Lesser Included Offenses in Texas

This post closely relates to a previous post on whether or not you should take a plea bargain. As I talked about before, the decision on whether to take a plea is a major life decision. Don’t take it lightly whether it’s a Class C Misdemeanor or a felony. It can have long lasting consequences on your life. You have the right to a jury trial. Have a long, serious talk to your lawyer about the pros/cons of a plea deal and whether going to trial is what is best for your case. I don’t think any plea bargaining discussion with clients would be complete without talking about lesser included offenses in Texas.

What Are Lesser Included Offenses?

I think the easiest way to explain lesser included offenses is through the picture directly above. Everyone has seen these dolls before. They’re usually made of wood and they range in size from big to small. The smaller ones fit into the slightly larger ones until all the dolls are hidden inside the largest doll. This is what lesser included offenses are. In Criminal Law, a lesser included offense is a crime which shares some of the same elements of a greater crime.

Let’s use an example and keep it simple: One of my clients was charged with a 3rd Degree Felony (2-10 years in prison) of Assault Family Violence – Strangulation. Now normally, Assault family violence (up to 1 year in jail) on its own is a Class A misdemeanor. What’s the difference between the two? Strangulation. This means blocking the flow of air while the person is breathing.

In our example, the Class A – Assault family violence charge is a lesser included offense of the 3rd Degree Felony, Assault Family Violence – Strangulation. This is because with the Class A, the prosecutor doesn’t need to prove the additional element of strangulation. This is very important to consider for plea bargaining and jury trial purposes.

How Do Lesser Included Offenses Affect My Case?

Lesser included offenses are important to your case for a few reasons. First, the case against you for the greater criminal charge may have holes or flaws in it. If that’s the case, you’d want your defense lawyer to talk to the prosecutor about plea bargaining for a lesser included offense. Lesser included offenses have lesser jail prison/sentences and less fines attached to them. This is important because, using our example above, your risk of prison time can go from 2-10 years down to the maximum of 1 year. That might not sound so great right now but a large part of what we’re here to do is reduce your risk as much as possible.A reduced sentence can be very tempting when the evidence is stacked against you.

Second, lesser included offenses can be included at trial in the jury charge instructions. These are the instructions given to jurors if you go to trial. In that situation, using the example above, if the jury didn’t have enough evidence to find you guilty of the 3rd degree felony, they COULD still find you guilty of the lesser included offense of the Class A misdemeanor. Once again, this would be an attempt to limit your risk.

Third, lesser included offenses can have a positive effect on your criminal record. Using the example above, having a felony conviction on your record has NUMERIOUS collateral consequences. Some of these may include your ability to vote, own/buy/possess firearms, employment prospects, government security clearances, state licensing etc… All three of these issues you should talk about with your defense lawyer.

 Summary

Lesser included offenses in Texas play an important part in criminal cases. This is especially true when plea bargaining for a reduced sentence or during on a jury trial or trial by Judge. (You already know my feeling on this one.) Reduced sentences are a constant aim of defense lawyers when the potential jail time is stacked high. Whether it’s through plea bargaining, or through jury charge instructions, we want the lowest possible exposure of prison/jail time for our clients. Collateral consequences are no different. Felony convictions can hinder the rest of your life. Pleading to a misdemeanor might not be ideal however, the risk of the unknown, by way of more prison time on a felony, may be too great for some to consider. Have a serious conversation with your defense lawyer to weigh the pros and cons of plea bargaining for lesser included offenses.