lesser included offense instruction in Texas

2024In Hall, the Court of Criminal Appeals reasoned that although the evidence actually presented at trial may “show a number of other lesser offenses,” to be entitled to a lesser-included-offense instruction, the proposed lesser-included offense’s elements must be “established by the same or less than the proof required to prove the allegations in the indictment.” 225 S.W.3d at 536–37 (emphasis added).

2022App. 2007), in 2007, at which time it determined that a focus on the statutory elements of the lesser and greater offenses in question was “the sole test for determining in the first step whether a party may be entitled to a lesser-included-offense instruction.” Ex parte Marin, 2008 WL 902143 , at *5 (quoting Hall, 225 S.W.3d at 535 ). “[I]n light of the earlier conflict in our decisions following our opinion in Day on rehearing, applicant’s challenge to the trial court’s inclusion of conspiracy to commit murder as a lesser- included offense of murder raised a strong issue on which she was qui

2022App. 2012) (“If the evidence raised at trial casts doubt on the greater offense, a lesser-included offense instruction allows the jury to vote for a rational alternative.”). 25 Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim.

2012A defendant's entitlement to a lesser-included offense instruction is determined under the two-pronged test outlined in Rousseau v. State. 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993); Grey v. State, 298 S.W.3d 644, 645 (Tex.Crim.App. 2009).

2026Manahan v. State, Nos. 07-18-00196-CR, 07-18-00197-CR, 2019 Tex. App. LEXIS 10232 , at *3 (Tex. App.—Amarillo Nov. 25, 2019, no pet.) (mem. op., not designated for publication) (citing Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim.

2015App. 2012)). 10 A trial court’s decision to submit or deny an instruction on a lesser included offense is reviewed for an abuse of discretion.82 The reviewing court uses a two-step analysis to determine whether an appellant was entitled to a lesser included offense instruction.83 First, the lesser offense must be a lesser included offense as defined by Code of Criminal Procedure article 37.09.84 Article 37.09 states an offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) i

2020To entitle the defendant to a lesser included offense instruction, “it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some 10 evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted.” 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.

2021Standard of Review “Determining whether a defendant is entitled to a lesser-included-offense instruction requires a two-part analysis.” Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim.

2015Anything more than a scintilla of evidence is sufficient to entitle a defendant to the lesser included offense instruction.' See Goad, 354 S.W.3d at 446 .

2020Since “[i]t ‘is not evidence nor does it “supply” evidence,’” it “play[s] no part in determining whether a defendant is entitled to a lesser-included offense instruction.” Id. (quoting Green v. State, 893 S.W.2d 536, 545 (Tex. Crim.

2018According to Tyler, he was entitled to the lesser-included offense instruction because there was some evidence that he recklessly, not intentionally or knowingly, caused S.V.’s death, and that “[i]t was up to the jury to determine the strength and believability of this evidence[.]” “[A] lesser-included offense instruction shall be included in the jury charge if: (1) ‘the requested charge is for a lesser-included offense of the charged offense; and (2) there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense.’” Guzman v. State, 188 S.W.3d 185, 188 (Tex. C

2026“The second step of the lesser-included-offense analysis is to determine if there is some evidence in the record which would 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 . “[T]he guilty-only requirement is met if there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense.” Chavez, 666 S.W.3d at 776.

2025“The second step of the lesser-included-offense analysis is to determine if there is some evidence in the record which would 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 . “[T]he guilty-only requirement is met if there is affirmative evidence of a factual dispute that raises the lesser offense and rebuts or negates other evidence establishing the greater offense.” Chavez, 666 S.W.3d at 776.

2020In Lofton, the Texas Court of Criminal Appeals found that where the State proved the greater offense of assaulting a police officer, evidence that the defendant only intended to prevent his arrest did not entitle him to a lesser-included-offense instruction because, “[e]ven if appellant had intended only to prevent his arrest, the force used by appellant against [the officer], at the very least, recklessly caused [the officer] to suffer a bodily injury.” Lofton, 45 S.W.3d at 652 .

