Lesser included offense laws can play a significant role for the defense in a Texas criminal case. However, they can also be used by the prosecuting attorney to secure an advantage at trial. If you’ve been charged with a crime, the key to success with lesser included offenses is proper strategy, which requires an in-depth, meticulous understanding of how the law works. An experienced Collin County lawyer can tell you more about the application of these laws to your unique situation, but it’s helpful to review the basics and recognize the potential advantages.Lesser Included Offense Under Texas LawAccording to the Texas Code of Criminal Procedure, a lesser included offense is one that:Can be proved by the same facts, or less than all of the same facts, that would prove the crime actually charged by the prosecution;Is only different from the crime charged, in that it involves a less serious injury or risk of injury to the person, property, or public interest;Is different from the crime charged, in that it involves a less blameworthy mental state of mind; OR,Bears the characteristics of an attempt to commit the crime charged or an otherwise included crime.EXAMPLEA common scenario used to describe the concept of lesser included offenses is the crime of strangulation, which falls under Assaultive Offenses in the Texas Penal Code. Assault is knowingly causing or threatening to cause bodily injury to another person, and it’s a Class A Misdemeanor.Choking someone is a type of assault; however, there’s the added element that it involves stopping the airflow of another person. The assault crime of strangulation is elevated to a Third-Degree Felony.Based upon this example, assault would be a lesser included offense to strangulation. It can be proved by less than all of the same facts because, for assault, it’s not necessary to establish that the defendant stopped the airflow of another person.Implications of a Lesser Included Offense at TrialThe Texas statute on lesser included offenses can be part of an effective strategy in defending your rights in a criminal case. Ultimately, your goal is to get the option of a lesser included offense before the jury when they go to deliberate.Not a Separate Charge: When a lesser included offense is an option in your case, it will not come as a separate charge. Only a judge can order the jury to consider whether to convict you for a crime that’s not part of the official charges against you, and he or she would do so through jury instructions.How Jury Instructions Work in Texas: When the prosecutor has presented the evidence against you and you have presented all facts and arguments for your defense, the jury will deliberate about the case. However, they receive instructions from the judge before heading off to discuss your guilt or innocence, such as the essential elements of the crime.Prosecuting and defense attorneys submit their requests for jury instructions; if they’re approved by the judge, the jury is required to adhere to them when making a decision.Getting the Lesser Included Offense Before the Jury: A specific instruction on a lesser included offense is necessary to ensure the jury considers this as an option; otherwise, the jury will only consider the crime that’s described in the official charges.In general, a defendant has the right to a jury instruction on lesser included offenses if the evidence would allow the jury to reasonably find him or her guilty of the lesser offense – but NOT guilty of the greater offense.Texas courts have held that anything more than a “scintilla” of evidence may be sufficient to include a jury instruction on lesser included offenses. There may be grounds for appeal if a judge declines to include the instruction, because the refusal to allow the jury to consider a lesser offense harms the defendant’s case.
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