At page 465 Viewing defendant statements in context for lesser included offense analysis49 citing casesa statement made by a defendant 'cannot be plucked out of the record and examined in a vacuum' in a lesser-included offense analysis
- Jeffery Kyle Key v. State, No. 09-03-00503-CR (Tex. App.—Beaumont Dec. 8, 2004).published([A] statement made by a defendant 'cannot be plucked out of the record and examined in a vacuum' in a lesser included offense analysis.)
- Campbell III, Freddie L., No. PD-0081-03 (Tex. Crim. App. Oct. 27, 2004).published(a statement made by a defendant 'cannot be plucked out of the record and examined in a vacuum' in a lesser-included offense analysis)
- Mason Dale-Ray Munoz v. the State of Texas, No. 07-22-00047-CR (Tex. App.—Amarillo Feb. 21, 2023).unpublished Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Wade, Robert Eric Iii, No. PD-0157-20 (Tex. Crim. App. Apr. 6, 2022).published (noting that review of isolated statement must be viewed in light of the entire record of the factual theory of the defendant’s case)
- Braughton, Christopher Ernest, No. PD-0907-17 (Tex. Crim. App. Mar. 7, 2018).published App. March 18, 2015) (unpub. op.) ............................................................ 22, 28, 32, 33 Ortiz v. State, 144 S.W.3d 225 (Tex. App.—Houston [14th Dist.] 2004, pet ref’d.) (en banc).. ....................................…
- Richard Cardona v. State, No. 02-15-00036-CR (Tex. App.—Fort Worth Dec. 17, 2015).unpublishedApp. 2005); Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Dunn, Edrick, No. PD-1609-15 (Tex. Crim. App. Dec. 11, 2015).unpublished Art. 36.1 4 10 TEX.PEN.CODE § 29.03 6 PEN.CODE § 31 .03(f)(3)(A) 8 STATE CASES Bell v. State, 693 S.W. 2d 434,442 (Tex.Crim.App. 1985) 11 Cavazos v. State, 382 S.W. 3d 377 (Tex.Crim.App. 2012) 11 Hall v. State, 225 S.W. 3d 524,534-535 (Tex…
- Jeremy David Lummus v. State, No. 07-15-00120-CR (Tex. Sept. 21, 2015).publishedRamos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Ernesto LaFrienza v. State, No. 08-13-00121-CR (Tex. App.—El Paso Aug. 21, 2015).publishedThe “appellate court must examine the entire record instead of plucking certain evidence from the record and examining it in a vacuum.” Enriquez v. State, 21 S.W.3d 277, 278 (Tex.Crim.App. 2000)(citing Ramos v. State, 865 S.W.2d 463, 465 (…
- Remus Litoiu v. State, No. 13-13-00489-CR (Tex. App.—Corpus Christi July 30, 2015).unpublishedApp. 2000) (en banc) (citing Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
Show 36 more citing cases
- Kachel, Donnie Leroy, No. PD-1649-13 (Tex. Crim. App. Mar. 18, 2015).unpublishedP ROC. art. 37.09(1)–(4). 9 Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Justin Rhys Scepanski v. State, No. 13-11-00523-CR (Tex. App.—Corpus Christi Aug. 21, 2014).unpublishedApp. 2000) (en banc) (citing Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Paul David Gillette v. State, No. 07-12-00382-CR (Tex. App.—Amarillo Nov. 13, 2013).unpublishedRamos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Lidio Barrios v. State, 389 S.W.3d 382 (Tex. App.—Texarkana 2012).publishedIn applying the second prong, we must “examine the entire record instead of plucking certain evidence from the record and examining it in a vacuum.” Yzaguirre, 367 S.W.3d at 930 (citing Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.199…
- Gary Donell Sanders v. State, 387 S.W.3d 680 (Tex. App.—Texarkana 2012).publishedIn applying the second prong, we must “examine the entire record instead of plucking certain evidence from the record and examining it in a vacuum.” Id. (citing Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993)).
- Jay Paul Yzaguirre v. State, 367 S.W.3d 927 (Tex. App.—Texarkana 2012).publishedRamos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993).
- Hudson v. State, 366 S.W.3d 878 (Tex. App.—Texarkana 2012).published Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.App.1993).
