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

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).

Grey--2 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 Publish

2

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