What authority does a judge have to find a lesser included offense during a bench trial? The CCP §37.08 only seems to authorize a jury to find a lesser included offense. What if the Felony offense charge includes a lesser included misdmeanor which if filed at the same time in County Court as the Felony was indicted would be past the two year statute of Limitations?
"In a bench trial, the prosecution is not required to submit a lesser included offense charge to the trial judge. The trial court is authorized to find the appellant guilty of any lesser offense for which the State provides the required proof." Shute v. State, 877 S.W.2d 314, 314 (Tex.Crim.App.1994)
On the limitations question, the answer doesn't seem to be as good (mainly because the period expired before the return of the indictment).
See Alston v. State, 738 S.W.2d 762 (Tex. App.--Beaumont 1987, no pet.) (cited and distinguished in State v. Yount, 853 S.W.2d 6, 7-8 (Tex. Crim. App. 1993).
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