- Dennis Charles Perry v. State, No. 06-11-00222-CR (Tex. App.—Texarkana May 11, 2012).published Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Dixon v. State, 358 S.W.3d 250 (Tex. App.—Houston [1st Dist.] 2011).published Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993).
- Anthony James Dixon v. State, No. 01-09-00340-CR (Tex. App.—Houston [1st Dist.] Mar. 10, 2011).published Ramos v. State , 865 S.W.2d 463, 465 (Tex. Crim.
- William Emanuel Glen Hartfield v. State, No. 02-07-00454-CR, 2008 WL 5401491 (Tex. App.—Fort Worth Dec. 23, 2008).unpublished (holding that in deciding whether there was any evidence entitling defendant to a lesser included offense jury instruction, statement allegedly raising issue must be viewed in context)
- Miller v. State, 196 S.W.3d 256 (Tex. App.—Fort Worth 2006).publishedRamos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993).
- Rodney James Miller v. State, No. 02-05-00133-CR (Tex. App.—Fort Worth May 4, 2006).unpublishedRamos v. State , 865 S.W.2d 463, 465 (Tex. Crim.
- Campbell v. State, 149 S.W.3d 149 (Tex. Crim. App. 2004).published (a statement made by a defendant ‘cannot be plucked out of the record and examined in a vacuum’ in a lesser-included offense analysis)
- Felix Rodriguez v. State, No. 07-02-00004-CR (Tex. App.—Amarillo Sept. 30, 2002).unpublished (holding that the evidence entitling the party to the lesser offense instruction must be “viewed in light of appellant’s factual theory of the case)
- Amis v. State, 87 S.W.3d 582 (Tex. App.—San Antonio 2002).publishedRamos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) (en banc).
- Deborah Rene Taylor v. State of Texas, 82 S.W.3d 134 (Tex. App.—San Antonio 2002).publishedRamos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) (en banc).
- Smetana v. State, 991 S.W.2d 42 (Tex. App.—Tyler 1999).publishedRamos v. State, 865 S.W.2d 463, 465 (Tex.Cr.App.1993).
- Jones v. State, 984 S.W.2d 254 (Tex. Crim. App. 1998).published The State claims the decision of the Court of Appeals' decision conflicts with this Court's decision in Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993).
- Caicedo v. State, 981 S.W.2d 817 (Tex. App.—Houston [1st Dist.] 1998).publishedTex. Penal Code Ann. §§ 22.011 , 22.021 (Vernon 1994 & Supp.1998); Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993).
- Jackson v. State, 968 S.W.2d 495 (Tex. App.—Texarkana 1998).publishedSee Tex. Penal Code Ann. §§ 22.011 , 22.021 (Vernon 1994 & Supp.1998); Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993); Nevels v. State, 954 S.W.2d 154, 161 (Tex.App.-Waco 1997, pet. ref’d); Fraga v. State, 940 S.W.2d 736, 737 (Tex…
- Means v. State, 955 S.W.2d 686 (Tex. App.—Amarillo 1998).published(holding that the evidence supposedly entitling the party to the lesser offense instruction must be “viewed in light of appellant’s factual theories] of the case)
- Fraga v. State, 940 S.W.2d 736 (Tex. App.—San Antonio 1997).publishedRamos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) (sexual assault); Rogers v. State, 687 S.W.2d 337, 344 (Tex.Crim.App.1985) (kid-naping).
- Gilbert Chapoy v. State, No. 03-93-00051-CR (Tex. App.—Austin June 22, 1994).unpublishedRamos v. State , 865 S.W.2d 463, 465 (Tex. Crim.
- Peter Actie v. State, No. 03-93-00076-CR (Tex. App.—Austin Apr. 27, 1994).unpublished“In Godsey [v. State , 719 S.W.2d 578 (Tex. Crim App. 1986)], we held that a statement made by a defendant `cannot be plucked out of the record and examined in a vacuum' in a lesser included offense analysis”
- Pritchett v. State, 874 S.W.2d 168 (Tex. App. 1994).published Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981) (opinion on reh’g).
- Nelson Garcia Delgado v. State, No. 13-08-00490-CR, 2011 WL 1326644 (Tex. App.—Corpus Christi Apr. 7, 2011).unpublishedSee Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Key v. State, 151 S.W.3d 619 (Tex. App.—Beaumont 2004).published([A] statement made by a defendant ‘cannot be plucked out of the record and examined in a vacuum’ in a lesser included offense analysis.)
