense, because the decision of whether to request a defensive instruction depends on the defendant’s trial strategy. If a defendant were allowed to both intentionally forgo a defensive instruction at trial and complain for the first time on appeal that he wasn’t given one, he could “sandbag” the court by not requesting one and potentially get another bite at the apple on appeal for something that he strategically chose to waive.

            Armored[8] with that knowledge, let’s return to the appeal. Williams appealed to the Fourth Court of Appeals in San Antonio, arguing that he had preserved error by objecting to the exclusion of the lesser-included charge and that the “some harm” standard accordingly applied. The Fourth Court agreed that Williams had properly requested the lesser-included instruction and that because evidence existed to support the charge, the court erred by not including the instruction. The Court noted that the jury could rely on evidence showing that:

            1) Kandy appeared on almost all the ads;

            2) Williams’s “roommate” was identified as Kandy; and

            3) Kandy’s phone (found in the hotel room) contained text messages between her and Agent Hallett.

            The Fourth Court further found that the jury “could also believe Williams’s testimony that the reason his phone, which police found in his car, had incriminating evidence on it was because he had ‘merged’ his phone with Kandy’s phone only a few days before the arrest.” The Fourth Court also pointed out the Backpage ads in Williams’s name could allow a rational jury to conclude only that he only compelled B.F. to commit prostitution from July 20, 2014, to August 5, 2014, and that one of the text messages from Kandy to B.F. stated, “Make sure Issac doesn’t see you,” which defense counsel argued was evidence that Kandy and B.F. were doing something that they didn’t want Williams to know about. Because the jury was faced with the choice of acquitting the defendant entirely or convicting him of the greater offense that it may have had a reasonable doubt that he committed, the Fourth Court further found that Williams had met the “some harm” standard and remanded back to the trial court for a new trial.

As the CCA saw it

In the State’s petition for discretionary review,[9] Bexar County Assistant District Attorney Nathan Morey raised the very good point that the Court of Criminal Appeals had discussed in Tolbert v. State,[10] that the trial court does not have a duty to sua sponte instruct the jury on lesser-included charges. Rather, they are treated like defensive instructions under Posey: matters of trial strategy that the defendant must request or waive. One of the purposes of requiring the affirmative request under Posey is to prevent “sandbagging” the trial court judge. The State argued in its first ground that the defendant failed to preserve any error because he had not sufficiently explained to the trial court why he was entitled to a lesser-included, quoting the late Judge Cochran’s concurrence in Grey v. State that “the defendant must point to specific evidence in the record that negates the greater offense and raises the lesser-included offense.”[11] Williams argued that he did point out the specific evidence on appeal, and that nothing required him to do so in the trial court.

            The Court of Criminal Appeals agreed with the State on the error preservation issue. Judge Newell wrote the majority opinion and was joined by Presiding Judge Keller and Judges Hervey, Richardson, Keel, and Slaughter. Judge Newell pointed out that a defendant is entitled to a particular lesser-included instruction when it is shown to be a “valid rational alternative” to the greater crimes, e.g. when he details on the record the specific basis for rejecting the greater offense but supporting the lesser. Here, the defendant did not point to any affirmative evidence that would support the submission of any of the lesser-included offense instructions, and, specific to the charge of trafficking, did not at trial point to facts like those on which the Fourth Court relied. Judge Newell noted that the Court has ruled that general or insufficiently specific objections do not preserve error for appeal, and that a defendant who files or dictates a “laundry list” of objections to the charge must also specify the legal or factual reasons why he believes he is entitled to the special instructions.

            Judge Newell was careful to point out that the result may have been different if the evidence supporting the lesser-included instruction were obvious (or “manifest”) to the trial court, but here it was not—Williams’s defensive theory was that he did not commit any crime. As Judge Newell put it, “Because the evidence supporting trafficking as a rational alternative to the charged offense was not obvious, and the appellant failed to point to it, the trial court, reversed on appeal, was classically ‘sand-bagged.’”

            Like in Posey, the rule Judge Newell establishes here makes sense because the same rationale applies. As Posey puts it, requiring an affirmative request for a defensive instruction “prevents the party from ‘sandbagging’ the trial judge by failing to apprise him, and the opposing party, of what defensive jury instructions the party wants and why he is entitled to them.” If the rule were otherwise, a defendant could direct his theory of the case toward an outright acquittal, ask for a laundry list of lesser-included instructions, shrug his shoulders when the trial court asks why he was entitled to a lesser-included instruction, then gain a reversal by carefully combing through the appellate record at his leisure to find evidence supporting any one of the instructions after the fact.

