When and how to submit to juries the option
of convicting defendants of crimes not explicitly charged in the
indictment, information, or complaint has proven quite troublesome
for Texas courts as well as courts in other jurisdictions. One major
area of controversy concerns how a court determines whether to submit
an uncharged offense.
How should a trial court determine whether an instruction
on an uncharged offense may or should be given? As a general rule,
this is determined under a two-step analysis. E.g., State v. Meru, 414
S.W.3d 159, 162–63 (Tex. Crim. App. 2013).
The first step of this analysis is to determine if the uncharged
offense is a lesser included offense of the charged offense under
article 37.09(1) of the Texas Code of Criminal Procedure, a prerequisite
for submission. Tex. Code Crim. Proc. art. 37.09(1). The analysis requires a comparison
of (1) the elements of the charged offense as alleged in the charging
instrument with (2) the elements of the uncharged offense.
Under Hall v. State, 225
S.W.3d 524 (Tex. Crim. App. 2007), this comparison is done
using a cognate-pleading approach. The court of criminal appeals
explained this approach:
An offense is a lesser-included offense of another offense,
under Article 37.09(1) of the Code of Criminal Procedure, if 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. Both statutory elements and any descriptive averments alleged
in the indictment for the greater-inclusive offense should be compared
to the statutory elements of the lesser offense. If a descriptive
averment in the indictment for the greater offense is identical
to an element of the lesser offense, or 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.
Ex parte Watson, 306
S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g)
(citations omitted).
Meru developed this further:
[T]he elements of the lesser-included offense do not have
to be pleaded in the indictment if they can be deduced from facts
alleged in the indictment. In this situation, the functional-equivalence
concept can be employed in the lesser-included-offense analysis.
When utilizing functional equivalence, the court examines the elements
of the lesser offense and decides whether they are “functionally
the same or less than those required to prove the charged offense.”
This analysis has been applied in a number of recent decisions. Meru, 414
S.W.3d at 164 (criminal trespass was not lesser
included offense of burglary because entry element of criminal trespass
[requiring intrusion of whole body] does not require same or less
proof than entry for burglary [alleged without specification and
thus under statutory definition requiring intrusion of: (1) any
part of the body or (2) any physical object connected with the body]
and there were no facts alleged in indictment that would allow entry
element of criminal trespass to be deduced); Wortham v. State, 412 S.W.3d
552 (Tex. Crim. App. 2013) (reckless injury to a child
and criminally negligent injury to a child by act were lesser included
offenses of knowing or intentional injury to a child by act); Cavazos v. State, 382
S.W.3d 377 (Tex. Crim. App. 2012) (manslaughter was
lesser included offense of murder based on act committed with intent
to cause serious bodily injury, resulting in death); Rice v. State, 333
S.W.3d 140 (Tex. Crim. App. 2011) (reckless driving
was not lesser included offense of aggravated assault with deadly
weapon, i.e., a motor vehicle, because aggravated assault as pled did
not require proof that defendant drove the motor vehicle as required
for reckless driving).
If the uncharged offense is a lesser included offense under
the analysis above, the court must reach the second step of the
analysis. This second step focuses on the evidence before the jury
and asks whether, under this evidence, a rational jury could find that,
if the defendant is guilty, he is guilty only of the lesser included
offense. See Meru, 414
S.W.3d at 162–63; Sweed
v. State, 351
S.W.3d 63, 68 (Tex. Crim. App. 2011).
The court of criminal appeals explained further what is needed
for a case to present the necessary contested fact question as to
whether the defendant, if guilty, is guilty only of the lesser included
offense:
“Anything more than a scintilla of evidence is sufficient
to entitle a defendant to a lesser charge.” Bignall v. State, 887
S.W.2d 21, 23 (Tex.Crim.App.1994). Although this threshold
showing is low, “it is not enough that 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.” Skinner v.
