Ex Parte State

I concur specially for two reasons. First, I believe that it would be unjust to require the defendant to submit a written instruction on the lesser included offenses under the facts of this case. Prior to the trial court's charging the jury, the defendant's attorney asked the court to charge on the lesser included offenses. The court replied, "All right." Accordingly, the defendant was justified in relying on the trial court's agreement to so charge. However, the trial court did not give the charge and the defendant objected to the failure to charge on the lesser offenses. Under these facts I…