McCardell v. State’s Empirical Analysis

Citation profile

14 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 14 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “"I had always understood this language to mean that if any of the testimony-not just defensive testimony-shows that the appellant is guilty of the lesser included offense, then the trial judge must give a charge on that offense, provided that the appellant does not present testimony which unequivocally negates the existence of the lesser included offense. See Torres v. State, 493 S.W.2d 874 (Tex.Cr. App.1973). "Interpreted in this manner, McBrayer fails to support the majority's disposition of the case. The majority fails to recognize that a defendant can raise the existence of a lesser included offense as a defensive issue. In such a case, the defensive issue is that the defendant is not guilty of the offense charged, but guilty of a lesser included offense. The fact that the defensive theory attempts to demonstrate guilt of a less serious offense, as opposed to a defense which to negate guilt of any offense, should not affect whether a defensive charge is given. The only difference is that where a lesser included offense is raised as the defensive theory, the defensive charge will be in the form of a charge on the lesser included offense. "This view is amply supported by cases involving defensive charges in general. * * * "Thus, the rule is that in the absence of defensive testimony which absolutely negates the lesser included offense, the trial court must charge on the lesser included offense if `any particular portion of the evidence' shows that appellant was only guilty ”

   1 later decision quote this exact passage · from the dissent
   e.g. Watson v. State

2. “" All the defensive testimony shows that appellant committed no crime at all because he was told that Robert was working for the shop owner in the building and Robert invited appellant to enter. There was nothing according to Robert's testimony that put appellant on notice that he did not have the effective consent of the owner to enter. In short, the proof shows that appellant committed the offense of burglary. He was guilty or not guilty of that offense."”

   1 later decision quote this exact passage
   e.g. Watson v. State

3. “that `[t]here is no testimony in the present case that would make appellant guilty of only the crime of trespass' ... the majority is apparently construing McBrayer to mean that the evidence must exclude the possibility of the appellant's guilt of the greater offense before a defensive charge on the lesser offense is required. This has never been, nor should it become, the law.”

   1 later decision quote this exact passage · from the dissent
   e.g. Watson v. State