Background

• Penaloza was convicted of aggravated robbery and sentenced to 33 years.
• Alvarez was held at gunpoint after being blocked by a tan SUV; she identified a gun in Penaloza's pocket.
• Rueda rummaged Alvarez's apartment; personal belongings were loaded into the SUV.
• Alvarez later said the gun might have been a toy, during a 911 call that was scrutinized at trial.
• Penaloza objected to the jury charge for aggravated robbery only and requested a lesser-included robbery instruction, which the trial court denied.
• The appellate issue is whether the court abused its discretion in refusing the lesser-included offense instruction.

Issues

Key Cases Cited

• Rousseau v. State, 855 S.W.2d 666 (Texas Crim. App. 1993) (two-prong test for lesser-included offenses)
• Royster v. State, 622 S.W.2d 442 (Texas Crim. App. 1981) (two-prong framework for entitlement to lesser offenses)
• Black v. State, 183 S.W.3d 925 (Tex. App.—Houston (14th Dist.) 2006) (relevance to standard for submitting lesser offenses)
• Little v. State, 659 S.W.2d 425 (Tex. Crim. App. 1983) (robbery as lesser-included of aggravated robbery)
• Williams v. State, 240 S.W.3d 293 (Tex. App.—Austin 2007) (robbery included in aggravated robbery; standard discussion)
• Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. 2008) (establishes prong for lesser-included offense)
• Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App. 1985) (second prong: evidence of lesser offense)
• Dobbins v. State, 228 S.W.3d 761 (Tex. App.—Houston [14th Dist.] 2007) (scintilla standard for lesser offense instruction)
• Massey v. State, 933 S.W.2d 141 (Tex. Crim. App. 1996) (unfavorable certainty does not create evidence of lesser offense)
• Hampton v. State, 109 S.W.3d 437 (Tex. Crim. App. 2003) (toy-gun evidence insufficient to negate deadly weapon; abrogated on other grounds)
• Navarro v. State, 280 S.W.3d 405 (Tex. App.—Amarillo 2008) (prior inconsistent statements and impeachment context)