Stupid question of the week: is there a list anywhere of lesser included offenses? I can't find one in PC or CCP, and I've also tried to search the TX Statutes web site with no results. [For those who are ex-JAGs, you may remember the MCM had an exclusive list of every lesser included offense.]

I've never heard of or seen such a list, though it probably wouldn't be a bad idea for the book-guru's at TDCAA to include in some publication. Since it's frequently a subject of the plea bargaining process, maybe in the next edition of The Perfect Plea? How about it John?

I have seen such a list. I think it was the early 1980s, and I believe it came from tdcaa.

That would be a pretty complicated list, since the existence of a lesser included offense often depends upon a series of facts developed at trial. I touch on the subject briefly in The Perfect Plea (page 27).

The biggest danger in pleading an offense to a lesser included offense is the creation of a void plea. If the lesser included offense is deemed not to be a lesser included offense, then a court can later announce the judgment was void because the trial court had no jurisdiction over that offense. See, e.g., Jacob v. State, 864 SW2d 741 (aggravated assault is not a lesser included offense of burglary with intent to commit aggravated assault).

Let me know if you find such a list. I could reference it in the next edition of The Perfect Plea.

John and others, thanks. Actually what I was thinking about is when I get a misdemeanor on a guy and there is also a felony offense sent to the DA (located in the next county). Case in point: DA has a charge of felon in possession of firearm, and I have a charge of unlawfully carrying a weapon. If the guy wants to plead to the misd offense, is the UCW a lesser included to the felon in possession of firearm? I realize he could plead to the felony and I could file a 12.45 motion, but sometimes I would like to get a plea as well.

I've never seen a list for Texas. Some states have a statutory list, e.g. Michigan. Here, your only guidance is caselaw and Art. 37.09 of the Code of Criminal Procedure. Much of the case law is contradictory and only deals with the first definition of lesser-included-offenses in Art. 37.09. Indeed, many opinions never look at the issue of whether a lesser is a lesser. During a recent argument in the CCA, one of the more respected judges appeared to be completely unaware of the Art. 37.09 definitions of lesser includeds. Scary.

A list for our state would be a difficult undertaking, as JB says. Not only do the facts at trial have an impact, but the manner and means you put in your charge can also have an impact. One manner and means may have one set of lessers, while another might have a different set of lessers. So any list have to be manner and means specific in order to work.