2016The Texarkana Court of Appeals held that the facts did not justify the lesser-included offense instruction, reasoning that the evidence “showed that Gumpert recklessly caused bodily injury in disregarding the substantial non-justifiable risk that his struggling, flailing about, and kicking could result in bodily injury to [the police officer] . . . .” Id. at 454 (citing Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim.

2017This alone does not constitute the requisite “scintilla of evidence” to entitle Appellant to the lesser- included-offense instruction: “If a defendant either presents evidence that he committed no offense or presents no evidence, and there is no evidence otherwise showing he is guilty only of a lesser included offense, then a charge on a lesser included offense is not required.” Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim.

2015See Sweed, 351 S.W.3d at 68 (explaining that there must be some evidence directly germane to the lesser offense before an instruction is warranted and it is not enough that the jury might merely disbelieve evidence regarding the greater offense); Bignall, 887 S.W.2d at 24 (explaining that if a defendant only presents evidence he committed no offense, and there is no evidence otherwise showing he is guilty only of the lesser-included offense, then a lesser-included offense instruction is not 16 warranted).

2023The first prong asks whether the requested lesser offense meets Article 37.09’s definition of a “lesser included offense . . . of the offense charged.” See Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim.

2021The second step of the inquiry as to whether a defendant is entitled to a lesser-included-offense instruction “requires examining all George - 15 the evidence admitted at trial,” such that “[t]he entire record is considered.” Bullock, 509 S.W.3d at 925 ; see also Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim.

2025The Court ultimately concluded the defendant was not entitled to a lesser-included-offense instruction for criminal trespass, but that criminal 6 trespass could have been a lesser included offense if the indictment had “alleged that he entered by intruding his entire body into the habitation.” Id. at 164 .

2024The court ultimately concluded that the appellant was not entitled to a lesser-included offense instruction for criminal trespass but that criminal trespass could have been a lesser included offense if the indictment had “alleged that he entered by intruding his entire body into the habitation.” Id. at 164 .

2023App. 2009), the Court decided that, when it is the State that seeks the lesser-included-offense instruction, it need only satisfy the first prong of the Royster-Aguilar test before an instruction on the lesser- included offense becomes “the law applicable to the case.” Id. at 645 (holding that the State is “not bound” by the second prong of the Royster- Aguilar test).

2020App. 1998), was entitled to an instruction on manslaughter because there was evidence that he could have acted recklessly. 6 request a lesser-included-offense instruction.” Grey v. State, 298 S.W.3d 644, 655 (Tex. Crim.

2020As to the jury charge, the Texas Court of Criminal Appeals has “consistently” and “routinely” found some harm when, as here, the erroneous denial of a lesser- included-offense instruction leaves the jury with “the sole option either to convict the defendant of the greater offense or to acquit him.” Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim.

2015"If the absence of the lesser-included offense instruction left the jury only with the options either to convict the defendant of the charged offense or tc acquit him ' fas the case at bar], a finding of harm is essentially automatic because the jury was denied the opportunity to con vict the defendant of the lesser offense." Iofton, 6 S.W.Sd at 800; see also: Hi&chell v. State, 807 S.W.2d 740, 742 (Tx.Crim.App. 1991); Jiminez, supra, at 299 (citing Saunder v. State, 913 S.W.2d 564, 571 (Tx.App.-Corpus Christi, 1994).

2011Avila v. State, 954 S.W.2d 830, 842 (Tex.App.--El Paso 1997, pet. ref’d); see also Arevalo v. State, 943 S.W.2d 887, 889-90 (Tex.Crim.App. 1997)(applying the second prong of the Roussea-Aguilar- Royster test to State’s request for a lesser-included offense instruction), overruled by Grey, 298 S.W.3d at 651 .

2011Avila v. State , 954 S.W.2d 830, 842 (Tex.App.--El Paso 1997, pet. ref’d); see also Arevalo v. State , 943 S.W.2d 887, 889-90 (Tex.Crim.App. 1997)(applying the second prong of the Roussea-Aguilar-Royster test to State’s request for a lesser-included offense instruction), overruled by Grey , 298 S.W.3d at 651 .

2015A lesser-included offense instruction is not required solely because “the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there 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 warranted.” Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim.

