first prong test in Texas

2022See Hall, 225 S.W.3d at 535 .

2019Palmer v. State, 471 S.W.3d 569, 570 (Tex. App.— Houston [1st Dist.] 2015, no pet.) (citing Hall, 225 S.W.3d at 535 ).

2015The first prong in this analysis is determining if the lesser included offense is “included within the proof necessary to establish the offense charged.” Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim.

1996Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. [Panel Op.] 1981) (op. on reh’g) (citing Eldred v. State, 578 S.W.2d 721 (Tex.Crim.App.1979)); see also Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.), cert. denied, - U.S. -, 114 S.Ct. 313 , 126 L.Ed.2d 260 (1993). 1 In the case before us, appellant has not met the first prong of the test.

2007Because Appellant has failed to meet the first prong of the exception to the preservation requirement set forth by Gonzalez, see 8 S.W.3d at 643 , we overrule Appellant’s third point.

2002However, when finding that the first prong of the test had not been met, the Gonzalez court did state: “[a]ppellant, therefore, has not sustained his appellate burden of presenting a record showing on its face any multiple punishments violations.” Gonzalez, 8 S.W.3d at 645 .

2014See, e.g., Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Crim.App.2000).

2009See Cardenas v. State , 30 S.W.3d 384, 393 (Tex. Crim.

2010In Klapuch, however, we did not address the first prong of the analysis set out in Threadgill v. State, 146 S.W.3d 654, 665 (Tex. Crim.

2010In Klapuch, however, we did not address the first prong of the analysis set out in Threadgill v. State , 146 S.W.3d 654, 665 (Tex. Crim.

2001Id. at 689 ; Stafford v. State , 813 S.W.2d 503, 506 (Tex. Crim.

2001Id. at 689 ; Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim.

2011See Mallett, 65 S.W.3d at 68 .

2011See Mallett , 65 S.W.3d at 68 .

2009Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim.

2009Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim.

2015Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.

2014Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.

2011See Salinas, 163 S.W.3d at 740 (citing Strickland, 466 U.S. at 687 ).

2010See Threadgill, 146 S.W.3d at 665 ; see also Bargas, 2007 WL 2459194 , at *6 (citing Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim.

2002See Sterner , 767 S.W.2d at 690 .

2001See Sterner, 767 S.W.2d at 690 .

2015OBJECTION NUMBER FOUR : The district court in its Conclusion of Law at 10 has erroneously determined applicant‘fails to overcome the presumption that trial counsel's decision to elicit the applicant's crominal convictions is outside the range of reasonable professional assistance ,because the court reached its conclusion through an incorrect application of the legal standard set by the U.S. Supreme Court in Strickland, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed. 2d 674 (1984)_ Specifically, the court errored in its application of Strickland when it failed to conduct the " two-pronged analysis " s

2015OBJECTION NUMBER FOUR : The district court in its Conclusion of Law at 10 has erroneously determined applicant‘fails to overcome the presumption that trial counsel's decision to elicit the applicant's crominal convictions is outside the range of reasonable professional assistance ,because the court reached its conclusion through an incorrect application of the legal standard set by the U.S. Supreme Court in Strickland, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed. 2d 674 (1984)_ Specifically, the court errored in its application of Strickland when it failed to conduct the " two-pronged analysis " s

2015Proc. art. 37.09(3); see, e.g., Arnold v. State, 234 S.W.3d 664, 671 (Tex. App.—Houston [14th Dist.] 2007) (“There is no question here that the first prong of the test is satisfied: it is well-established that manslaughter is a lesser-included offense of murder… The only difference between the two offenses is the mental state required.”); see also Cavazos, 382 S.W.3d 377, 384 (holding that manslaughter was lesser included offense of murder where murder indictment was predicated upon Penal Code sec. 19.02(b)(2)).

2015The first prong of this test is evaluated under the cognate-pleadings approach, which asks whether “the indictment for the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non- statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced.” Cavazos, 382 S.W.3d at 382 (citing Ex parte Watson, 306 S.W.3d 259 (Tex. Crim.

2009Robertson v. State , 871 S.W.2d 701, 706 (Tex. Crim.

2009Robertson v. State, 871 S.W.2d 701, 706 (Tex.Crim.App.1993), cert. denied, 513 U.S. 853 , 115 S.Ct. 155 , 130 L.Ed.2d 94 (1994).

2008See Moore , 969 S.W.2d at 6-7 ; Baca , 223 S.W.3d at 480 . 3: The record indicates that the victim sustained several superficial stab wounds and abrasions in addition to the stab wound in his neck. 4: The record also reflects that appellant cut another individual across the cheek and nostril. 5: The context of appellant’s statement was the following: Q: (by counsel): What was your feeling about this today as we sit here?

