context: We further note that our decision in Stephens v. State, also relying on the overreaching-by-the-State rationale, did not permit the State to rely on a defendant's unsuccessful request for a lesser-included-offense instruction on murder in rejecting the State's claim that double-jeopardy principles did not prevent it from prosecuting the defendant for murder after an appellate court had decided that the evidence was insufficient to support the aggravating element of the defendant's conviction for capital murder.
citation_a.signal: see
citation_a.identifier: 806 S.W.2d 812, 817-18
citation_a.parenthetical: rejecting State's claim that "since it did not oppose [the defendant's] request for a lesser included offense instruction, that it should not be penalized for the trial court's failure to include the lesser offense in the charge to the jury"
citation_a.sentence: See Stephens v. State, 806 S.W.2d 812, 817-18 (Tex.Cr.App.1990) (rejecting State’s claim that “since it did not oppose [the defendant’s] request for a lesser included offense instruction, that it should not be penalized for the trial court’s failure to include the lesser offense in the charge to the jury”); see also Ex Parte Feryl John Granger, 850 S.W.2d 513, 519-20 (Tex.Cr.App.1993) (distinguishing Stephens on basis that this Court in Stephens was “careful to point out repeatedly ... that at the original trial, the State had chosen not to request an instruction on the lesser included offense of rape. In other words, the State had, at the first trial, failed to pursue the lesser included offense charge after jeopardy had attached to it and was, therefore, forever barred from prosemtvng it again.”) (emphasis in original). In Stephens, the State was not permitted to rely on the defendant’s unsuccessful request for a lesser-included-offense instruction to make this instruction “applicable to the case.”
citation_b.signal: see also
citation_b.identifier: 850 S.W.2d 513, 519-20
citation_b.parenthetical: distinguishing Stephens on basis that this Court in Stephens was "careful to point out repeatedly ... that at the original trial, the State had chosen not to request an instruction on the lesser included offense of rape. In other words, the State had, at the first trial, failed to pursue the lesser included offense charge after jeopardy had attached to it and was, therefore, forever barred from prosemtvng it again."
citation_b.sentence: See Stephens v. State, 806 S.W.2d 812, 817-18 (Tex.Cr.App.1990) (rejecting State’s claim that “since it did not oppose [the defendant’s] request for a lesser included offense instruction, that it should not be penalized for the trial court’s failure to include the lesser offense in the charge to the jury”); see also Ex Parte Feryl John Granger, 850 S.W.2d 513, 519-20 (Tex.Cr.App.1993) (distinguishing Stephens on basis that this Court in Stephens was “careful to point out repeatedly ... that at the original trial, the State had chosen not to request an instruction on the lesser included offense of rape. In other words, the State had, at the first trial, failed to pursue the lesser included offense charge after jeopardy had attached to it and was, therefore, forever barred from prosemtvng it again.”) (emphasis in original). In Stephens, the State was not permitted to rely on the defendant’s unsuccessful request for a lesser-included-offense instruction to make this instruction “applicable to the case.”