lesser included instruction in Texas

2021App. 2007). 38 Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim.

2012Hampton, 109 S.W.3d at 440–41. (a) The Trial Court Did Not Err in Refusing to Submit the Lesser-Included Offense of Murder Alphin, charged with capital murder, requested a lesser-included instruction on murder.17 Murder is a lesser-included offense of capital murder.

2024See Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim.

2024See Delgado, 235 S.W.3d at 250 ; see also Tolbert, 306 S.W.3d at 780 .

2024See Hall, 225 S.W.3d at 531–32, 534–37 (explaining why looking at the evidence adduced at trial before first looking at the charging instrument leads to different results in a lesser-included analysis and is improper).

2021Williams — 17 “anything more than a scintilla of evidence” in requesting an instruction, but he is entitled to such an instruction (and the trial judge must include such an instruction) only when the evidence establishes the lesser- included offense as a valid, rational alternative to the charged offense.37 Thus, if a defendant requests a particular lesser-included instruction and he sets out, on the record, the specific evidence that supports a rational basis for rejecting the greater offense but supporting the lesser offense,38 the trial judge errs if he refuses to instruct the jury on that

2017App. 1993) (jury could not have rationally concluded that defendant, who was convicted of capital murder based on a theory that he murdered his victim in the course of committing a robbery, formulated an intent to steal items from the victim after the murder occurred, where the only evidence presented at trial demonstrated that the defendant entered the victim’s home, shot her, and stole valuables from her, leading to the only rational inference that defendant developed the intent to steal the items either before or during the murder); see generally Cavazos, 382 S.W.3d at 385 (requiring more t

2015See Cavazos, 382 S.W.3d at 383 . 2 The Evidence Appellant contends that he was entitled to a lesser included instruction because the victim did not see him masturbating.

2018See Sweed, 351 S.W.3d at 65, 69 (fifteen- to thirty-minute delay between the theft and the assault and intervening circumstances, such as entering and exiting an apartment near the theft, warranted a lesser included instruction for theft in a robbery appeal).

2014Referring to the second prong of the lesser-included test, we explained that, “[i]f ⅛ the course of committing theft’ could not be proven at trial, then the theft and the assault were separate events, and Appellant could not be found guilty of robbery or aggravated robbery.” Id. at 69 .

2015Moore, 969 S.W.2d at 8 .

2015Moore, 969 S.W.2d at 8 .

2019When a lesser-included instruction is erroneously denied, the jury is also “denied the opportunity to consider the entire range of offenses presented by the evidence.” Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim.

2019That is, when a lesser-included instruction raised by the evidence is denied, a jury, “believing the defendant to have committed some crime, but given only the option to convict him of a greater offense, may have chosen to find him guilty of that greater offense, rather than to acquit him altogether, even though it had a reasonable doubt he really committed the greater offense.” Id. (discussing rationale by Supreme Court in Beck v. Alabama, 447 U.S. 625, 634 (1980)).

2024See Delgado, 235 S.W.3d at 250 ; see also Tolbert, 306 S.W.3d at 780 .

2020See Delgado, 235 S.W.3d at 250 ; see also Tolbert, 306 S.W.3d at 780 .

2021Accordingly, just as a lesser-included instruction for assault can be given in cases in which a defendant is charged under one of the other parallel clauses, see, e.g., Hall v. State, 158 S.W.3d 470, 473-76 (Tex. Crim.

2010Id. at 474-75 .

2025See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim.

2016See Tex. Penal Code Ann. § 31.03 (e)(3); Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); see also Ray, 106 S.W.3d at 302 (testimony that stolen truck could have been sold for one dollar below the threshold for the lesser-included offense entitled defendant to lesser-included offense instruction).

2018Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim.

2011See Hampton v. State, 109 S.W.3d 437, 440-42 (Tex.Crim.App.2003) (rejecting State’s argument that since knife, which was necessary to prove aggravating element, was never recovered, jury’s finding of guilt for sexual assault was valid rational alternative to charged offense, explaining that it is not enough that jury may disbelieve crucial evidence pertaining to greater offense); Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App.1997), cert. denied, 523 U.S. 1079 , 118 S.Ct. 1526 , 140 L.Ed.2d 677 (1998) (“It is not enough that the jury may disbelieve crucial evidence pertaining to the great

2012Goad, 2011 WL 5375119, at *2 ; Young v. State, 283 S.W.3d 854, 875-76 (Tex. Crim.

2011See Young , 283 S.W.3d at 875-76 ; Moore v. State , 969 S.W.2d 4, 11 (Tex. Crim.

2010See generally Grey v. State, 298 S.W.3d 644, 652 (Tex.Cr.App.2009) (Hervey, J., concurring); Grey, 298 S.W.3d at 652-58 (Cochran, J., concurring) (discussing "when a trial court must grant a request by either the defense or State for a lesser-included instruction and when it may include such an instruction, with or without a request”) (emphasis in original). .

2010See generally Grey v. State, 298 S.W.3d 644, 652 (Tex.Cr.App.2009) (Hervey, J., concurring); Grey, 298 S.W.3d at 652-58 (Cochran, J., concurring) (discussing "when a trial court must grant a request by either the defense or State for a lesser-included instruction and when it may include such an instruction, with or without a request”) (emphasis in original). .

2009See, e.g., State v. Keffer, 860 P.2d 1118, 1133 (Wyo.1993) (finding that a lesser-included instruction is available in equal measure to the defense and the prosecutor). .

