second step analysis in Texas

2015“The second step in the analysis should ask whether there is evidence that supports giving the instruction to the jury.” Id. at 536 . “[A]nything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.” Id. “[T]he evidence must establish the lesser-included offense as ‘a valid, rational alternative to the charged offense.’ “ Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.

2015“The second step in the analysis should ask whether there is evidence that supports giving the instruction to the jury.” Id. at 536 . “[A]nything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.” Id. “[T]he evidence must establish the lesser-included offense as ‘a valid, rational alternative to the charged offense.’ “ Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim.

2015The second prong requires an examination of the record to determine if the lesser-included offense, was raised by the evidence, whether produced by the State or the defendant, and whether it be strong, weak, unimpeached, or contradicted, See Ford v. State, 38 S.W.3d 836, 842 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). “[I]t is not enough that .the jury may disbelieve crucial evidence pertaining to the greater offense; there must, be some evidence directly germane to a lesser included offense for the .factfinder to consider before an instruction on a lesser included offense is warranted.”

2013We now turn to the second step in the analysis: whether the evidence presented at trial supports the lesser-included offense instruction.31 The purpose of this second step is to ensure that the lesser-included offense is a “valid, rational alternative” to the charged offense.32 “[T]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is 30 Hall, 225 S.W.3d at 536 (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.

2008Mathis, 67 S.W.3d at 925 ; Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App.2000).

2008Mathis, 67 S.W.3d at 925 ; Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim.

2023“If there is evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense.” Id. (citing Moore, 969 S.W.2d at 8 ). 9 We conclude that Males cannot meet the second step of the analysis because “[a] murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide.” Id. (alterati

2023“If there is evidence from any source that negates or refutes the element establishing the greater offense, or if the evidence is so weak that it is subject to more than one reasonable inference regarding the aggravating element, the jury should be charged on the lesser included offense.” Id. (citing Moore, 969 S.W.2d at 8 ). 9 We conclude that Males cannot meet the second step of the analysis because “[a] murder defendant is not entitled to an instruction on the lesser included offense of aggravated assault when the evidence showed him, at the least, to be guilty of a homicide.” Id. (alterati

2019“The second step in the analysis asks whether there is evidence in the record that supports giving the instruction to the jury.” Bullock, 509 S.W.3d at 924 (citing Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim.

2018Second Step of Royster/Rousseau Test In 2011, this Court described the second step of the test for the inclusion of a lesser-included offense, stating, “The second step of the lesser-included-offense analysis is to determine if there is some evidence from which a rational trier of fact could acquit the defendant of the greater offense while convicting him of the lesser- included offense.” Sweed v. State, 351 S.W.3d 63, 67 (Tex. Crim.

2021Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim.

2009See Hall, 225 S.W.3d at 536 ; Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Cr.App. 1993).19 The 18 See Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex.Cr.App. 2003) (expressly overruling “surplusage law” and an exception to this law “to bring our state courts’ sufficiency of the evidence review” in line with federal constitutional requirements); see generally Fuller v. State, 73 S.W.3d 250 (Tex.Cr.App. 2002); Curry v. State, 30 S.W.3d 394 (Tex.Cr.App. 2000); Malik v. State, 953 S.W.2d 234 (Tex.Cr.App. 1997). 19 Relying on Rousseau, this Court in Hall, 225 S.W.3d at 536 , reaffirmed that the “evid

2024There are two ways to demonstrate that Honeycutt could be guilty of only the lesser- included offense and not the offense of aggravated assault: (1) evidence was “raised that refutes or negates other evidence establishing the greater offense” of aggravated assault and (2) “the evidence presented regarding [Honeycutt’s] awareness of the risk may be subject to . . . different interpretations.” Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim.

2024In the second step of the analysis, the evidence relevant to the lesser-included offense “must rise to a level that a rational jury could find that if [defendant] is guilty, he is guilty only of the lesser-included offense[]” and that “[m]eeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense.” Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim.

2009Loserth, 963 S.W.2d at 772 .

2006Loserth v. State , 963 S.W.2d 770, 772 (Tex. Crim.

2019The Legislature’s use of “prima facie case” in the second step of the inquiry implies a minimal factual burden: “[a] prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.” Robinson, 409 S.W.3d at 688 ; Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

2019The Legislature’s use of “prima facie case” in the second step of the inquiry implies a minimal factual burden: “[a] prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.” Robinson, 409 S.W.3d at 688 ; Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

2015Rousseau, 855 S.W.2d at 673 ; Nevarez v. State, 270 S.W.3d 691, 693 (Tex. App.— Amarillo 2008, no pet.).

2013Rousseau, 855 S.W.2d at 673 ; Nevarez v. State, 270 S.W.3d 691, 693 (Tex.App.— Amarillo 2008, no pet.).

2013See Simmons, 390 U.S. at 384 , 88 S. Ct. at 971 ; Barley, 906 S.W.2d at 33 .

2013See Simmons, 390 U.S. at 384 , 88 S. Ct. at 971 ; Barley, 906 S.W.2d at 33 .

2008Ex parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim.

2008Ex parte Ervin , 991 S.W.2d 804, 814 (Tex. Crim.

2019“The legislature’s use of ‘prima facie case’ in the second step of the inquiry implies a minimal factual burden: ‘[a] prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.’” Schimmel, 438 S.W.3d at 855 (quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.— Houston [1st Dist.] 2013, pet. denied)).

