CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

April 30, 2011

Aggravated Assault NOT Lesser Included of Aggravated Sexual Assault

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 10:53 am

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.

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February 11, 2010

MICHAEL JACKSONS DOCTOR CHARGED WITH INVOLUNTARY MANSLAUGHTER

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair.

How do you save someone determined to destroy himself?

That question will surely be in the mind of most jurors who will ultimately decide the personal and professional fate of Dr. Conrad Murray, a Houston cardiologist, who was formally charged on February 8, 2010 with involuntary manslaughter in Los Angeles in connection with Michael Jackson’s death. Murray was the superstar’s personal physician last June when he administered the powerful anesthetic propofol and two sedatives to help Jackson, a renowned insomniac, get some sleep. The sleep aids put the pop singer to sleep permanently.

Michael Jackson was an exceedingly complex individual. His life was a tragic chronicle of drug use and abuse. He did things to his own life (and to the lives of others) that would have destroyed most other mere mortals. Despite a host of admirable personal qualities and an immeasurable amount of professional talent, he was a living portrait of self-destruction. He had been warned on several occasions about the dangers of using propofol. It is one of the most powerful and dangerous drugs that can be administered to the human body outside a very tightly-controlled medical environment. Jackson was still willing to risk his life on a regular basis by taking the drug because it helped him sleep when, in actuality, it didn’t help him sleep; it simply rendered him unconscious.

Dr. Conrad Murray was born to a poor single mother nearly 57 years ago in Grenada, a small Caribbean island made famous by former President Ronald Reagan’s military invasion of it in 1983 called Operation Urgent Fury. He lived with his grandparents on the island until he was seven when his mother returned and took him with her to Trinidad where she had gone shortly after the boy’s birth in search of work. Despite being reared in a drug-infested and crime-plagued area of Port of Spain, Trinidad’s capital, young Murray resisted all the temptations of crime and drugs to become well-known as an honest and responsible person in the neighborhood.

Citing the British tabloid, The Daily Mall, the Houston Chronicle reported recently that as a young boy Murray went into a store where he found a woman had left her bag. He took the bag and after he got home, the young boy found it contained $3100. He searched for and found the owner of the bag and returned the money to her, according former neighbor Krishndath Saroop. Murray went on to graduate from high school on the small island after which he worked hard at a number of jobs, including an elementary school teacher, before saving enough money to pay for his education in the United States.

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