We draw fine distinctions in arriving at the applicable law all the time, but for the life of me, aside from the results, I cannot see much difference between Hampton, No. 362-02 (07/02/03) and Nash, No. 06-01-191-CR (08/05/03), each of which discuss submission of a lesser included offense based on testimony of whether a weapon was present at the scene. Cases like Nash scare me because the court does not even mention the "it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense" test in its opinion. I guess the only safe rule for a prosecutor is to agree to submission of a lesser offense instruction since you never know where the appellate court may find "some evidence" that the accused was guilty only of the lesser offense (though the greater offense is clearly the more rational alternative for the jury).

I agree, to some extent, but what bugs me is that the CCA almost never looks at whether a claimed lesser-included is indeed a lesser-included under Article 37.09. We have people asking for all kinds of stupid things . . .