Grey v. State (Tex.Crim.App 2009)
With a stroke of the pen, the Court of Criminal Appeals overruled the 12-year precedent of Arevalo v. State, 943 S.W.2d 887 (Tex.Crim.App. 1997), which required that before the jury could be instructed on a lesser-included offense requested by the State, "some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense."
No longer bound by the second prong of the Royster-Rousseau test, the prosecutor may request jury instructions on any lesser-included offense in an effort to allow the noble citizens of Texas to convict of whichever legal theory they feel is both appropriate and supported by the evidence.
The prior all-or-nothing decision which required the prosecutor to roll the dice in hopes of a conviction on the greater charge or proceed only on a lesser theory even though he knew the case was worth more, is over.
