In Hampton v. State, 109 S.W.3d 437 (Tex. Crim. App. 2003), the State argued submission of a lesser included offense of sexual assault was proper after testimony that a knife, an aggravating element, was never recovered. The State argued "such affirmative evidence regarding the absence of evidence" allowed the jury to infer a knife was not used during the assault. Id. at 440. But there the victim testified that a knife was used. Id. at 441. The court of criminal appeals stated the standard as follows: "In determining whether the second prong has been met, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Id. at 441. The court of criminal appeals rejected the State's argument, noting that the failure to find a knife was not affirmative evidence that no knife was used in the assault, nor was such failure inconsistent or in conflict with direct testimony as to use of a knife. Id.