Hung Phuoc Le v. State, 14-14-00043-CR

Appellant Hung Phuoc Le appealed conviction for possession of marijuana in a quantity more than four ounces and less than five pounds.
Appellant requested a jury instruction on the lesser-included misdemeanor offense: possession of four ounces or less.
The court applied Texas’s two-step test for lesser-included-offense instructions: (1) legal comparison of elements; (2) whether the trial evidence raises a fact issue that the defendant is guilty only of the lesser offense.
On step one the court found the misdemeanor (≤4 oz.) is a cognate lesser-included offense of the charged felony (>4 oz. to <5 lbs.).
On step two the court concluded that, based on the trial evidence, no rational jury could find appellant guilty only of the lesser offense.
The trial court therefore did not err by refusing the lesser-included misdemeanor instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether misdemeanor possession (≤4 oz.) is a lesser-included offense of the felony charged (>4 oz.–<5 lbs.)	Misdemeanor is a cognate lesser-included offense because it requires proof of the same or fewer facts	The charged felony encompasses the misdemeanor but relief only appropriate if evidence supports it	Held: Yes — as a matter of law the misdemeanor is a lesser-included offense (step one)
Whether trial evidence warranted a jury instruction on the lesser offense	Appellant contended evidence left a fact issue that he was guilty only of the lesser offense	State argued evidence did not permit a rational jury to conclude guilt was limited to the lesser offense	Held: No — on step two, no rational jury could find appellant guilty only of the misdemeanor; instruction not required

State v. Meru, 414 S.W.3d 159 (Tex. Crim. App. 2013) (sets out Texas two-step lesser-included-offense test and cognate-pleadings approach)
Saenz v. State, 632 S.W.2d 793 (Tex. App.—Houston [14th Dist.] 1982) (discusses when evidence must support lesser-included instruction)