            Judge Yeary dissented, joined by Judges Walker and McClure. Judge Yeary stated that neither the majority nor the parties cite to any caselaw stating that it is the defendant’s responsibility to inform the court of the specific evidence that showed him to be guilty only of the lesser-included offense, and that in his view, Texas Rule of Appellate Procedure 33.1(a)(1)(A) did not necessarily mandate that the defendant do so. Judge Yeary observed that some other jurisdictions did in fact make that demand of the trial court, noting that New Jersey had long held that “when a defendant requests a lesser-included-offense charge, the trial court is obligated, in view of the defendant’s interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied.” Judge Yeary also felt that defense counsel’s statement, “I believe there was in substance,” to be sufficient to apprise the court that there was evidence to support the lesser-included instruction, and he expressed his belief that it was incumbent on the trial court to make further inquiry if further clarification was needed.

The takeaway

So what’s this mean to me, the hard-working, front-line prosecutor? I’m so glad you asked. There are lessons here for defense counsel, judges, and prosecutors alike.

            First and foremost for our purposes is that the State has to listen very carefully to any requests or objections the defendant has regarding the jury charge and objectively assess whether he does or does not have a right to them.[12] Here, there arguably was evidence that could have supported the lesser-included charge, but Williams did not articulate that evidence when the charge was discussed on the record. It also was not obvious to the trial court, because the theory of the case that the defendant pursued throughout the trial was that he committed no crime, not a lesser crime. Had the defendant pointed to a scintilla of evidence from any source showing that if he were guilty that it was only of the lesser-included offense during the charge conference, or had the defense made obvious that the theory of the case was that the defendant was guilty only of the lesser-included and emphasized that evidence in trial, the outcome here might have been different. If the evidence that supports a requested lesser-included offense isn’t clear to prosecutors at the charge conference, ask to discuss it on the record. If the evidence supporting the lesser-included is clear, don’t fight it.

            Prosecutors must also be aware of what constitutes evidence that will support a lesser-included instruction and what will not, which is trickier than it seems. Although only a scintilla of evidence is needed, the Court of Criminal Appeals has stated repeatedly that there must be evidence “directly germane” to the lesser-included offense for the jury to consider to make it a “valid rational alternative to the greater offense.” It is not enough that the jury may simply disbelieve crucial evidence pertaining to the greater offense.[13] If the offense is continuous sexual abuse of a child and the defendant’s only argument at the charge conference is that the jury may not believe the victim’s testimony about the number of assaults or the time period during which they happened, that standing alone won’t justify a lesser-included instruction.[14] If the defendant actually adduces germane evidence that the time period was less than 30 days, or the defendant himself actually testifies that the sexual abuse happened on only one occasion, the lesser-included instruction is warranted. Analyzing which arguments do and don’t support a requested lesser-included instruction in the charge isn’t easy, but … This is the Way. I have spoken!

Endnotes

[1]  See e.g., Lone Wolf and Cub, Kazuo Koike & Goseki Kojima, Futabasha (1970) (Japanese manga series depicting wandering rōnin protecting young child).

[2]  No. PD-0477-19, 2021 Tex. Crim. App. LEXIS 558, 2021 WL 2127116, —- S.W.3d —- (Tex. Crim. App. 2021).

[3]   See Tex. Penal Code §20A.03.

[4]  Williams was arrested in the Dominican Republic and extradited back to the United States after being located there through an investigation by the U.S. Marshals Service and the Texas Department of Public Safety. “Man accused of using Backpage.com to prostitute Texas girl captured in Dominican Republic,” https://foxsanantonio.com/news/local/man-accused-of-using-backpagecom-to-prostitute-texas-girl-extradited- to-bexar-county (retrieved June 2, 2021).

[5]  This is because “[t]he trial judge has the duty to instruct the jury on the law applicable to the case even if defense counsel fails to object to inclusions or exclusions in the charge.” See Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013).

[6]  686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh’g).

[7]  966 S.W.2d 57 (Tex. Crim. App. 1998).

[8]  Beskar, naturally.

[9]  Nueces County Assistant District Attorney Douglas K. Norman also filed a brief as amicus curiae.

[10]   306 S.W.3d 776, 780 (Tex. Crim. App. 2010).

[11]   298 S.W.3d 644, 653 (Tex. Crim. App. 2009) (Cochran, J., concurring).

[12]  It should be mentioned at least in passing that before beginning the analysis of whether the evidence supports a lesser-included instruction, the parties should look at the first prong: whether the lesser offense being offered actually is a lesser-included of the greater offense. Here there was no dispute, as it was agreed by all parties that trafficking was clearly a lesser-included under the continuous trafficking statute.

[13]  Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997) cert. denied, 523 U.S. 1079 (1998); Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994); Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011).

[14]  See e.g., Martinez v. State, No. 10-14-00035-CR, 2014 Tex. App. LEXIS 11230, at *8 (Tex. App.—Waco Oct. 9, 2014, pet. ref’d) (mem. op.); McGinty v. State, No. 08-13-00217-CR, 2015 Tex. App. LEXIS 2546, at *11 (Tex. App.—El Paso Mar. 18, 2015, pet. ref’d) (mem. op.).