Molitor v. State

I believe the trial court was obligated to submit the requested charge on criminally negligent homicide. Accordingly, I respectfully dissent from the affirmance of the conviction.

As stated by the majority, in deciding whether the second prong of the lesser-included-offense test has been satisfied, this Court must determine if there is “some evidence” in the record that appellant, if guilty, is guilty only of criminally negligent homicide. All of the evidence at the trial must be considered, whether produced by the State or appellant. Dowden v. State, 758 S.W.2d 264, 269 (Tex.Crim.App.1988).…