2014But before a lesser-included offense instruction is required, “[t]here must be affirmative evidence to rebut the greater element, and the jury must not simply disbelieve evidence establishing the greater.” Hampton v. State, 109 S.W.3d 437, 439 (Tex. Crim.

2020See Lofton, 45 S.W.3d at 652 ; Wesbrook, 29 S.W.3d at 113–14; Gumpert, 48 S.W.3d at 454 .

2002“To determine if a defendant is entitled to a lesser-included offense instruction, a two prong test applies: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense.” Wesbrook v. State , 29 S.W.3d 103, 113 (Tex. Crim .

2022The Court 7 instructed that “if an element of the lesser offense may be deduced from a descriptive averment in the indictment for the greater-inclusive offense, this should be factored into the lesser-included-offense analysis in asking whether all of the elements of the lesser offense are contained within the allegations of the greater offense.” Id. at 273; accord Llorens v. State, 520 S.W.3d 129, 135 (Tex. App.—Austin 2017, pet. ref’d) (beginning double-jeopardy analysis by reviewing offenses at issue as they were “limited by the allegations in the indictment”); Ex parte Pritzkau, 391 S.W.3d

2015“In this situation, the functional-equivalence concept may be part of the lesser-included-offense analysis.” Id.

2026Id. “[A] defendant is not entitled to a lesser-included offense instruction based on the absence of evidence, and the evidence must be ‘directly germane to the lesser-included offense[.]’” Id. (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim.

2024When making a lesser-included offense analysis however, “it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense.” Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim.

2023See Jackson v. State, 160 S.W.3d 568, 574 (Tex. Crim.

2021See Jackson v. State, 160 S.W.3d 568, 575 (Tex. Crim.

2011App.1998) (notions of procedural default apply to the State); Ex parte Granger, 850 S.W.2d 513 (Tex.Crim.App.1993) (distinguishing prior case of Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990) on the basis that the State in Stephens was barred from prosecuting a lesser-included offense in a subsequent trial after acquittal for the greater offense on appeal on legal insufficiency grounds when a lesser-included-offense instruction had not been submitted in the earlier trial, and the State had failed to request one). [98] Ashe, 397 U.S. at 437-39 , 90 S.Ct. 1189 . [99] Id. at 439-40 , 90 S.

2011App.1998) (notions of procedural default apply to the State); Ex parte Granger, 850 S.W.2d 513 (Tex.Crim.App.1993) (distinguishing prior case of Stephens v. State, 806 S.W.2d 812 (Tex.Crim.App.1990) on the basis that the State in Stephens was barred from prosecuting a lesser-included offense in a subsequent trial after acquittal for the greater offense on appeal on legal insufficiency grounds when a lesser-included-offense instruction had not been submitted in the earlier trial, and the State had failed to request one). .

2011See also McKithan, 324 S.W.3d 582 (holding that offensive-contact assault was not a lesser-included offense of the charged offense of aggravated sexual assault because the “physical force and violence” allegation of the indictment was not the functional equivalent of physical contact and the State was not required to prove physical contact to establish the “physical force and violence” allegation); Farrakhan, 247 S.W.3d 720 (affirming that fleeing or attempting to elude police officer was not a lesser-included offense of evading detention by use of a motor vehicle because proof of the charged

2011See also McKithan , 324 S.W.3d 582 (holding that offensive-contact assault was not a lesser-included offense of the charged offense of aggravated sexual assault because the "physical force and violence" allegation of the indictment was not the functional equivalent of physical contact and the State was not required to prove physical contact to establish the "physical force and violence" allegation); Farrakhan , 263 S.W.3d 720 (affirming that fleeing or attempting to elude police officer was not a lesser-included offense of evading detention by use of a motor vehicle because proof of the charge

2019Trial counsel may have chosen not to request the lesser-included offense because he believed that the jury would acquit Appellant of the charged offense of evading arrest with a motor vehicle. “[I]t is a reasonable trial strategy to decide to not request a charge on a 20 lesser included offense.” Davis v. State, 930 S.W.2d 765, 768 (Tex. App.— Houston [1st Dist.] 1996, pet. ref’d); see Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim.

