What’s the law on Lesser Included Offenses in Texas? Or Rockwall Agg Assault Conviction Upheld by the Dallas Court of Appeals

Lesser included offenses can be an important part of a criminal jury trial. Some offenses, like misdemeanor DWI, don’t have any lesser included offenses. Others, like Aggravated Assault, are full of lesser included opportunities.

What is a lesser included offense? Let’s take an aggravated assault case. The difference between an aggravated assault (felony) and a misdemeanor assault is “serious bodily injury”. Aggravated assaults require that someone suffer a serious bodily injury, where misdemeanor assault just require some injury. So if you are on trial for aggravated assault, and you want to argue over whether the injury was “serious”, then you can ask that the jury be allowed to consider the lesser included offense of assault. That means, instead of just deciding if the defendant is guilty or not guilty of aggravated assault, the jury could consider finding the defendant guilty of only a misdemeanor assault. Confused? That’s ok, this isn’t an exciting topic for the lay person.

This being Texas, we do all sorts of mental gymnastics to uphold convictions on appeal. So if you want to appeal a conviction because the trial judge would not allow a lesser included instruction, here is how the court will decide that issue (spoiler alert, they will rule against the Defendant, but this is how they will rule against the Defendant).

So what’s the law on getting a lesser included jury charge at trial?

This is from our case of the day-


On Appeal from the 439th Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 2-11-436

To determine whether the lesser-included offense instruction requested by appellant should have been given, we follow a two-step analysis. Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (plurality op. on reh’g). The first step asks whether the lesser-included offense is included within the proof necessary to establish the offense charged. McKithan v. State, 324 S.W.3d 582, 587 (Tex. Crim. App. 2010). We compare the statutory elements and any descriptive averments in the indictment for the greater offense with the statutory elements of the lesser-included offense. Ex parte Amador, 326 S.W.3d 202, 206 n.5 (Tex. Crim. App. 2010); Ex parte Watson, 306 S.W.3d 259, 263 (Tex. Crim. App. 2009); Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007); see also TEX. CODE CRIM. PROC. ANN. art. 37.09. This step is a question of law. Hall, 225 S.W.3d at 535.

The second step requires us to consider whether evidence in the record would permit a jury to rationally find appellant was guilty of only deadly conduct and not aggravated assault. See Guzman v. State, 188 S.W.3d 185, 188–89 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). The evidence must establish the lesser-included offense as “a valid rational alternative to the charged offense.” Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008); see also Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011).

We review all of the evidence presented at trial. Hayward v. State, 158 S.W.3d 476, 478–79 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 673. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser-included offense charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011). In determining whether the evidence raises the requested lesser-included offense, we do not consider the credibility of the evidence or whether it conflicts with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992).

What kind of instruction did Mr. Pogue want?

He wanted the jury to consider a deadly conduct offense, instead of aggravated assault. Deadly conduct is a lesser included offense of aggravated assault.

So the appeals court ruled against Mr. Pogue?

Of course they did, he’s the Defendant. Their reasoning was that there was no evidence showing that Mr. Pogue did not cause the bodily injury and the difference between agg assault and deadly conduct is causation of injuries. To win as a defendant on appeal in Texas you have to be a corporation.

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