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 warranted‖
How later courts described this case
- 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 warranted‖
- 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 warranted”
- 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
Written by the judges who cited it.
The opinion
CONCURRING OPINION ON DENIAL OF MOTION FOR REHEARING
[Filed Nov. 16, 1994]
MILLER, Judge.
The State argues in its motion for rehearing that the absence of a gun, by itself, is insufficient to require the submission of an instruction on theft as a lesser included offense to an aggravated robbery charge. It claims, instead, that it would only entitle the defendant to an instruction on the lesser included offense of robbery because, under the Penal Code, the presence of a gun elevates robbery to aggravated robbery, not theft to aggravated robbery. However, because of the unique facts of this case, the State’s argument has no merit.
The State does not attack our holding that a jury could have rationally believed that a gun was not used or exhibited. Consequently) for the purposes of this discussion, I will analyze the lesser included offenses of theft and robbery as if no gun was in fact used or exhibited.
This Court has held that “[w]hen robbery is effected by threats of bodily injury or placing another in fear, that fear must be of such nature as in reason and common experience is likely to induce a person to part with his property against his will.” Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989) (emphasis added). Simply walking into a store, taking beer, and walking out (as the evidence shows under the above assumption) is not of “a nature in reason and common experience that is likely to induce a person to part with his property.”
I believe that the standard set out in De-vine requires some overt act on the part of the defendant that would produce a rational fear. The phrase “induce a person to part with his property” suggests that the defendant must do something to cause this rational fear. The clerk in the case at bar did testify that he was in fear, but this fear stemmed from the presence of the gun alone. If we were to assume, as I do for purposes of this discussion, that the jury believed that a gun was not present, the defendant did not commit any overt act that would cause a third party’s fear of imminent bodily injury to be *27 rational, as required under Devine . Therefore, an instruction on robbery as a lesser included offense of aggravated robbery would not have been proper.
With these comments, I concur in the denial of the State’s motion for rehearing.