- Enriquez v. State, 21 S.W.3d 277 (Tex. Crim. App. 2000).published See Ramos v. State, 865 S.W.2d 463, 465 (Tex.Cr.App.1993).
- Vicente H. Fernandez, A/K/A Carlos Garcia v. State, No. 03-97-00309-CR (Tex. App.—Austin Aug. 31, 1998).unpublishedSee Ramos v. State , 865 S.W.2d 463, 465 (Tex. Crim.
- Nevels v. State, 954 S.W.2d 154 (Tex. App.—Waco 1997).publishedSee Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993); see also Tex. Pen.Code Ann. §§ 22.011, 22.021 (Vernon 1994 & Supp.1997).
- Barcenes v. State, 940 S.W.2d 739 (Tex. App.—San Antonio 1997).publishedSee Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993).
- Schweinle v. State, 915 S.W.2d 17 (Tex. Crim. App. 1996).published See Ramos, 865 S.W.2d at 465 .
- Brownlow, Charles E., Jr., No. AP-77,068 (Tex. Crim. App. Feb. 12, 2020).unpublishedApp. 2000)); see also Ramos v. State, 865 S.W.2d 463, 465 (Tex. Crim.
- Kristopher Marsh v. State, No. 03-01-00598-CR (Tex. App.—Austin Jan. 24, 2003).unpublishedApp. 2000); see also Ramos v. State , 865 S.W.2d 463, 465 (Tex. Crim.
- Welch v. State, 993 S.W.2d 690 (Tex. App.—San Antonio 1999).published
At page 464 Sufficiency of testimony to raise lesser-included offense3 citing casesa single statement in the defendant’s testimony, viewed in the context of the entire record, was insufficient to raise a lesser-included offense
- Ex Parte Taylor, 36 S.W.3d 883 (Tex. Crim. App. 2001).published App.1994); Gill v. State, 873 S.W.2d 45 , 46 & 46 n. 2 (Tex.Crim.App.1994); Ramos v. State, 865 S.W.2d 463, 464 (Tex.Crim.App.1993); State v. Gonzalez, 855 S.W.2d 692, 693 (Tex. Crim.App.1993); Viveros v. State, 828 S.W.2d 2, 3 (Tex.Crim.A…
- Bignall v. State, 887 S.W.2d 21 (Tex. Crim. App. 1994).published Last year, in Ramos v. State, 865 S.W.2d 463, 464-65 (Tex.Cr.App.1993), we reaffirmed the rule set out in Godsey v. State, 719 S.W.2d 578, 584 (Tex.Cr.App.1986), that evidence should not be plucked out of the record and examined in a vacuu…
- Knott v. State, 513 S.W.3d 779 (Tex. App.—El Paso 2017).published(a single statement in the defendant’s testimony, viewed in the context of the entire record, was insufficient to raise a lesser-included offense)
v.
the STATE of Texas, Appellee
Lead Opinion
OPINION ON STATE’S PETITIONS FOR DISCRETIONARY REVIEW
McCORMICK, Presiding Judge.A jury convicted appellant of aggravated sexual assault and assessed punishment at confinement for fifty years. See Y.T.C.A., Penal Code, Section 22.021. The Fort Worth Court of Appeals reversed the conviction, holding the trial court erred in failing to instruct the jury on the lesser included offense of sexual assault. Ramos v. State, 821 S.W.2d 418 (Tex.App.—Fort Worth 1991); see V.T.C.A., Penal Code, Section 22.011. We granted petitions for discretionary review filed by the Tarrant County District Attorney and the State Prosecuting Attorney to determine whether the Court of Appeals correctly held that a single statement from appellant’s testimony, examined in isolation, raised the issue of the lesser included offense. We will reverse.
The victim testified appellant grabbed her and dragged her to several locations where he sexually assaulted her under threats of stabbing and death. She did not resist. During direct examination by his lawyer, appellant denied threatening the victim and claimed she consented to the sexual relations he had with her. When asked by his lawyer if the victim resisted his sexual advances, appellant testified, “[Mjost like any other girl, you know, kind of act like they don’t want it, but, you know, then they do, so — .” The Court of Appeals held this testimony, together with appellant’s denial of threatening the victim, raised the lesser included offense of sexual assault. Ramos, 821 S.W.2d at 420; see Section 22.011. The Court of Appeals reasoned appellant’s testimony that the victim resisted his sexual advances “like most other girls” could be construed by a jury to mean the victim resisted his sexual advances thereby constituting an admission the victim did not consent instead of a denial appellant committed the offense. See id.; see also Godsey v. State, 719 S.W.2d 578, 584 (Tex.Cr.App.1986).
