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Chapter 5

Submission of Lesser Included Offenses

(Last Updated January 2024)

5.1 Determining If Uncharged Offense Is a Lesser Included Offense for Submission to the Jury

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:

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.”

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).

In Ortiz v. State, the court of criminal appeals held that a bodily injury assault (Tex. Penal Code § 22.01(a)(1)) is not a lesser included offense of family-violence assault by occlusion (Tex. Penal Code § 22.01(d)(2)(B)). Ortiz v. State, 623 S.W.3d 804, 807–08 (Tex. Crim. App. 2021). The court explained that the statutory language of occlusion assault only permits a specific injury: impeding normal breathing or blood circulation. Because assault by causing a bodily injury other than impeding breath or circulation is established by different or additional facts than those required to establish occlusion assault, it cannot be a lesser included offense.

In addition to a comparison of elements, a unit-of-prosecution analysis may sometimes be required. This is because a lesser offense will not be included in a greater charged offense if it is an extraneous crime that the defendant could be prosecuted for in addition to the charged offense. Thus, in Hernandez v. State, a charged offense that the “defendant penetrated the child victim’s mouth with his penis does not include [as lesser included offenses] claims that he touched the child’s torso with his penis or touched her vagina with his hand.” Hernandez v. State, 631 S.W.3d 120, 122 (Tex. Crim. App. 2021). These are all separately prosecutable crimes and thus cannot be considered “included” in the charged offense.

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.

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:

[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.

Grey, 298 S.W.3d at 650.

Requirement to Request Lesser and Specify Evidence Raising the Issue. A trial court is not required to instruct on a lesser included instruction in absence of a party’s request for such an instruction. Williams v. State, 662 S.W.3d 452, 455–56 (Tex. Crim. App. 2021) (citing Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)). For the defendant to complain about the failure to charge the jury on a lesser included offense, the defense must have adequately requested the lesser. This is an exception to the general framework of Almanza v. State—which permits even unpreserved complaints in the jury charge to be considered on appeal, albeit under a less favorable harm standard. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), superseded on other grounds by Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988).

In some instances, a request for the instruction may be all that is required, particularly where it is clear to the trial court and opposing counsel why the defense believes he is entitled to submission of a lesser included offense. But when it is not clear and particularly when the trial court asks the defense to specify what evidence shows he is guilty only of the lesser, a defendant will forfeit that issue on appeal if he fails to direct the judge to particular evidence. Williams, 662 S.W.3d at 463.