2019"The legislature's use of 'prima facie case' in the second step of the inquiry implies a minimal factual burden: '[a] prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.' " Schimmel , 438 S.W.3d at 855 (quoting KTRK Television, Inc. v. Robinson , 409 S.W.3d 682 , 688 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) ).

2024Palmer, 471 S.W.3d at 570 (citation omitted).

2022Palmer, 471 S.W.3d at 570 (citation omitted).

2019“The legislature’s use of ‘prima facie case’ in the second step of the inquiry implies a minimal factual burden: ‘[a] prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.’” Schimmel, 438 S.W.3d at 855 (quoting KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.— Houston [1st Dist.] 2013, pet. denied)).

2019"The legislature's use of 'prima facie case' in the second step of the inquiry implies a minimal factual burden: '[a] prima facie case represents the minimum quantity of evidence necessary to support a rational inference that the allegation of fact is true.' " Schimmel , 438 S.W.3d at 855 (quoting KTRK Television, Inc. v. Robinson , 409 S.W.3d 682 , 688 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) ).

2021See Webb, 760 S.W.2d at 269 (court’s conclusion that the challenged pretrial identification procedure was not impermissibly suggestive obviates the need to consider whether it creates substantial likelihood of misidentification); Balderas, 517 S.W.3d at 792 (defendant bears burden to establish by clear and convincing evidence that the pretrial procedure was impermissibly suggestive).

2021Proceeding to the second step depends on the resolution of the first step: “If the court determines that a pretrial identification procedure was impermissibly suggestive, it then assesses the reliability of the identification under the totality of the circumstances.” Balderas, 517 S.W.3d at 792 (emphasis added). 31 Because we conclude that the photo lineup was not impermissibly suggestive, we need not engage in the second step of the analysis.

2017Code Ann. § 27.005 (b), (c); In re Lipsky, 411 S.W.3d at 543 ); see also Schimmel v. McGregor, 438 S.W.3d 847, 859 (Tex. App.-Houston [1st Dist.] 2014, pet. denied) (explaining that plaintiffs’ argument—that their claims "‘based upon... fraud, misrepresentations and illegal boycott, ... [did] not implicate constitutional protections”—was “relevant to the second step of the inquiry—whether [plaintiffs had] demonstrated a prima facie case for relief on every essential element of their tortious interference claim” (citing In re Lipsky, 411 S.W.3d at 543 )). .

2017Code Ann. § 27.005 (b), (c); In re Lipsky, 411 S.W.3d at 543 ); see also Schimmel v. McGregor, 438 S.W.3d 847, 859 (Tex. App.-Houston [1st Dist.] 2014, pet. denied) (explaining that plaintiffs’ argument—that their claims "‘based upon... fraud, misrepresentations and illegal boycott, ... [did] not implicate constitutional protections”—was “relevant to the second step of the inquiry—whether [plaintiffs had] demonstrated a prima facie case for relief on every essential element of their tortious interference claim” (citing In re Lipsky, 411 S.W.3d at 543 )). .

2018Feldman, 71 S.W.3d at 750 ; Rousseau, 855 S.W.2d at 672 .

2015Feldman, 71 S.W.3d at 750 .

2013Conversely, if the witness possessed personal knowledge of the offense and was clearly anticipated as a witness, the second step of the analysis requires that we determine whether the witness actually conferred with or heard the testimony of another witness and whether “the witness's testimony contradicted the testimony of a witness he actually heard from the opposing side or corroborated the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence.” See Guerra, 771 S.W.2d at 475 (amending the second prong of the test of

1992Under the second step of the analysis, we must determine whether (1) the witness actually conferred with or heard the testimony of another witness without court permission and (2) “the witness’s testimony contradicted] the testimony of a witness he actually heard from the opposing side or corroborate^] the testimony of another witness he actually heard from the same side on an issue of fact bearing upon the issue of guilt or innocence.” Id.

2017See Barley, 906 S.W.2d at 33 .

2013See Simmons, 390 U.S. at 384 , 88 S. Ct. at 971 ; Barley, 906 S.W.2d at 33 .

2015Guzman v. State, 188 S.W.3d 185 , 188–89 (Tex. Crim.

2015The second step of the analysis asks “if there is some evidence in the record to permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included offense.” Rice , 333 S.W.3d at. 145 (emphasis added); see Hall, 225 S.W.3d at 536 ; Guzman v. State, 188 S.W.3d 185, 188-89 (Tex.Crim.App.2006).

2010Id. at 756-57 .

2009Id. at 756-57 .

2018In the second step of the analysis, “we look at whether or not the defendant was harmed or prejudiced by the witness’s violation.” Bell, 938 S.W.2d at 50 ; accord Minor, 91 S.W.3d at 829 .

2015In the second step of the analysis, “we look at whether or not the defendant was harmed or prejudiced by the witness’s violation.” Bell, 938 S.W.2d at 50 ; see also Minor, 91 S.W.3d at 829 .

2024See Ritcherson, 568 S.W.3d at 671 (discussing requirements of two-step analysis for lesser-included offenses); Cavazos, 382 S.W.3d at 386 (concluding second step of analysis was not met).

2024The second step of the test is satisfied “if there is (1) evidence that directly refutes or negates other evidence establishing the greater offense and raises the lesser included offense or (2) evidence that is susceptible to different interpretations, one of which refutes or negates an element of the greater offense and raises the lesser offense.” Ritcherson, 568 S.W.3d at 671 .

2021Goad, 354 S.W.3d at 446 ; Rice, 333 S.W.3d at 144 .

2014See Goad, 354 S.W.3d at 446 .