Brad Thornton
- Mar 7, 2023
- 3 min read

Atascosa County Criminal Lawyer: What is a Lesser Included Offense in Texas

As a criminal defense attorney in San Antonio, Texas, I have handled many cases where lesser included offenses have been a crucial part of the trial. In this blog post, I will explain what a lesser included offense is, why they exist, and how they can impact a criminal case.

Definition of a Lesser Included Offense

In Texas law, a lesser included offense is a crime that is a subset of a more serious crime. In other words, it is a less serious offense that is included within a more severe offense. For example, theft is generally a lesser included offense of the more serious offense of robbery.

The Role of Lesser Included Offenses at Trial

Many times the prosecution will "overcharge" a case and try to convict the defendant for a more serious crime than the facts support. In other words, they try to fit a square peg into a round hole.

During the trial, a defense attorney may ask a judge to allow the jury to consider a lesser included offense to ensure that the defendant is not unfairly convicted of a more severe crime than the evidence supports. It also provides the jury with options to consider when determining the defendant's guilt.

For the prosecution, lesser included offenses can be beneficial because they offer the opportunity to obtain a conviction, even if the defendant is not found guilty of the primary charge.

Procedure for Charging Lesser Included Offenses

In Texas, a judge can include a lesser included offense in the trial only if there is evidence to support it. The judge will consider factors such as the evidence presented, the elements of the lesser included offense, and the jury instructions. The jury will then be instructed on the primary charge and any lesser included offenses that have been included in the trial. The jury will only be able to consider the lesser included offense if they are unable to reach a verdict on the primary charge.

Examples of Lesser Included Offenses in Texas

There are many examples of lesser included offenses in Texas criminal cases. For example, murder may include the lesser included offenses of manslaughter or criminally negligent homicide. Similarly, a charge of aggravated assault may include the lesser included offenses of assault or attempted assault.

The key difference between a lesser included offense and the primary charge is the required level of proof. For example, a murder charge requires the prosecution to prove that the defendant acted with the intent to kill, while a manslaughter charge requires proof of recklessness.

Can a Plea be Entered to the Lesser Included Offense?

A defendant can plead guilty or no contest to a lesser included offense in Texas. This is often done as part of a plea bargain, where the prosecution agrees to drop the primary charge in exchange for a plea to a lesser included offense.

Pleading to a lesser included offense can have advantages for both the prosecution and defense. For the prosecution, it guarantees a conviction, even if the defendant is not found guilty of the primary charge. For the defense, it can result in a more lenient sentence or a reduced charge on their criminal record.

However, it's important to note that pleading to a lesser included offense is still a criminal conviction and can have serious consequences. It's important to consult with an experienced criminal defense attorney before making any decisions about pleading to a lesser included offense.

In some cases, a defendant may prefer to take their chances at trial, even if a plea bargain for a lesser included offense is offered. This decision should be made after carefully considering the strength of the evidence, the potential consequences of a conviction, and the likelihood of success at trial.