Let me see if I can at least make this "clear as mud"...
In the information, we allege that Defendant stole an iPad with a value of $500 or more but less than $1500 (Class A Theft). Victim says it was "worth" $500. Defense counsel says if we don't prove value in that range BRD, the only proper verdict is acquittal.
It seems that "theft is theft" and value only comes in play in the context of punishment. Maybe I'm wrong? Would we be entitled to a lesser-included instruction if the value is not proven to be at the Class A level, BRD?
Arron P. Swink
Assistant County Attorney
Cherokee County, Texas
The value of the property determines the degree of the offense, so it's not just a punishment issue. You can ask for a lesser -- as the State, we don't have to show that there's any affirmative evidence supporting the lesser. But it doesn't sound like there's any evidence that the iPad was worth anything other than $500. Has the defense put forward any kind of alternative, or just that the owner's testimony isn't good enough?
No alternatives - just the contention that the owner (who testified that he didn't buy it, his wife did) doesn't know what he's talking about.
37.08 allows a jury to convict someone of a lesser included offense. The state can request a lesser included instruction and the court may include it over the defense's objection per Willis v. State, 761 S.W.2d 434. I think you're fine. But look over the case law for yourself because I've been mistaken before.
Thanks, John! I will make sure we're on good footing.
Also see Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009) for support that the State is entitled to instruction for any lesser included offense without having to have affirmative evidence to support the instruction.
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