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What is a Lesser Included Offense, and Why is it Important?

Before we get into the particular aspects of a lesser included offense, let’s look at an example to help illustrate why this topic is important. Let’s say that you have been charged with Assault, and the State has alleged that you impeded the victim’s breathing, or choked him or her, during the alleged assault. This would be a 3rd Degree Felony in the State of Texas, which means that you’d facing up to 10 years in prison. Let’s further assume that you did not, in fact, choke the victim. Therefore, you plead “not guilty” and set the case for a jury trial. The trial date comes, the State presents their evidence against you, you call your witnesses to testify to your version of the events, and the jury goes out to deliberate your fate. A few hours pass, and the jury comes back into the courtroom with their verdict ready. The verdict’s handed to the judge and, as you take a deep breath, the verdict is read aloud…”not guilty.” But, just as you start jumping for joy, you hear the Judge utter something along the lines of “on the lesser included offense of Assault, the Court finds the defendant guilty.” Yeah, that would be you! And, before you know what’s even going on, the bailiff slaps the cuffs on you, and you’re off to the county jail for the next 365 days.

What is a Lesser Included Offense in Collin County, Texas?

The Texas Code of Criminal Procedure says that an offense is a lesser included offense if:

  • it is established by proof of the same or less than all of the facts required to establish the commission of the offense charged;
  • it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
  • it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
  • it consists of an attempt to commit the offense charged or an otherwise included offense.

Now, I realize that all of that may just seem like a bunch of legal mumbo jumbo; and, it is. But, basically, what all of that says is that a lesser included offense is just a smaller version of a crime that is contained under a more serious version of the same type of crime. So, getting back to the example above, you could still be found guilty of the misdemeanor version of assault even though you were found not guilty of the felony version of assault. This is because, after being presented with all of the evidence, the jury might not believe that there is enough proof that you choked the victim to find you guilty of the felony version of assault. But, they could still decide that there is enough proof that you knowingly caused bodily injury to the victim to find you guilty of the misdemeanor version of assault.

Why is it Important to be Aware of Potential Lesser Included Offenses in Texas?

The reason I chose to write on this topic is because it can be pretty tricky. If you are charged with a crime, the State of Texas isn’t required to separately charge you with any lesser included offenses that they might decide to go after you for. All that’s really required for you to be found guilty of a lesser included offense is for the State to offer any amount of evidence at the trial of the more serious offense that would support a valid and rationale finding of guilt on the lesser included one. This is why it’s essential to consult with an experienced criminal defense attorney before choosing whether to accept a plea bargain or request a trial. Just because you may be found not guilty of the crime with which you have been charged, doesn’t always mean that you will ultimately be found not guilty of some other crime. Please feel free to contact me at (972) 372-4054 if you have questions or concerns involving lesser included offenses in Collin County, Texas or surrounding areas so that I can help you!

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