Texas prosecutors may want to hedge their bets more at trial in light of a June 16 Court of Criminal Appeals opinion.

It has been an unsettled question in Texas whether prosecutors who do not muster enough evidence to convict a defendant of a certain offense can then ask appellate judges to convict the defendant of a lesser-included offense. According to Collier v. Texas, the answer is “no” unless prosecutors first give jurors the option to convict of a lesser-included offense.

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