Jacob v. State

• Decision Date: 01 February 1995
• Docket Number: No. 1332-93,1332-93
• Citation: 892 S.W.2d 905
• Parties: Irma Irene JACOB, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 905

892 S.W.2d 905

Irma Irene JACOB, Appellant, v. The STATE of Texas, Appellee.

No. 1332-93.

Court of Criminal Appeals of Texas En Banc.

Feb. 1, 1995.

Roy Beene, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., J. Harvey Hudson, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

In this opinion we review the Court of Appeals' determination that aggravated assault is not a lesser included offense of burglary of a habitation with intent to commit aggravated assault. Appellant was indicted for burglary of a habitation with intent to commit aggravated assault (count one) and burglary of a habitation with intent to commit murder (count two). After a bench trial, the trial court found her guilty of aggravated assault. The court found the enhancement allegation to be true and sentenced appellant to confinement for five years. The Court of Appeals reversed the conviction, holding that the "intent to commit a felony" language does not establish the felony as a required element of the greater offense of burglary so as to make that felony a lesser included offense. Jacob v. State, 864 S.W.2d 741, 744 (Tex.App.--Houston [14th] 1994). We granted the State's petition for discretionary review to address this holding.

Appellant and a co-defendant knocked on the complainant's front door. When the complainant opened the door they pulled her outside, grabbed her by the hair and dragged her downstairs to the pool area. They hit her head against the concrete, kicked and beat her severely.

Appellant was indicted for burglary under V.T.C.A. Penal Code, Section 30.02(a)(1)--entry with intent to commit a felony. ¹ The Court of Appeals stated that under Article 37.09(1), V.A.C.C.P., facts required to prove the burglary did not include facts establishing the aggravated assault; thus aggravated assault was not a lesser included offense of burglary under Section 30.02(a)(1). Jacob, 864 S.W.2d at 743. The court relied upon Garcia v. State, 571 S.W.2d 896 (Tex.Cr.App.1978); Houston v. State, 556 S.W.2d 345 (Tex.Cr.App.1977); and several courts of appeals cases.

The starting point in any analysis of lesser included offenses is Article 37.09. In the instant case the applicable portion is Article 37.09(1), which defines a lesser included offense as one "established by proof of the same or less than all the facts required to establish the commission of the offense charged." In Day v. State, 532 S.W.2d 302 (Tex.Cr.App.1975) (opinion on rehearing), this Court explained that Article 37.09 was constitutional because each definition in Article 37.09 is stated with reference to the "offense charged" and does not enlarge upon the offense charged, but either restricts or reduces culpability as compared to the offense charged. Day, 532 S.W.2d at 315. This satisfies the requirements of due process and notice because the lesser included offense must necessarily be included within the greater. The determination of whether an offense is a lesser included offense must be done on a case-by-case basis because Article 37.09 defines lesser included offenses "in terms of the offense charged and ... in terms of the facts of the case." Id. at 316.

This Court has repeatedly explained that Day's interpretation of Article 37.09(1) means a lesser included offense is determined by looking at (1) the elements of the offense actually charged, (2) the statutory elements of the offense sought as a lesser included offense, and (3) the proof presented at trial to show the elements of the charged offense. See Cunningham v. State, 726 S.W.2d 151 (Tex.Cr.App.1987); Bell v. State, 693 S.W.2d 434 (Tex.Cr.App.1985); Broussard v. State, 642 S.W.2d 171 (Tex.Cr.App.1982); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.1976). This does not mean that evidence presented at trial, viewed by itself, determines a lesser included offense. Bell, 693 S.W.2d at 438; Sanders v. State, 664 S.W.2d 705, 709 (Tex.Cr.App.1982) (Clinton, J., concurring).

The State's disagreement with the Court of Appeals in the instant case essentially turns on what is meant by "facts required" in Article 37.09(1). The State argues this focuses on the evidence the State presented to prove the charged offense. But such interpretation negates the language of Article 37.09(1) by changing "facts required" into "facts presented." "Facts required" means the evidence legally required to prove the elements. For instance, the State may prove more than is legally required by also proving a different offense than the charged offense just because of the facts in the particular case. The constitutional validity of Article 37.09 rests in part on its reference to the offense charged and to the restricted or reduced culpability of the lesser included offense as compared to the offense charged. Day, 532 S.W.2d at 315. Otherwise a defendant could be convicted of offenses not subsumed in the charged offense but shown by the evidence presented. That is why a lesser included offense is defined with reference to the facts "required" to establish the charged offense rather than to facts presented at trial.

As we explained in Day, this means that first a statutory and then a factual analysis must be done in light of the charged offense. Next, the elements of the offense claimed to be a lesser included offense must be examined to see if the elements are functionally the same or less than those required to prove the charged offense. Then the proof or facts actually presented to prove the elements of the charged offense must be examined to see if that proof also shows the lesser included offense. Broussard, 642 S.W.2d 171; Hazel, 534 S.W.2d at 700. See also Bayona v. State, 544 S.W.2d 155, 157-158 (Tex.Cr.App.1976) (Odom, J., concurring).

For example, in Bartholomew v. State, 871 S.W.2d 210 (Tex.Cr.App.1994), the indictment charged reckless driving and alleged the acts showing recklessness as racing and speeding. After doing a statutory comparison of the three offenses, we held that although racing and speeding are not necessarily lesser included offenses of reckless driving, in this case they were because the indictment charging the offense of reckless driving specifically alleged racing and speeding and the proof at trial showed racing and speeding. If the State had alleged other acts to prove the element of recklessness, evidence of racing and speeding presented at trial would not entitle the defendant to a charge on racing and speeding as lesser included offenses. For instance, if the indictment alleged recklessness by driving in circles, "doing donuts" in the street, and the evidence presented at trial showed the defendant did that as well as raced and sped, speeding and racing would not be facts "required to establish" the charged offense of reckless driving because the charged offense alleged recklessness by "doing donuts." Since racing and speeding would not be "required to establish" the charged offense, they would not be lesser included offenses of the charged offense.

In the instant case the indictment alleged in pertinent part that appellant did:

"... with intent to commit AGGRAVATED ASSAULT, enter a habitation owned by [the complainant], a person having a greater right to possession of the habitation than the Defendant ... without the effective consent of the Complainant, namely without any consent of any kind."

Under ...