Historically, courts have required that the evidence establish a lesser-included offense as a “valid rational alternative” to the charged offense before instructing the jury to consider the lesser offense. But two recent decisions of the Court of Criminal Appeals—Bullock v. State and Roy v. State—test the bounds of what could be considered “rational.” In each case, the Court flexed its creative muscles in reaching the conclusion that the trial court committed reversible error by failing to instruct the jury on a lesser-included offense.
In light of those decisions, prosecutors should proceed with caution when arguing against the inclusion of such an instruction in the jury charge. This article is intended to help prosecutors avoid a fate similar to that in Bullock and Roy by examining when we should fight and when we should concede to the defendant’s request for a lesser-included instruction.
In layman’s terms, a lesser-included offense is exactly what it sounds like: an offense that is included within the greater offense and imposes a lower range of punishment than the greater offense. A two-step test applies to determine whether a defendant is entitled to an instruction on a lesser-included offense:
1) whether the requested offense is actually a lesser-included offense of the charged offense; and, if so,
2) whether the jury could rationally find that the defendant is guilty only of the lesser-included offense.
Step One: Is it a lesser?
Under the first step of the test, an offense is a lesser-included offense if it is within the proof necessary to establish the offense charged. Luckily, because this determination is based on the pleadings and the statutory language rather than the evidence produced at trial, a prosecutor can figure out the answer before trial, when he has time to consult other sources. A prosecutor will also have time to decipher the concept of “functional equivalence,” which somewhat complicates the first-step analysis.
Article 37.09 of the Texas Code of Criminal Procedure provides that an offense is automatically within the proof necessary to establish the offense charged if the lesser offense differs from the charged offense only:
1) in the respect that a less serious injury or risk of injury to the same person, property, or public interest is required; hence, assault by causing bodily injury is automatically a lesser-included offense of aggravated assault by inflicting serious bodily injury because of the less serious injury required;
2) in the respect that a less culpable mental state is required, which is why criminally negligent homicide is automatically a lesser-included of-fense of involuntary manslaughter based on the less culpable mental state required (negligence v. recklessness) in causing the same result (the death of another); or
3) because the purported lesser-included offense consists of an attempt to commit the offense charged or an otherwise included offense, as in the case of attempted theft, which is automatically a lesser-included offense of theft.
If the purported lesser-included offense does not fall within one of those three scenarios, the trial court must engage in the more daunting task of comparing the elements of the greater offense and any descriptive facts charged in the indictment with the statutory elements of the lesser offense. A basic approach is to ask whether it is possible to prove every element of the greater offense as charged in the indictment without proving one or more of the elements of the lesser offense. If the answer is yes, the lesser offense is not a true lesser-included offense.
To illustrate, one can prove every element of DWI—that a person operated a motor vehicle in a public place while intoxicated—without establishing that the defendant drove the vehicle in willful or wanton disregard for the safety of others, as required for reckless driving. Thus, despite all those pleas you may have seen to the contrary, reckless driving is not a lesser-included offense of DWI.
As previously warned, the concept of functional equivalence complicates the element-comparison analysis. Under this component, “the specific elements of the lesser offense do not have to be pleaded if they can be deduced from the facts alleged in the indictment.” To make this determination, courts must “examine the elements of the lesser offense and decide whether they are functionally the same or less than those required to prove the charged offense.” For example, because a habitation inherently provides notice that entry is forbidden, an indictment’s mere allegation of a “habitation” in a burglary of a habitation case is functionally equivalent to an allegation of notice that entry into the habitation was forbidden for purposes of determining whether criminal trespass is a lesser-included offense of burglary of a habitation. Thus, the mere difference in terminology between the elements does not necessarily remove an offense from consideration as a lesser-included offense of the greater offense.
Even more confusing, criminal trespass is still not a lesser-included offense of burglary of a habitation because the “entry” element of criminal trespass—the intrusion of the entire body—requires proof of greater intrusion than burglary, which can be shown with only a partial entry of the body or simply the entry of a physical object connected to the body. Therefore, the “entry” elements are not functional equivalents under a strict reading of the statutes.
