When Is a Misdemeanor a Lesser Included Offense?

Texas prosecutors often charge misdemeanor crimes as “lesser included offenses” to felony counts. This commonly occurs in assault cases. Under Section 22.01 of the Texas Penal Code, assault is normally treated as a Class A misdemeanor. But if the assault involves a family member and the defendant “intentionally, knowingly, or recklessly” impedes the victim’s “normal breathing” by choking them, the crime becomes a felony.

With a lesser included offense, the jury basically has the option of finding the defendant guilty of misdemeanor assault if the prosecution fails to prove the additional elements required for the felony. For example, in a recent case from El Paso, a jury found the defendant guilty of the lesser included offense of misdemeanor assault while acquitting her on the felony charge. The defendant was accused of pinning her husband up against the wall and choking him. The defendant conceded the pinning but not the choking.

As the appeals court explained in a subsequent decision affirming the misdemeanor conviction, there was sufficient evidence to support a finding of assault, notably photographs of bruises to the husband’s neck. This demonstrates a “bodily injury,” which is a required element of assault. But the jury “may have had reservations as to whether the injury impeded [the husband’s] breathing, which was a predicate to the felony charge.”

Judges Do Not Have to Instruct on Lesser Included Offenses

One thing to keep in mind is that neither the prosecution nor the trial judge is required to give the jury the option of a lesser included offense. In another recent case, this one from Waco, a defendant convicted of felony assault argued there should have been a lesser included offense for misdemeanor assault. The appeals court disagreed.

As the court explained, there is a two-step process required by the Texas Court of Criminal Appeals when deciding whether to instruct the jury on a lesser included offense. The first step is to determine whether such an offense exists. That was not in question here. So the court turned to the second step: determining “whether there was sufficient evidence at trial to have required the court to submit to the jury the issue of the lesser included offense.”

Here is where this defendant’s claim failed. As with the case discussed above, the critical issue here was whether the defendant choked the alleged victim. At trial, the accuser testified the defendant “cut my air off.” A police officer also testified the accuser’s injuries “were consistent with strangulation.” Based on this, the appeals court said there was no way a “rational jury” could find the defendant guilty of misdemeanor assault but not felony assault. Assuming the evidence was credible, it could only support the felony conviction.

Plea Bargaining a Felony Down to a Misdemeanor

Lesser included offenses often help an accused person avoid the permanent taint of a felony conviction. When prosecutors know they have a weak felony case, they may be more amenable to a misdemeanor plea bargain. But prosecutors rarely act out of generosity. You need an experienced Houston misdemeanor crimes lawyer on your side who understands how to deal with the criminal justice system. Contact the Law Offices of Tad Nelson & Associates today if you live in Harris or Galveston counties and require immediate legal assistance.