Smith v. State

While I agree with the excellent analysis concerning the conviction of a lesser offense which is contained in the majority opinion, I do most respectfully dissent from the proposition that fundamental error exists. Here there was no objection to the charge given.1 Here the offense for which petitioner was convicted may have been included in the offense charged and the evidence supported the conviction. Thus, I am convinced that the error, such as it was, is harmless.2

Not all errors are reversible. For instance, a comment on failure to testify may no longer be considered by an appellate court…