Notably, if the prosecution requests an instruction on a lesser-included offense, the analysis stops here. The State need only prove that the lesser offense is, in fact, included within the greater offense. But this article focuses on the second step of the lesser-included instruction test, which is triggered by the defendant’s request and which, in practice, we must perform at a moment’s notice.
Step Two: Does the evidence presented at trial require an instruction?
Under the second step of the lesser-included instruction test, the trial court must determine whether there is some evidence—i.e., more than a scintilla—from which a rational jury could acquit the defendant of the greater offense while still convicting him of the lesser-offense. This step requires examination of all of the evidence admitted at trial, regardless of which side it came from, to determine whether the lesser-included offense is “a valid, rational alternative to the charged offense.” While this threshold 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 offense before an instruction is warranted.
Be careful. Prosecutors and trial courts run into problems when they try to measure what would be “a valid, rational alternative” in the eyes of a jury. The analysis does not allow for credibility determinations or assigning weight to conflicting testimony, regardless of how unbelievable the conflicting testimony may sound. The better question is whether there is any evidence whatsoever, from any source, which rebuts or negates one element of the greater offense while leaving intact the elements of the lesser offense. This conundrum led to the State’s downfall both in Bullock and in Roy.
Bullock v. State: The “mix and match” approach
Henry Richard Bullock, Jr. was charged with theft of a delivery truck. According to the State’s evidence, a delivery man was in his truck’s cargo space when he heard the engine start and rev several times. The delivery man went to the cab and saw Bullock with his hands on the steering wheel and his foot pushing the pedals. When confronted, Bullock ran away.
Bullock admitted at trial that he was inside the cab of the truck, but he denied having any intent to steal the truck, pressing on the pedals, turning on the engine, or attempting to start or move the truck. He also acknowledged that he intended to commit theft while inside the truck, but he claimed that he wanted to steal only some small items inside the truck, not the truck itself. He was found guilty of theft.
Bullock appealed his theft conviction, alleging he was entitled to a lesser-included instruction on attempted theft. Bullock’s indictment for theft alleged that he unlawfully appropriated the truck with the intent to deprive its owner of the property. Unlawful appropriation occurs when a person exercises dominion or control over property without the owner’s consent. Criminal attempt occurs when a person, with specific intent to commit an offense, commits an act amounting to more than mere preparation that tends to but fails to effect the commission of the intended offense.
Bullock easily satisfied the first step of the lesser-included test because, under Article 37.09(4), attempted theft is a lesser-included offense of theft. The real issue was whether there was some evidence from which a rational trier of fact could have found Bullock committed attempted theft but not theft—i.e., whether attempted theft was “a valid, rational alternative” to theft.
The Fourteenth Court of Appeals determined that the record contained no evidence to support a conviction only for attempted theft because Bullock wholly denied having any intent to steal the truck. In other words, because the offense of attempted theft requires the specific intent to commit the offense of theft, Bullock’s denial of his intent to steal the truck negated one of the elements of the lesser offense. But the Court of Criminal Appeals disagreed, applying a “mix and match” approach to evaluating the evidence on the record in determining Bullock’s entitlement to his requested instruction.
The Court noted that the jury may disbelieve or believe any part of a witness’s testimony, including the defendant’s. Thus, it is possible to present more than a scintilla of evidence as to each element of a lesser-included offense by extracting only portions of a certain witness’s testimony. Put another way, if any combination of the evidence will entitle a defendant to a lesser-included offense instruction, the defendant should get the instruction.
Applying this mix-and-match approach, the Court concluded that the jury could have determined Bullock was guilty only of attempted theft if:
1) it believed he committed an act amounting to more than mere preparation to commit theft but failed to exercise control over the truck, based on his testimony that he did not press the gas or brake pedals or try to start or move the truck;
2) it disbelieved the testimony that he never intended to steal the truck; and
3) it inferred that Bullock had the specific intent to commit theft of the truck based on the totality of the record.
Regardless of how irrational this combination of facts may sound, the Court ultimately held that the jury could have rationally reached this exact conclusion.
