Texas Courts of Appeals
No. 03-18-00268-CR 12/28/18
Is theft of a firearm a lesser-included offense of burglary of a habitation when the indictment does not allege the value or nature of the stolen item?
No. The value or nature of the stolen property is an essential element of the offense of theft because it determines the punishment range of the offense. An indictment that does not describe the stolen property or allege its value is defective as to the charge of theft, even if it is sufficient as to the offense of burglary. Read opinion.
Some people will read this summary and think, “This can’t be right.” The opinion gives a thorough treatment of the issue, however, and the result is consistent with the Court of Criminal Appeals’s restructuring of lesser-included offense law in Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007). Prosecutors may request lesser-included offenses be submitted to the jury when trials don’t go as planned, but they must be certain what they request are “legal” lesser-included offenses. It is a fair bet that there are cases in the books, pre-Hall, that supported this request, but Hall was a dramatic change in the law that requires re-examination of older authorities supporting a submission. Pre-Hall cases holding that an offense was not a lesser-included offense are likely still sound law.