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Click here for the full text of this decision FACTS:On Jan. 30, 2002, the appellant was convicted for the felony offense of possession of a controlled substance with intent to deliver methamphetamine of 4 grams or more but less than 200 grams. The appellant appealed, claiming that the trial court erroneously denied his request for a lesser-included-offense instruction. The court of appeals affirmed the judgment of the trial court. HOLDING:Affirmed. This court granted review to determine whether the court of appeals erred in upholding the trial court’s refusal to charge the jury on the lesser charge of possession of a controlled substance in an amount less than one gram. Because the appellant confessed to having less than one gram of methamphetamine in a toolbox in his truck at the time of the arrest, he claims that the jury could have used his statement to find him guilty only of the lesser offense of simple possession. The state argues that possession of less than one gram of methamphetamine in a toolbox at a separate location is not a lesser-included offense of possession with intent to distribute between 4 and 200 grams of methamphetamine found in the Cadillac. Thus, the state urges that no jury instruction on simple possession is warranted. A two-part Royster test is used to determine whether a lesser-included offense may be submitted to a jury. Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993). First, to be considered a lesser-included offense, the lesser offense must be included within the proof necessary to establish the offense charged. This means that the offense must come within the dictates of Article 37.09 of the Texas Code of Criminal Procedure. Second, some evidence must exist in the record that would permit a jury to rationally find that if the appellant is guilty, he is guilty only of the lesser offense. Because Article 37.09 defines a lesser-included offense both in terms of the offense charged and in terms of the facts of the case, the determination of whether an offense is a lesser-included offense must be settled on a case-by-case basis. Cunningham v. State, 726 S.W.2d 151 (Tex. Crim. App. 1987) (citing Day v. State, 532 S.W.2d 302, 315-16 (Tex. Crim. App. 1976)). Accordingly, the court analyzes: 1. the elements of the offense actually charged; 2. the elements of the offense sought as a lesser-included offense; and 3. the proof actually presented at trial to establish the elements of the charged offense to see if that proof showed the lesser-included offense. In determining whether an offense is a lesser-included offense, one must consider statutory elements and surrounding facts and circumstances to see if there are two distinct criminal acts. Here, although the lesser offense confessed to by the appellant would at a glance appear to fulfill the statutory elements of a lesser-included offense, a closer look at the facts reveals that the alleged possession to which the appellant confessed is a separate offense, unrelated to the crime for which he was charged. The narcotics that the appellant confessed to possessing were at a different location than those for which the state offered proof. And neither the police nor the state were aware of the other stash of narcotics until the appellant admitted to the possession at trial, so it is impossible for the appellant to have been indicted for the possession of the narcotics in the truck. The court finds no evidence in the record linking the possession of the narcotics in the backpack in the Cadillac to the possession of the narcotics in the truck. The court therefore concludes that the possession of less than a gram of methamphetamine in the truck is not a lesser-included offense of the possession with intent to distribute between 4 and 200 grams of methamphetamine found in the backpack in the Cadillac. Thus the appellant was not entitled to a lesser-included-offense instruction. OPINION:Meyers, J., delivered the opinion of the court, in which Keller, P.J., and Price, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., join. Keller, P.J., filed a concurring opinion, in which Keasler, Hervey, and Holcomb, JJ., join. Johnson, J., filed a concurring opinion. Womack, J., concurs. CONCURRENCE:Keller, P.J.; “In this case the State did not adopt, as covered by the indictment, the criminal act about which the defendant introduced evidence. Appellant’s attempt to obtain a lesser included offense instruction based upon that crime was an improper attempt to foist upon the State an offense the State had not chosen to prosecute. Even if the Court were to require the State to make an election regarding a crime that the State never presented to the jury to avoid its inclusion, such a requirement was met here. The State actively opposed including the defendant’s proffered crime within the indictment’s coverage by objecting to appellant’s requested lesser included offense. The State’s objection was sufficient to constitute an election if one is thought to be required. “Because the State never adopted, as covered by the indictment, appellant’s proffered lesser included offense, appellant was not entitled to an instruction on it.” CONCURRENCE:Johnson, J. “Perhaps we need to return to the reasoning of Luna v. State, 493 S.W.2d 854, 855 (Tex. Crim. App. 1973), which stated, “The same offense means the identical criminal act, not the same offense by name.” The allegations in an indictment may adequately describe not only the charged conduct but also uncharged repetitions or uncharged lesser-included offenses of the same statutory offense. However, the fact that an allegation is adequate to describe uncharged conduct as well as the charged conduct does not logically lead to a conclusion that proof of the uncharged conduct is sufficient to prove the charged conduct. The correct solution is not to authorize conviction for the charged offense based on similar, but uncharged, conduct, but rather to file charges against such a confessing defendant for the offense he confessed to, regardless of the outcome of the trial on the original charge.”

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