To explain Bullock’s intent to steal the truck, the Court distinguished this case from one in which a defendant takes the stand and wholly denies committing an offense, which is insufficient to raise the issue of a lesser-included offense. The Court reasoned that Bullock’s admitted criminal conduct of entering the cab without permission and with the intent to steal some items, coupled with other evidence in the record supporting an inference of a specific intent to steal the truck, provided some evidence to rationally support a finding that Bullock intended to steal the truck itself, despite his denial of such.
It may seem obvious that Bullock should have received a lesser-included instruction for attempted theft because he never actually took the truck, but a long line of cases establishes that evidence is sufficient to establish theft when a defendant is behind the wheel of a vehicle without permission. Incidentally, the lower court relied on this counterpoint in concluding that there was no evidence from which a fact-finder could have rationally determined that Bullock was guilty only of attempted theft because, even if the jury believed Bullock’s version of the events that all he did was sit at the wheel of the truck without permission, those facts were sufficient to establish theft under these circumstances. The Court of Criminal Appeals, however, distinguished several decisions in which a person’s sitting inside the cab of a vehicle without permission constituted sufficient evidence to support a conviction for theft of the vehicle by reasoning that Bullock’s denial of ever touching the pedals, starting the ignition, or moving the truck was enough to allow a juror to rationally conclude that Bullock never exercised dominion or control over the truck.
Accordingly, by mixing a portion of Bullock’s testimony with a portion of the State’s evidence—notwithstanding Bullock’s express denial of that portion of the State’s evidence—the Court concocted a scenario in which Bullock could be convicted of attempted theft and acquitted of theft. This apparent departure from precedent serves as a troublesome omen for future cases. Indeed, Judge David Newell questioned the Court’s analysis in his dissenting opinion to the Court’s denial of the State’s motion for rehearing:
Here, the Court has plucked one sliver of a defendant’s testimony out of the record and examined it in isolation. According to the Court, [Bullock] was entitled to a jury instruction on attempted theft because the jury could have believed the portion of [Bullock]’s testimony that he did not press the gas or brake pedals on the truck. Even more problematic, this same jury was also supposed to rationally disbelieve the reason [Bullock] himself gave for not pressing the gas or brake pedals on the truck: he was not attempting to steal the truck. While [Bullock] may have testified to alternative facts, they were not a valid, rational alternative to the offense of theft of a vehicle. [Bullock] denied attempting to steal the truck, yet we held that he was entitled to a jury instruction on attempting to steal the truck.
Nevertheless, prosecutors should be mindful of this “mix and match” approach before objecting to the inclusion of a lesser-included instruction after the defendant denies committing the offense.
Alas, some good news: If a prosecutor messes this up, he may be able to salvage the conviction by establishing that the error did not harm the defendant. Although the Court concluded that the trial court erred by denying Bullock’s request for a lesser-included instruction, the Court remanded the case to the court of appeals to conduct a harm analysis.
Roy v. State: The “blacked out” defendant
Two months later, the Court issued another debatable decision in Roy. Kelvin Lee Roy was charged with murder under Penal Code §19.02(b)(2). The State’s evidence showed that Roy was driving with his girlfriend, Taralynn Brown, when he “snapped.” Roy lit a cigarette that had been dipped in PCP, drove erratically, and refused to pull over despite his girlfriend’s screams of terror. Roy told Brown, “Oh, you’re scared? I’m going to kill both of us.” Roy then accelerated toward train tracks where two vehicles were waiting at a light, flew through the air, and crashed into one of the vehicles, ejecting Alexandria Bertrand from it and causing her death.
Roy testified at trial that he never “snapped” or threatened to harm Brown, and he never intended to harm Brown or kill Bertrand. Roy claimed that he “blacked out” while driving and had no memory of the crash, but he admitted that he drank alcohol, smoked marijuana, and smoked a “dip cigarette” while driving. The combination of these substances caused Roy to feel dizzy and faint before he blacked out. Roy conceded that he chose to drive that night despite knowing the risks associated with drinking alcohol, smoking marijuana, and smoking dip cigarettes while driving. He was convicted of murder.
