Hardin v. State

OPINION

ONION, Judge.

The offense is burglary with intent to commit theft; the punishment, 12 years’ confinement in the Texas Department of Corrections.

In his first ground of error appellant contends the court erred, despite timely objection, “in failing to instruct on the lesser included offense of misdemeanor theft.”

Article 37.08, V.A.C.C.P., does provide:

“In a prosecution for an offense including lower offenses, the jury may find the defendant not guilty of the higher offense, hut guilty of any lower offense included.” See also Article 4.06, V.A.C.C.P.

Article 37.09, V.A.C.C.P., provides in…