Main Menu
Bookmark Page
My AccountChapter 22
- 22.1 Instruction—Assault by Causing Bodily Injury
- 22.2 Instruction—Assault by Threat
- 22.3 Instruction—Assault by Offensive Touching
- 22.4 Instruction—Assault by Impeding Normal Breathing or Circulation
- 22.5 Instruction—Aggravated Assault by Causing Serious Bodily Injury
- 22.6 Instruction—Aggravated Assault by Using or Exhibiting Deadly Weapon in Causing Bodily Injury
- 22.7 Instruction—Presumption of Knowledge—Aggravated Assault on Public Servant Wearing Distinctive Uniform or Badge
- 22.8 General Comments on Injury to a Child, Elderly Individual, or Disabled Individual
- 22.9 Instruction—Serious Bodily Injury to Child by Act
- 22.10 Comments on Injury to a Child and Lesser Included Offenses
- 22.11 Instruction—First-Degree Felony Serious Bodily Injury to Child by Act with Second-Degree Injury as a Lesser Included Offense
- 22.12 Instruction—Serious Bodily Injury to Child by Omission—Duty Created by Assumption of Care, Custody, or Control with “Notice” Defense
- 22.13 Instruction—Serious Bodily Injury to Child by Omission—Duty Created by Parental Relationship
- 22.14 Instruction—Injury to Child—Affirmative Defense of Religious Treatment
- 22.15 Instruction—Injury to Child—Affirmative Defense of Family Violence
- 22.16 Instruction—Injury to Child—Affirmative Defense of Minimal Age Difference
- 22.17 Instruction—Endangering Child by Act
- 22.18 Instruction—Abandoning Child—State Jail Felony
- 22.19 Instruction—Abandoning Child—Third-Degree Felony
- 22.20 Instruction—Abandoning Child—Second-Degree Felony
- 22.21 Instruction—Deadly Conduct—Recklessness
- 22.22 Instruction—Deadly Conduct—Discharge of Firearm in Direction of Individuals
- 22.23 Instruction—Deadly Conduct—Discharge of Firearm in Direction of Habitation, Building, or Vehicle
- 22.24 Instruction—Presumption of Recklessness and Danger—Knowingly Pointing a Firearm at Another Person
- 22.25 Instruction—Deadly Conduct—Presumption of Danger and Recklessness
- 22.26 General Comments on Consent to Defense to Certain Assaultive Crimes
- 22.27 Instruction—Defense of Consent
- 22.28 Instruction—Terroristic Threat
Comment
There has been vigorous disagreement among the Committee members about how to submit lesser included offenses. Specifically, should the jury first come to a unanimous verdict of “not guilty” on the greater offense before convicting on a lesser offense (“acquittal first” approach), or is it enough if the jury exerts “reasonable effort” to reach a verdict on the greater offense? As noted in CPJC 5.2, the holding in Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009), does not provide a clear answer on the required approach in Texas. Dicta in the case states it may be “better practice” to instruct jurors that if they cannot agree on the greater, they can go on to consider the lesser without first arriving at a final decision as to the greater. Barrios, 283 S.W.3d at 353. The Committee’s solution was to draft instructions for both approaches and have practitioners decide which to use.
Accordingly, CPJC 5.3 offers an example of an “acquittal first” instruction in which a jury must first unanimously acquit the defendant of the greater offense before convicting the defendant on a lesser offense. In contrast, CPJC 5.4 provides a “reasonable effort” instruction in which the jury must address the greater offense first, but, if after all reasonable efforts the jury is unable to reach a unanimous verdict on the greater offense, it can convict the defendant on the lesser offense. Under either approach, (1) the jury can discuss the greater and lesser offenses in any order; (2) the jury must resolve any reasonable doubt (as to which offense the defendant is guilty of) in favor of the lesser offense, and (3) the legal significance of conviction for the lesser offense is acquittal of the greater offense.
The following table demonstrates the difference between the “acquittal first” approach and the “reasonable effort” approach to lesser included offense instructions.
Acquit First of Greater (CPJC 5.3)
Reasonable Efforts (CPJC 5.4)
Similarities
Jury can discuss offenses in any order
Jury can discuss offenses in any order
Jury must resolve any reasonable doubt (as to which offense defendant is guilty of) in favor of the lesser
Jury must resolve any reasonable doubt (as to which offense defendant is guilty of) in favor of the lesser
The legal significance of conviction for lesser is acquittal of greater
The legal significance of conviction for lesser is acquittal of greater
Difference
Before convicting on lesser, jury must unanimously acquit on greater
Jury must address the greater first, but if, after all reasonable efforts, the jury is unable to reach a unanimous verdict on greater, it can convict on lesser
CPJC 22.11 sets out a lesser included offense for the offense of injury to a child, and both approaches to lesser included offenses are included as options.