Roy appealed his conviction, alleging he was entitled to a lesser-included instruction on manslaughter. Roy’s indictment for murder alleged that he intended to cause serious bodily injury to Brown and committed an act clearly dangerous to human life—driving into another car—which caused Bertrand’s death. A person commits manslaughter if he recklessly causes the death of an individual. A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur.
The majority opinion of the Court of Criminal Appeals acknowledged its previous holding that manslaughter is a lesser-included offense of murder and moved directly to the second part of the lesser-included test. (As a reminder, Code of Criminal Procedure Art. 37.09(3) provides that a lesser-included must differ only in the respect that a less culpable mental state suffices to establish its commission). In its previous decision, the Court concluded that the elements of murder and manslaughter are functionally the same except as to the mental states of intent versus recklessness. Having established the first prong of the lesser-included test, Roy had to show that he presented more than a scintilla of evidence raising manslaughter and rebutting or negating murder to be entitled to the instruction under the facts of this case.
The Court pointed to Roy’s testimony that he never intended to hurt his girlfriend and quickly concluded that Roy had negated an element of murder as charged in the indictment. Nevertheless, the evidence still had to show that Roy presented affirmative evidence to raise manslaughter, i.e., that he recklessly caused the death of Bertrand, specifically that he was aware of, but consciously disregarded, a substantial and unjustifiable risk that the result—a death—would occur.
The Court began its analysis by distinguishing its previous decision in Schroeder v. State. In that case, Schroeder attempted to support his request for an instruction on manslaughter by claiming that his murder victim pointed a gun at him, he wrestled with the victim over the gun, but Schroeder blacked out as they fell to the ground and did not remember the shooting. The Court concluded in that case that, although wrestling with a gun may be a substantial and unjustifiable risk, Schroeder was not entitled to a manslaughter instruction because there was no evidence that he was aware of, but consciously disregarded, that risk.
The Court in Roy clarified that Schroeder did not establish an absolute bar from receiving a manslaughter instruction to any defendant who cannot remember causing a death. Instead, it is enough that the defendant is aware of and consciously disregards the risk of a particular result of his conduct—in this context, a death—so long as the same reckless conduct causes the necessary result. As applied to the facts of Roy, Roy presented evidence outside his inability to remember the crash that he was aware of the risk of driving while intoxicated, and he disregarded the risk of causing a death by doing so. Thus, because there was some evidence that Roy did not intend to harm his girlfriend and that Roy’s reckless conduct of driving while intoxicated was part of the same conduct that caused Bertrand’s death, Roy was entitled to the manslaughter instruction. The Court, in turn, reversed and remanded the case to the court of appeals to conduct a harm analysis.
This conclusion seems precarious because the Court acknowledged that a defendant must present affirmative evidence that he was specifically aware of but consciously disregarded the risk of death, but Roy’s testimony appeared to more generally acknowledge his awareness of risks associated with driving while intoxicated. Regardless, the takeaway from this case should be that a defendant’s claim that he does not remember the offense does not necessarily preclude him from receiving a lesser-included instruction, and prosecutors should be careful in urging the trial court to deny an instruction under these circumstances.
Defense attorneys frequently ask for a jury instruction on a lesser-included offense, regardless of whether they are entitled to one, in an effort to invite the jury to split the proverbial baby. And trial courts are reluctant to exclude defense-requested instructions because jury-charge error is one of the easiest ways to get reversed by an appellate court. Bullock and Roy exacerbate this fear, and prosecutors should be aware of their holdings.
Ultimately, Bullock warns us that the analysis of whether the evidence at trial supports the inclusion of a lesser-included offense instruction requires piecemeal evaluation of each element of the greater and lesser offenses, and whether to believe a witness’s testimony, in whole or in part, is wholly within the province of the jury. Roy teaches us that a defendant’s denial of having any memory of committing the offense does not automatically bar the inclusion of a lesser-included offense instruction, and the Court of Criminal Appeals is willing to overlook a lack of specificity in the defendant’s testimony when evaluating whether the trial court should have instructed the jury on a lesser-included offense.
