# Bignall v. State

> Court of Criminal Appeals of Texas · November 16, 1994 · 887 S.W.2d 21

URL: https://www.frixlaw.com/law-library/cases/9678332

## Case

- **Full name:** Gary Charles BIGNALL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 16, 1994
- **Citations:** 887 S.W.2d 21; 1994 Tex. Crim. App. LEXIS 121; 1994 WL 497277
- **Precedential status:** Published
- **Opinion:** Concurrence by Maloney
- **Judges:** Maloney, Mecormick, White, Campbell, Miller, McCormick
- **Cited by:** 647 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678332

## How later opinions describe it (automated extraction)

- stating that ―it is not enough that the jury may disbelieve crucial evidence 11 pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is war…
- stating that “it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense; there must be some evidence directly germane to a lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warran…
- explaining that if a defendant only presents evidence he committed no offense, and *474 there is no evidence otherwise showing he is guilty only of the lesser-included offense, then a lesser-included offense instruction is not warranted
- explaining that if a defendant only presents evidence he committed no offense, and there is no evidence otherwise showing he is guilty only of the lesser-included offense, then a lesser-included offense instruction is not 16 warranted
- holding that because evidence from which jury could find that defendant and his accomplices had committed lesser-included offense of theft rather than aggravated robbery, defendant was entitled to instruction on theft

## Opinion text

MALONEY, Judge,
concurring.
The majority opinion might to the unwary indicate that before a trial court should charge the jury on a lesser included offense, where it will also be charging the jury on the primary offense, that there must be independent evidence produced outside of the State’s case supporting the lesser included offense; this is not so. If there is no evidence on an element of the State’s main case, then the court should instruct the jury only on the included offense, provided of course that the evidence is such that a rational jury could find the defendant guilty of the lesser offense. See Rousseau v. State, 824 S.W.2d 579 (Tex.Crim.App.1992). Conversely, if there is sufficient evidence on each element of the primary offense to meet the test of Jackson v. Virginia, and if there is some evidence whether raised dining the State’s side of the case or the defendant’s side of the case, whether through direct examination or cross-examination that would allow a rational jury to find that the defendant is guilty of the lesser included offense, then the trial court should also instruct the jury on the lesser included offense.
With these observations I join the opinion of the majority.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678332. Public record. Not legal advice.