Lesser Included Offense Texas Jury Instruction

Determining the propriety of a lesser-included-offense instruction requires a two-step analysis. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Forest, 989 S.W.2d at 367. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense. Id. If a defendant presents no evidence and no other evidence raises the issue of a lesser offense, a charge is not required. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985); Garcia v. State, 17 S.W.3d 1, 5-6 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). In reviewing a court's decision not to give a charge on a lesser offense, we examine all of the evidence presented at trial, regardless of whether it is credible, controverted, or conflicting. Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984); Garcia, 17 S.W.3d at 6. However, the evidence may not be "plucked out of the record and examined in a vacuum." Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986); Garcia, 17 S.W.3d at 6. An assault becomes an aggravated assault if the actor "exhibits a deadly weapon." Id. 22.02(a)(2). Consequently, a lesser-included-offense instruction was required if the record contains some evidence that Davis did not exhibit a deadly weapon. Forest, 989 S.W.2d at 367.