STEVEN GREY v. THE STATE OF TEXAS (concurring)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. PD-0137-09
STEVEN GREY, Appellant
v. 
THE STATE OF TEXAS 
ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS 
HAYS COUNTY 
Hervey, J., filed a concurring opinion in which Meyers and Keasler, JJ., joined.
CONCURRING OPINION

I agree that we should overrule Arevalo v. State, 943 S.W.2d 887 (Tex.Cr.App. 1997). I also agree with the dissenters in Arevalo that a "trial court has no discretion to deny a request for an instruction [on a lesser-included offense] when [the Royster-Rousseau] test is met,[ (1)] but nothing precludes a trial court from submitting an instruction even when this test is not met, provided the elements of the lesser offense are included within the elements of the charged offense[ (2)] so as to give adequate notice." See Arevalo, 943 S.W.2d at 892-94 (Meyers, J., dissenting) (emphasis in original) and at 890-92 (McCormick, P.J., dissenting). With these comments, I join the Court's opinion.

Hervey, J.

Filed: November 18, 2009

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1. This rule for determining when a trial court must submit a lesser-included-offense instruction apparently is based on federal due process, at least in death-penalty cases. See Beck v. Alabama, 447 U.S. 625, 633-38 (1980); Keeble v. United States, 412 U.S. 205, 208, 212-13 (1973); Arevalo, 943 S.W.2d at 890-91 (McCormick, P.J., dissenting) and at 892 n.1 (Meyers, J., dissenting).

2. See Hall v. State, 225 S.W.3d 524 (Tex.Cr.App. 2007).