Pleading to a Lesser Included Offense in Houston, Texas > FAQ

What does it require to allow a jury at trial to consider a lesser included offense?

Getting a lesser included test requires: (a) that the lesser offense must actually be a lesser-included offense of the charged offense, as defined by Article 37.09 V.A.C.C.P. and (b) that the record must contain some evidence that permits a rational jury to find that the Defendant is guilty only of the lesser-included offense.

What must the evidence demonstrate in order the a jury to be allowed to consider a lesser-incuded offense?

The evidence must demonstrate that the lesser-included offense is a valid, rational alternative to the charged offense.

How does the Court determine in a trial whether such a jury instruction is appropriate?

In determining whether the instruction is appropriate, the Court evaluates the evidence in the context of the entire record, but does not consider whether the evidence is credible, controverted, or in conflict with other evidence.

How much evidence in the record is necessary to justify allowing a jury to consider that a Defendant is guilty only of the lesser-included offense?

Anything more than a scintilla of evidence may be sufficient to entitle a Defendant to a lesser charge and when a trial court improperly refuses a properly requested instruction on a lesser-included offense, a finding of harm is automatic because the jury was denied the opportunity to convict of the lesser offense.

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