Robbery vs. Aggravated Robbery in Texas

Many crimes in Texas have what are known as “lesser-included offenses.” This means that based on the available evidence, a jury could find the defendant guilty of a lower-degree of crime than the one charged by the state. For example, the crime of “robbery” is considered a lesser-included offense to “aggravated robbery” under the Texas Penal Code.

Houston Court Denies Defense Instruction on Lesser-Included Offense

Criminal defendants often ask trial judges to instruct the jury on the availability of a lesser-included offense. But the judge is only required to give the instruction if there is “some evidence” that would allow the jury to find the defendant is only guilty of the lower offense. In some cases, this means the defendant may have to prove a negative–i.e., that there was an absence of some element of the higher offense.

Let’s take the robbery versus aggravated robbery example. In a recent decision from the Texas First District Court of Appeals here in Houston, Campbell v. State, a trial judge declined to instruct the jury on the lesser-included offense of robbery. The jury proceeded to convict the defendant of aggravated robbery and sentenced him to 10 years in prison.

The use of a deadly weapon is one factor that can distinguish robbery from aggravated robbery under the Texas Penal Code. In other words, if you display a gun while committing a robbery, that makes it aggravated robbery, even if you never actually use the weapon. Of course, the prosecution still needs to present some evidence a weapon was displayed.

In this particular case, prosecutors alleged the defendant approached the teller at a bank branch, placed a bag and a handwritten note on the counter demanding money, and “set a black handgun on top of the note.” Police never actually recovered a handgun from the defendant, however, and the only evidence a gun was used came from the testimony of the bank teller. Indeed, at least two other witnesses identified the defendant as the robber, but neither saw him display or brandish a gun.

Based on this, the defendant requested an instruction on the lesser-included offense of robbery, which the judge denied. The First District held there was nothing improper about the judge’s decision. The teller’s testimony provided “some affirmative evidence that a deadly weapon was used during the bank robbery.” The defendant, therefore, needed to provide “affirmative evidence” of his own “showing that a deadly weapon was not used.” The mere fact the other witnesses did not see a gun was insufficient, as their testimony was that they never “saw” a weapon, as opposed to conclusively saying the defendant had no weapon.

Speak with Houston Criminal Defense Lawyer Tad Nelson Today

While the distinction between robbery and aggravated robbery may not sound like much in theory, in reality, it can have a significant impact on the amount of time a defendant faces in prison. And if you are the one on trial, you want to make sure the prosecution and the courts respect your rights and do not try to unfairly overcharge you. An experienced criminal defense attorney can help. Contact the Law Offices of Tad Nelson & Associates in Houston, Galveston or League City today if you need representation in any criminal matter. Call (281) 280-0100.