Defense Lawyers Sound Objection to Lesser Included Offense Causes Appellate Mental Madness
By: Houston Criminal Lawyer John Floyd and Billy Sinclair
The law is rarely ever clearly defined. It is continuously subject to interpretation.
The law is such a fluid creature that finding its true meaning is sometimes very difficult and can strain the bounds of intellectual honesty. This was illustrated on October 20, 2010 by the Texas Court of Criminal Appeals in the case of Oscar Rene Benavidez.
Benavidez was indicted for the offense of aggravated sexual assault. At the end the guilt/innocence phase of the Benavidez’s trial, the State submitted a proposed jury charge to the court which would allow the jury to convict Benavidez of a lesser included offense of aggravated assault, should it decide to acquit him on the sexual assault charge. That is where the convoluted legal dispute in the Benavidez case began: State prosecutors believed that aggravated assault was indeed a lesser included offense to the aggravated sexual assault charge which had been charged in the indictment. Benavidez’s defense counsel, however, strongly objected to the proposed charge, being of the firm opinion that aggravated assault could not be a lesser included offense of aggravated sexual assault.
The defense was correct. A defendant is entitled to notice, by indictment, of the charges the government will seek to prove at trial, so that the defendant can adequately prepare a defense. The indictment does not serve this notice function if it allows the government to argue additional or inconsistent charges at trial.
The lesser included offense doctrine typically allows a jury to convict a defendant of an offense that is less serious than the offense charged in the indictment. In very simple terms, it can be said that the greater offense cannot be committed without also committing the lesser.
However, in order for a lesser included offense to be properly included in the jury charge, the facts must establish proof of the same or less than the facts required to prove the offense charged. This typically means the lesser included offense is missing one of the elements required to prove the primary offense charged in the indictment. Therefore, there is no inconsistency between the offenses.