2013Manslaughter “[I]t is a reasonable trial strategy to decide to not request a charge on a lesser included offense.” Davis v. State, 930 S.W.2d 765, 768 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd); see also Ex parte White, 160 S.W.3d 46, 55 (Tex.Crim.App.2004) (no ineffective assistance for failing to request a lesser included offense instruction on manslaughter when the defendant preferred to adopt an all-or-nothing trial strategy).

2004Cunningham, 726 S.W.2d at 153 ; Banda v. State, 890 S.W.2d 42, 42-43 (Tex.Crim.App.1994); Sandoval v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) (“a statement made by a defendant ‘cannot be plucked out of the record and examined in a vacuum’ in a lesser-included offense analysis”).

2004Cunningham, 726 S.W.2d at 153 ; Banda v. State, 890 S.W.2d 42, 42-43 (Tex.Crim.App.1994); Sandoval v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) ("a statement made by a defendant `cannot be plucked out of the record and examined in a vacuum' in a lesser-included offense analysis").

2016The Court of Criminal Appeals has held that the test for determining whether evidence is legally sufficient and the test for determining whether to submit a lesser-included offense instruction are “quite different.” Wasylina v. State, 275 S.W.3d 908, 909 (Tex.Crim.App.2009) (quoting Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005)).

2014The Court of Criminal Appeals has held that the test for determining whether evidence is legally sufficient and the test for determining whether to submit a lesser-included offense instruction are “quite different.” Wasylina v. State, 275 S.W.3d 908, 909 (Tex.Crim.App.2009) (quoting Hampton v. State, 165 S.W.3d 691, 693 (Tex.Crim.App.2005)).

2021Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim.

2015Ferrel v. State, 55 S.W. 3d 586 (Tex. Crim.

2024Cavazos, 382 S.W.3d at 383 . 4 Analysis At trial, Appellant’s counsel requested a lesser included offense instruction for assault family violence causing bodily injury, a misdemeanor.

2024“If the evidence raised at trial casts doubt on the greater offense, a lesser-included offense instruction allows the jury to vote for a rational alternative.” Id. at 385 .

2015Determining whether there is evidence that supports giving the instruction to the jury (Rovster v.State, 622 S.W.2d 442 (TCA 1981) ("some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense") The Court of Criminal Appeals has ruled that the "pleadings approach" is the sole test for determining in the first step whether a marty mav be entitled to a lesser-included offense instruction._§alllZZ§,S.W.3d at¢535.

2008On original submission, the court quoted from Sansone v. U.S. , 380 U.S. 343 , 85 S.Ct. 1004 , 13 L.Ed.2d 882 (1965), the comment that "a lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense." Royster, 622 S.W.2d at 444 .

2019See Irving, 176 S.W.3d at 845 (“What the court fails to consider, however, is that while simple assault may be a lesser-included offense of aggravated assault in some cases, here, [the defendant] is asking for a lesser-included offense instruction based on facts not required to establish the commission of the offense charged.”) (emphasis in 9 original).

2012See Tex. Penal Code Ann. § 1.07 (a)(17) (West Supp. 2011) (defining deadly weapon as “anything that in the manner of its use or intended use is capable of 7 constituting the lesser-included offense for which [Jordan] requested an instruction is different than the conduct which was alleged in the charging instrument for [Jordan’s] aggravated-assault charge,” and Jordan asked “for a lesser-included offense instruction based on facts not required to establish the commission of the offense charged.” See Irving, 176 S.W.3d at 845 .

2021The second step of the inquiry as to whether a defendant is entitled to a lesser-included-offense instruction “requires examining all George - 15 the evidence admitted at trial,” such that “[t]he entire record is considered.” Bullock, 509 S.W.3d at 925 ; see also Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim.

2017The Court of Criminal Appeals determined that “there is more than a scintilla of evidence in the record from which a rational fact finder could have found that [appellant] was guilty only of attempted theft of the truck, rather than theft, and thus the court of appeals erred by concluding that the trial court properly declined to give the lesser-included-offense instruction.” Id. at 923 .