Page 38 - TPA Journal May June 2022

determine as a matter of law whether the lesser scintilla of evidence that the lesser-included offense
included offense is truly a lesser-included offense. provides a valid, rational alternative to the greater
Second, there must be some evidence in the record offense. Article 37.08 of the Code of Criminal
establishing that, if the defendant is guilty, he is Procedure provides that “in a prosecution for an
guilty of only the lesser offense. In other words, offense with lesser included offenses, the jury may
the evidence must establish that the lesser-included find the defendant not guilty of the greater offense,
offense provides the jury with “a valid, rational but guilty of any lesser included offense.” Article
alternative to the charged offense.” 37.09 defines a lesser-included offense as an
offense established by proof of the same or less
than all the facts required to establish the
The burden of producing evidence to satisfy the commission of the charged offense. The statute
second prong is relatively low. Regardless of the also allows that a lesser-included offense is an
strength or weakness of the evidence, if more than offense that differs from the offense charged only in
a scintilla of evidence, from any source, raises the respect that a less serious injury or risk of injury
the issue that the defendant was guilty only of the to the same person, property, or public interest
lesser offense, then the defendant is entitled to an suffices to establish its commission. Nothing in the
instruction on the lesser offense. We consider all statute requires a lesser-included offense to be a
the evidence admitted at trial, not just the evidence “valid, rational alternative” to the greater offense.
presented by the defendant. But, as this Court has Nevertheless, the State argues that this Court
previously recognized, a defendant’s testimony requires that facts raising a lesser-included offense
alone may be sufficient to raise the issue. When be a “valid, rational alternative” to a
determining whether a defendant is entitled to an greater offense before a defendant is entitled to a
instruction on a lesser-included offense, we view jury instruction on that lesser-included offense.
the facts in the light most favorable toward This “valid, rational alternative” test is a
submitting the instruction, not in a light most court-made doctrine we adopted to bring our
favorable to the verdict. In making this jurisprudence in line with the federal standard for
determination, we evaluate the evidence in the determining whether a defendant is entitled to
context of the entire record, but do not consider a jury instruction on a lesser-included offense. The
whether the evidence is credible, controverted, or test determines whether there is evidence at trial
in conflict with other evidence. that casts reasonable doubt upon the greater
offense, not whether the evidence is legally
As to the first prong of the test for determining insufficient to establish it. This second prong of
whether Appellantwas entitled to an instruction on the test is distinct from the jury’s ultimate
a lesser-included offense, no one in this case determination as to whether the defendant is guilty
disputes that misdemeanor assault is a lesser- only of the lesser offense and not the greater
included offense of aggravated assault. As for the offense.
second prong, the court of appeals correctly held Most importantly, when determining whether there
that Appellant’s testimony provided more than a is some evidence in the record that constitutes a
scintilla of evidence that raised the lesser offense “valid, rational alternative” to a greater offense, we
of assault by causing bodily injury. However, as the view the evidence in the record in a light most
State notes, this conclusion does not end our favorable to giving the instruction, not in a light
analysis. Anything more than a scintilla of evidence most favorable to the verdict. The “valid, rational
can raise a lesser included offense, but to entitle a alternative” test merely enhances the second prong
defendant to a jury instruction, there must be a of the test for determining whether a defendant is

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