1 Trial courts have no obligation to instruct the jury, sua sponte, on a lesser-included offense, and defendants must request the instruction before they can complain about its absence on appeal. See Bowen v. State, 374 S.W.3d 427, 430 (Tex. Crim. App. 2012). As such, a prosecutor need not volunteer the issue unless the obligation to include the lesser-included instruction is so evident that he or she is worried about a potential claim of ineffective assistance of counsel.
2 Sweed v. State, 351 S.W.3d 63, 67-68 (Tex. Crim. App. 2011).
3 Id. at 68.
4 See Rice v. State, 333 S.W.3d 140, 144-46 (Tex. Crim. App. 2011) (analyzing whether the elements of reckless driving are included within the facts required to establish aggravated assault with a deadly weapon).
5 See id
6 Compare Tex Penal Code §49.04(a), with Tex. Transp. Code §545.401(a); see also Wagner v. State, 720 S.W.2d 827, 830 (Tex. App.—Texarkana 1986, pet. ref’d) (“It is obvious that proof of the elements of reckless driving are not necessary to establish the offense of driving while intoxicated”).
7 See id.
8 Evans v. State, 299 S.W.3d 138, 143 (Tex. Crim. App. 2009).
9 McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010), quoting Farrakhan v. State, 247 S.W.3d 720, 722-23 (Tex. Crim. App. 2008) (internal quotations omitted).
10 See Salazar v. State, 284 S.W.3d 874, 875, 878 (Tex. Crim. App. 2009) (holding that the lower court erred when it held that criminal trespass was not a lesser-included offense of burglary of a habitation because the element that notice that entry was forbidden was not included in the indictment).
11 See id.
12 Compare Tex. Penal Code §30.05(b)(1), with §30.02(b)(1)–(2).
13 It is possible to alleviate these differences through the pleadings because, as previously stated, the first step of the lesser-included analysis requires consideration of all elements plus any descriptive facts that are alleged in the charging instrument. Therefore, if the intrusion of the entire body is alleged as the specific method of entry into a habitation, criminal trespass could be available as a lesser-included offense to burglary of a habitation.
14 See Grey v. State, 298 S.W.3d 644, 649-50 (Tex. Crim. App. 2009) (holding that the requirement that there be evidence showing that the defendant is guilty only of the lesser-included offense applies only to a defense request for a lesser included offense; the State may request a lesser-included offense instruction without such a precondition).
15 Rice, 333 S.W.3d at 145.
16 Id., quoting Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007
17 Sweed, 351 S.W.3d at 68.
18 See Tex. Penal Code §31.03(a), (e)(5).
19 Bullock v. State, 509 S.W.3d 921, 923 (Tex. Crim. App. 2016).
20 See Tex. Penal Code §§31.01(4)(B), 31.03(b).
21 Tex. Penal Code §15.01(a).
22 Bullock v. State, 479 S.W.3d 422, 430 (Tex. App.—Houston [14th Dist.] 2016) (substitute op., orig. op. withdrawn).
23 Bullock, 509 S.W.3d at 926.
27 Bullock, 479 S.W.3d at 430.
28 Bullock, 509 S.W.3d at 927-28.
29 Id. at 932 (Newell, J., dissenting).
30 Id. at 929.
31 Roy v. State, 509 S.W.3d 315, 316 (Tex. Crim. App. 2017).
32 Tex. Penal Code §19.04(a).
33 Tex. Penal Code §6.03(c).
34 Roy, 509 S.W.3d at 317.
35 Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012).
36 Remember, “more than a scintilla” is a nominal threshold; the relevant analysis does not care that the defendant lacks credibility and is just trying to save himself.
37 Roy, 509 S.W.3d at 318; see Schroeder v. State, 123 S.W.3d 398, 399 (Tex. Crim. App. 2003).
38 Schroeder, 123 S.W.3d at 399.
39 Id. at 400.
40 Roy, 509 S.W.3d at 318.
41 Id. at 320.
42 For the proverb itself, see 1 Kings 3:16–27 (NIV), in which King Solomon keenly identifies the true mother of a baby after suggesting the baby be cut in half.