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Click here for the full text of this decision FACTS:Authorities indicted Quanell X. Abdul Farrakhan for the state felony offense of evading detention by the use of a motor vehicle. On Nov. 15, 2004, he was tried before a Harris County petit jury. At the close of the evidence, at the state’s request and over Farrakhan’s objection, the trial court charged the jury on the misdemeanor offense of fleeing or attempting to elude a police officer as a lesser-included offense of evading detention. The jury convicted Farrakhan of the lesser offense of fleeing, thus implicitly acquitting him of the greater offense of evading detention. On direct appeal, Farrakhan raised four issues, only one of which was relevant to the CCA’s later review: that the trial court erred when it charged the jury on the allegedly lesser-included offense of fleeing or attempting to elude a police officer. The 1st Court of Appeals held that the trial court erred in charging the jury on the lesser-included offense. The court then applied the CCA’s egregious-harm standard, set forth in its 1984 decision Almanza v. State, and held that Farrakhan had been harmed by the trial court’s error because “[t]he jury acquitted appellant of the charged offense and convicted him of an offense with which the jury should not have been charged because that offense was not a lesser-included offense.” The 1st Court therefore reversed the judgment of the trial court and remanded the cause to that court with instructions to dismiss the indictment. The CCA granted review to consider the following issues: 1. whether the offense of fleeing or attempting to elude a police officer, under Texas Transportation Code �545.421, is a lesser-included offense of evading detention, under Texas Penal Code �38.04; and 2. whether the 1st Court erred in holding that fleeing or attempting to elude a police officer was not a lesser-included offense of evading detention in this case and that the trial court therefore should not have submitted an instruction authorizing the jury to convict Farrakhan of fleeing. HOLDING:Affirmed. The state conceded that in light of the CCA’s 2007 decision in Hall v. State, “much of the court of appeals’ analysis was correct.” Specifically, the state conceded that the 1st Court was “clearly correct in holding that courts should compare the elements of the lesser offense to the elements of the greater offense as modified by the charging instrument.” The state argued, however, that while Hall clarified what should be compared in determining whether an offense is the lesser-included offense of the charged offense, it did not clarify how the comparison should be made. The state suggested that the CCA require the courts to “examine the elements of the lesser offense and decide whether they are”functionally the same or less than those required to prove the charged offense.’ “ But in attempting to show in this case that misdemeanor fleeing was a lesser-included offense of evading detention, the state went on to discuss the evidence it presented at trial. Based on this discussion, the state concluded: “Since the essential difference in the context of the pleadings in this case is that the misdemeanor offense did not require proof of flight, while the felony offense did, proof of the lesser was made by proof of facts functionally the same or less than those required to prove the lesser [sic].” The state then went on to show such functional equivalence by, again, referring to the facts presented at trial. Thus, the CCA found that the state appeared “to be trying to bring in those facts through the back door, so to speak, even though [the CCA] had clearly stated in Hall that such facts were not to be considered in the first step of the lesser-included-offense analyses.” It is only after the alleged lesser offense passes the scrutiny under the first step of the analysis that we then proceed to the second step of “determining whether the evidence at trial supports giving one of [the] predetermined lesser-included offense instructions.” To hold otherwise, the CCA stated, would be contrary to the better analysis of the statute and might run afoul of the requirements of due process by making it impossible to know before trial what lesser offenses are included within the indictment, yet making it possible at the end of the trial to convict for any offense that was incidentally shown by the evidence. The CCA summarized that the 1st Court determined that fleeing was not a lesser-included offense of evading detention, as the latter was charged in the present case. When it used the term “functional equivalence,” the 1st Court employed the same two-step method of conducting such lesser-included-offense analyses in its opinion that the CCA described in Hall. Thus, the CCA found that the 1st Court reached the same result that Hall mandates. OPINION:Holcomb, J., delivered the opinion of the court, in which Meyers, Womack, Johnson and Cochran, JJ., joined. CONCURRENCE:Keller, P.J., and Price, Keasler, Hervey, JJ., concurred without a written opinion.

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