[*465] In determining whether the evidence raises a lesser included offense, a two-step analysis is required. First, the lesser offense must be included within the proof necessary to establish the offense charged; second, there must be some evidence from any source that raises a fact issue on whether the defendant is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (opinion on reh’g) (Tex.Cr.App.1981). The first condition of the two-step analysis was clearly met. To prove aggravated sexual assault, the State must prove sexual assault. See V.T.C.A., Penal Code, Sections 22.011 and 22.021. However, the Court of Appeals’ holding that the second condition was met is contrary to our holding in Godsey, 719 S.W.2d at 584. In Godsey we held that a statement made by a defendant “cannot be plucked out of the record and examined in a vacuum” in a lesser included offense analysis. Id.
Here, the victim testified appellant sexually assaulted her under threats of severe violence. She also testified she did not resist appellant’s sexual advances because she was afraid, and her only hope in escaping further harm was to do what appellant demanded. The victim’s testimony raised no fact issues on the lesser included offense of sexual assault.
Appellant’s statement on direct that the victim resisted “like most other girls” must be viewed in light of appellant’s factual theory of the ease. See Godsey, 719 S.W.2d at 584. Examining the entire record, it is clear appellant’s factual theory was the victim willingly had sex with him under no threats of stabbing or death. During cross-examination, the prosecutor asked appellant the same question appellant’s lawyer asked on direct concerning whether the victim resisted appellant’s sexual advances. Appellant answered, “I wouldn’t say resisting.” Appellant later testified the victim “acted like she wanted it.” Viewed in the context of the entire record, appellant’s statement that the victim resisted “like most girls” failed to raise a fact issue on whether she resisted. See Godsey, 719 S.W.2d at 584. Therefore, appellant’s testimony raised no fact issues on the lesser included offense of sexual assault, and we hold he was not entitled to an instruction on that issue. We sustain the District Attorney’s and the State Prosecuting Attorney’s grounds for review.
We reverse the judgment of the Court of Appeals and remand the cause there to consider appellant’s remaining points of error.
OVERSTREET, J., concurs in the result. CLINTON, J.,would affirm the judgment of the Court of Appeals under Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1993), which is equally applicable to the State.
Dissent
dissents with note:
Believing the Court of Appeals properly reviewed the evidence and applied the appropriate law, I dissent. Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992). The victim’s testimony that she never saw a knife or any other weapon, together with appellant’s testimony that he did not threaten the victim, amounts to some evidence that would permit a jury rationally to find that if appellant is guilty, he is guilty only of the lesser included offense of sexual assault. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Cr.App.1993).
Concurrence
concurring.
While I continue to believe that Arcila v. State, 834 S.W.2d 357 (Tex.Cr.App.1992), was wrongly decided, that decision is final and the doctrine of stare decisis demands that it be followed. Delrio v. State, 840 S.W.2d 443, 449 (Tex.Cr.App.1992) (Bail’d, J. dissenting). To that extent, Judge Clinton is correct in believing Arcila is equally applicable to the State and the defense.
However, the instant case is not controlled by Arcila. Rather this case is controlled by Tex.R.App.P. 200(e)(3) which provides for our review where a court of appeals has decided a question of law in conflict with an applicable decision of this Court. In its opinion, the Court of Appeals failed to recognize, acknowledge or in any manner distinguish our opinion in Godsey v. State, 719 S.W.2d 578 (Tex.Cr.App.1986). On direct appeal, the State relied upon Godsey, albeit weakly. State’s brief pg. 9. As the majority correctly notes, the question of whether appellant’s[*466] testimony was sufficient to require an instruction on the lesser included offense of sexual assault is controlled by Godsey. Consequently, the Court of Appeals opinion necessarily conflicts with that opinion. Therefore, this was an appropriate case for our review. See, Rule 200(c)(3).
With these comments, I join the majority opinion.