2008See Moore, 969 S.W.2d at 6-7 ; Baca, 223 S.W.3d at 480 . 4 friend and the victim.

2023See Williams, 52 S.W.3d at 184 (holding that where plaintiff challenged conditions of pre-trial confinement, duration of confinement was too short to complete litigation and thus satisfied first prong); Diop v. ICE, 656 F.3d 221, 227 (3rd Cir. 2011) (holding that immigrant’s claim met first prong).

2009See Williams v. Lara, 52 S.W.3d 171, 184-85 (Tex.2001) (holding that former inmates did not have standing to bring constitutional challenge regarding prison policies because court could not assume that plaintiffs would commit another crime that would lead to incarceration).

2015Korthauer, 21 S.W.3d at 578 ; see Goswami, 751 S.W.2d at 490 .

2015See Korthauer, 21 S.W.3d at 578 .

2014Strickland, 466 U.S. at 687 , 104 S. Ct. at 2064 ; Thompson, 9 S.W.3d at 812 .

2013Either (1) the record is inadequate to satisfy the first prong of the test, and we do not know from the record that trial counsel’s performance was inadequate or (2) we have sufficient information to satisfy the first 9 Thompson v. State, 9 S.W.3d 808 , 812–813 (Tex. Crim.

2008Because the risk of penalty is sufficient, see Texas Ass’n of Bus., 852 S.W.2d at 447 , we conclude that the Society satisfies the first prong of the test for associational standing.

2008Because the risk of penalty is sufficient, see Texas Ass'n of Bus. , 852 S.W.2d at 447 , we conclude that the Society satisfies the first prong of the test for associational standing.

2008An analysis under these steps requires an examination of the “totality of the circumstances” surrounding the particular case and a determination of the reliability of the identification.1 The burden is upon the party challenging the identification to prove each prong by clear and convincing evidence. 2 If the first prong of this test is not met, we do not address the second prong to evaluate the likelihood of irreparable misidentification.3 If, however, we determine that the identification procedure was impermissibly suggestive, we must still determine whether such 1 … Barley v. State, 906 S.W

1996Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App.1995), cer t. denied, — U.S. -, 116 S.Ct. 1271 , 134 L.Ed.2d 217 (1996). (citations omitted) Turning to the first prong of the analysis, “[sjuggestiveness may be created by the manner in which the pre-trial identification procedure is conducted ... [or] by the content of the line-up or photo array itself if the suspect is the only individual closely resembling the pre-procedure description.” Id. at 33.

2006Applying the first prong of the test, we are guided by the Texas Court of Criminal Appeals’ decision in Bell v. State, 693 S.W.2d 434 (Tex.Crim.App.1985).

2003The first prong of Rousseau The State concedes the first prong of the test, that assault and deadly conduct are lesser included offenses of aggravated assault on a public servant. [2] See, e.g., Bell v. State , 693 S.W.2d 434 , 437 B 39 (Tex. Crim .

2011Assuming without deciding that the first prong of the test was satisfied in this case, Valadez would be entitled to an instruction on that offense only “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.” Id. at 145 (citing Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim.

2011Assuming without deciding that the first prong of the test was satisfied in this case, Valadez would be entitled to an instruction on that offense only "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." Id . at 145 (citing Guzman v. State , 188 S.W.3d 185, 188-89 (Tex. Crim.

2015The first prong of this test is evaluated under the cognate-pleadings approach, which asks whether “the indictment for the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non- statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced.” Cavazos, 382 S.W.3d at 382 (citing Ex parte Watson, 306 S.W.3d 259 (Tex. Crim.

2015See Watson, 306 S.W.3d at 271 .

2020See Lopez, 343 S.W.3d at 143–44.

2016Strickland, 466 U.S. at 687 , 104 S. Ct. at 2065 ; Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.

2015The critical aspect of McRae, moreover, was forth in Hunt v. Washington State Apple Advertising that the Women’s Division conceded a diversity of views Comm’n, 432 U.S. 333, 343 , 97 S.Ct. 2434, 2441 , 53 within its membership as to the permissibility, necessity, L.Ed.2d 383 (1977). and advisability of abortion.

2015The critical aspect of McRae, moreover, was forth in Hunt v. Washington State Apple Advertising that the Women’s Division conceded a diversity of views Comm’n, 432 U.S. 333, 343 , 97 S.Ct. 2434, 2441 , 53 within its membership as to the permissibility, necessity, L.Ed.2d 383 (1977). and advisability of abortion.