State, 956
S.W.2d 532, 543 (Tex.Crim.App.1997). Accordingly, we
have stated that the standard may be satisfied if some evidence
refutes or negates other evidence establishing the greater offense
or if the evidence presented is subject to different interpretations.
If the state, on the other hand, seeks submission of a lesser
included offense, the court need not apply the second step of the
analysis outlined above. In the event that the uncharged offense
is a lesser included offense of the charged crime, that uncharged offense
should be submitted without reference to the state of the evidence
in the particular case if requested by the state. Grey v. State, 298
S.W.3d 644 (Tex. Crim. App. 2009).
The rationale for this, Grey explained,
is the state’s charging discretion:
[T]he State can abandon an element of the charged offense
without prior notice and proceed to prosecute a lesser-included
offense. If the State can abandon the charged offense in favor of
a lesser-included offense, there is no logical reason why the State
could not abandon its unqualified pursuit of the charged offense
in favor of a qualified pursuit that includes the prosecution of a
lesser-included offense in the alternative.
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Comment
When and how to submit to juries the option of convicting defendants of crimes not explicitly charged in the indictment, information, or complaint has proven quite troublesome for Texas courts as well as courts in other jurisdictions. One major area of controversy concerns how a court determines whether to submit an uncharged offense.
How should a trial court determine whether an instruction on an uncharged offense may or should be given? As a general rule, this is determined under a two-step analysis. E.g., State v. Meru, 414 S.W.3d 159, 162–63 (Tex. Crim. App. 2013).
The first step of this analysis is to determine if the uncharged offense is a lesser included offense of the charged offense under article 37.09(1) of the Texas Code of Criminal Procedure, a prerequisite for submission. Tex. Code Crim. Proc. art. 37.09(1). The analysis requires a comparison of (1) the elements of the charged offense as alleged in the charging instrument with (2) the elements of the uncharged offense.
Under Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), this comparison is done using a cognate-pleading approach. The court of criminal appeals explained this approach:
Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g) (citations omitted).
Meru developed this further:
Meru, 414 S.W.3d at 162.
This analysis has been applied in a number of recent decisions. Meru, 414 S.W.3d at 164 (criminal trespass was not lesser included offense of burglary because entry element of criminal trespass [requiring intrusion of whole body] does not require same or less proof than entry for burglary [alleged without specification and thus under statutory definition requiring intrusion of: (1) any part of the body or (2) any physical object connected with the body] and there were no facts alleged in indictment that would allow entry element of criminal trespass to be deduced); Wortham v. State, 412 S.W.3d 552 (Tex. Crim. App. 2013) (reckless injury to a child and criminally negligent injury to a child by act were lesser included offenses of knowing or intentional injury to a child by act); Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) (manslaughter was lesser included offense of murder based on act committed with intent to cause serious bodily injury, resulting in death); Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) (reckless driving was not lesser included offense of aggravated assault with deadly weapon, i.e., a motor vehicle, because aggravated assault as pled did not require proof that defendant drove the motor vehicle as required for reckless driving).
If the uncharged offense is a lesser included offense under the analysis above, the court must reach the second step of the analysis. This second step focuses on the evidence before the jury and asks whether, under this evidence, a rational jury could find that, if the defendant is guilty, he is guilty only of the lesser included offense. See Meru, 414 S.W.3d at 162–63; Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011).
The court of criminal appeals explained further what is needed for a case to present the necessary contested fact question as to whether the defendant, if guilty, is guilty only of the lesser included offense:
Sweed, 351 S.W.3d at 68.
If the state, on the other hand, seeks submission of a lesser included offense, the court need not apply the second step of the analysis outlined above. In the event that the uncharged offense is a lesser included offense of the charged crime, that uncharged offense should be submitted without reference to the state of the evidence in the particular case if requested by the state. Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009).
The rationale for this, Grey explained, is the state’s charging discretion:
Grey, 298 S.W.3d at 650.