2009See, e.g., State v. Keffer, 860 P.2d 1118, 1133 (Wyo.1993) (finding that a lesser-included instruction is available in equal measure to the defense and the prosecutor). [15] See generally, Catherine L.

2018App. 2014) (holding defendant was not entitled to a lesser-included instruction on manslaughter when the proof upon which she relied was also sufficient to prove another, greater lesser- included offense of capital murder); Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim.

2018App. 2014) (holding appellant was not entitled to a lesser-included instruction on manslaughter when the proof upon which she relied was also sufficient to prove another, greater lesser-included offense of capital murder); Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim.

2018In conducting this analysis, reviewing courts “consider neither the credibility of the evidence pertaining to the lesser-included offense, nor whether it conflicts with other evidence.” Goad v. State, 354 S.W.3d 443 , 446–47 (Tex. Crim.

2015First, we determine “whether the offense contained in the requested instruction is a lesser-included offense of the charged offense.”4 If it is, then we decide “whether the admitted evidence supports the instruction.”5 The purpose of a lesser-included instruction is to avoid leaving the jurors with two “equally distasteful” options: (1) to acquit the defendant when they believed him or her guilty of the lesser-included offense, or (2) to convict the defendant of an offense that they did not believe he or she committed.6 To avoid that predicament, we liberally permit a lesser-included instructi

2025When performing the first step of a lesser-included analysis, appellate courts “compare the statutory elements of the alleged lesser offense and the statutory elements and any descriptive averments in the indictment.” Ritcherson, 568 S.W.3d at 670-71 .

2025We must consider whether the record contains “(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 ; see Chavez, 666 S.W.3d at 778 (setting out how trial courts determine whether to submit a lesser-included instruction).

2015Even if true, that does not entitle him to a lesser included offense instruction.10 “[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.” Bignall v. State, 887 S.W.2d 21 , 24 10 “After examining the record for all evidence that tends to establish a lesser offense, a trial court, presuming the truth of all the evidence, must then decide whether the evidence supports the lesser off

2009App. 2007). 8 That is, the trial judge must give a requested instruction. 9 Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.

2019The State responds that appellant was not entitled to a lesser-included instruction because the evidence shows (1) appellant “actually broke” the syringe, (2) appellant concealed4 the syringe by holding it in his hand and under the seat, 4 The State cites Hines v. State, 535 S.W.3d 102, 110 (Tex. App.—Eastland 2017, pet. ref’d); Stuart v. State, No. 03-15-00536-CR, 2017 WL 2536863 , at *4 (Tex. App.—Austin June 7, 2017, no pet.) (mem. op., not designated for publication); Munsch v. State, No. 02-12-00028- CR, 2014 WL 4105281 , at *6 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not

2019The State responds that appellant was not entitled to a lesser-included instruction because the evidence shows (1) appellant “actually broke” the syringe, (2) appellant concealed4 the syringe by holding it in his hand and under the seat, 4 The State cites Hines v. State, 535 S.W.3d 102, 110 (Tex. App.—Eastland 2017, pet. ref’d); Stuart v. State, No. 03-15-00536-CR, 2017 WL 2536863 , at *4 (Tex. App.—Austin June 7, 2017, no pet.) (mem. op., not designated for publication); Munsch v. State, No. 02-12-00028- CR, 2014 WL 4105281 , at *6 (Tex. App.—Fort Worth Aug. 21, 2014, no pet.) (mem. op., not

2016See id. at 436 .

2016But the lesser-included instruction must be included regardless of whether the supporting evidence is “strong, weak, unimpeached, or contradicted.” Bell, 693 S.W.2d at 442 (emphasis added; internal quotations omitted).

2019That is, when a lesser-included instruction raised by the evidence is denied, a jury, “believing the defendant to have committed some crime, but given only the option to convict him of a greater offense, may have chosen to find him guilty of that greater offense, rather than to acquit him altogether, even though it had a reasonable doubt he really committed the greater offense.” Id. (discussing rationale by Supreme Court in Beck v. Alabama, 447 U.S. 625, 634 (1980)).

2019Thus, the court of criminal appeals has “routinely found ‘some’ harm, and therefore reversed, whenever the trial court has failed to submit a lesser included offense that was requested and raised by the evidence—at least where that failure left the jury with the sole option either to convict the defendant of the greater offense or to acquit him.” Id.

2019Strickland, supra. Trial counsel has not responded, the State did not provide an answer, and there are no findings from the trial court.

2019Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim.

2019Nangurai, 507 S.W.3d at 234 ; Almanza, 686 S.W.2d at 171 . 2.

2015The denial of a requested jury instruction is measured for “some harm.” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App. 1984); Arline v. State, 721 S.W.2d 348, 351 (Tex.Cr.App. 1986); and, Otting v. State, 8 S.W.3d 681, 688 (Tex.App. - Austin 1999).

2017See, e.g., Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim.

2015And although Kachel continued to claim that his genitals were covered by his thong underwear and blocked from view by his truck, those claims—in light of all the evidence presented to the jury—did not rise to the level of Lofton’s flat denial of any culpability that would prevent the requested lesser- included offense from serving as a “valid, rational alternative to the charged offense.” 32 Similarly, the State cites Godsey v. State33 and argues that, because Kachel never testified and in fact rested without presenting any evidence, his statements to the police are 29 Kachel, 2013 Tex. App. L