OPINION
MEYERS, J.,
delivered the opinion of the Court,
in which KELLER, P.J., and PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., join.
On January 30, 2002, Appellant was convicted for the felony offense of possession of a controlled substance with intent to deliver methamphetamine of 4 grams or more but less than 200 grams. Tex. Health & Safety Code § 481.112 (Vernon 2002). Appellant appealed, claiming that the trial court erroneously denied his request for a lesser-included offense-instruction. The Court of Appeals affirmed the judgment of the trial court. Appellant then filed this petition for discretionary review. We will affirm the Court of Appeals.
Fort Worth police stopped a maroon Cadillac on June 15, 2000, because it had an expired dealer’s tag. Appellant was a passenger in the Cadillac. After a driver’s license check on the driver, Veronica Alvarez, revealed an outstanding warrant for her arrest, police officer Moore arrested Alvarez and inquired whether the Cadillac could be released to Appellant. Alvarez agreed, so Moore asked to see Appellant’s driver’s license. Upon checking Appellant’s license, Moore discovered that Appellant also had a warrant for his arrest and arrested Appellant. Officer Moore then inventoried the Cadillac and discovered a black backpack lying in the backseat behind the front passenger seat which Appellant had occupied. The backpack had the name of Appellant’s stepson written on it, and it contained “smelly” men’s clothing, a “smelly” towel, a cell phone and a charger, a pager, and a daytime organizer. Inside the organizer, Officer Moore found two baggies containing what was later determined to be 8.64 grams of methamphetamine, several small empty baggies, a set [151]*151of small scales, two syringes, a tourniquet, and an address book. Alvarez became hysterical when Officer Moore found the items, and she claimed that the backpack and its contents did not belong to her. Officer John Law, assisting Officer Moore at the scene, told Appellant he thought the drugs were appellant’s because of the men’s clothing in the backpack. At this point, according to Alvarez, Appellant ad.mitted, ‘Tes, that’s my stuff.”
Officer Law read Appellant his rights and asked him whether he would make a statement. Appellant agreed and wrote a statement at the scene explaining that Alvarez “knew nothing of the things I had in my bag, any drugs or otherwise,” and that “this stuff is for my use, not any other reason than that. I had bought the meth before her picking me up.”
In his testimony at trial, although Appellant admitted that the phone, pager, and address book belonged to him, he alleged that Officer Moore was lying about discovering them inside the backpack with the drugs. He urged that the backpack and the drugs instead belonged to his estranged wife who dealt drugs with Alvarez and her ex-husband. While Alvarez claimed that Appellant got into the car with the backpack, Appellant said that Alvarez had told him his wife was the one who had left the backpack in the Cadillac. Appellant testified that he gave the false statement about Alvarez knowing nothing of the drugs and said the drugs were his because: he was afraid of Alvarez’s husband, who was “violent;” he wanted to spare Alvarez’s four children; and he was reluctant to implicate his own wife for the sake of his stepson, who has Down Syndrome. Appellant did, however, confess that on the day of the offense, he possessed less than one gram of methamphetamine in a toolbox in his car at the motel where Alvarez had picked him up, and he admitted that the police had never found the drugs in his toolbox. Based on this testimony, Appellant requested that the trial court submit a lesser-included offense instruction to the jury. The trial court refused to charge the jury on the lesser-included offense, and Appellant appealed.
On appeal, Appellant argued that the trial court erred by refusing to charge the jury on the lesser-included offense of possession of under one gram of methamphetamine. The Court of Appeals held that, based on the facts of this case, possession of one gram of methamphetamine was not a lesser-included offense of the charged offense and affirmed the decision of the trial court. Campbell v. State, No. 2-02-044-CR, 2003 Tex.App. LEXIS 761 (Tex.App.-Fort Worth, Jan. 9, 2003).
We granted review to determine whether the Court of Appeals erred in upholding the trial court’s refusal to charge the jury on the lesser charge of possession of a controlled substance in an amount less than one gram. Because Appellant confessed to having less than one gram of methamphetamine in a toolbox in his truck at the time of the arrest, he claims that the jury could have used his statement to find him guilty only of the lesser offense of simple possession. The State argues that possession of less than one gram of methamphetamine in a toolbox at a separate location is not a lesser-included offense of possession with intent to distribute between 4 and 200 grams of methamphetamine found in the Cadillac. Thus, the State urges that no jury instruction on simple possession is warranted.
The State correctly cites to many cases which set forth the proper law and analytical process to determine whether Appellant is entitled to a jury charge as to a lesser-included offense, but none of those cases deal with simple possession of a controlled substance less than one gram at a [152]*152separate location as a lesser-included offense of possession with intent to distribute between 4 and 200 grams of a controlled substance. Thus, the cases cited by the State do not bear directly upon the issue here. We also fail to see the connection between Appellant’s case and the DWI cases he cites.
Appellant claims that because he was indicted for possession of methamphetamine between 4 and 200 grams, and because he admitted to having less than one gram of methamphetamine in a toolbox not located in the Cadillac, he is entitled to a jury instruction to that effect as a lesser-included offense. He urges that the jury could have used his testimony about the drugs in the toolbox to support his conviction on the greater charge or, had it been allowed, the jury could have used it to find him guilty of the charge of simple possession of a lesser amount. In so urging, he compares his situation to DWI rulings in which the State is entitled to a synergistic charge when drug-use evidence comes out in a ease where the charging instrument alleges alcohol but not drugs. See Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App.1995); Heard v. State, 665 S.W.2d 488 (Tex.Crim.App.1984); Miller v. State, 341 S.W.2d 440 (Tex.Crim.App.1960). The State, on the other hand, argues that because simple possession was not included within the proof necessary to establish the offense charged, Appellant was not entitled to a jury instruction. Additionally, the State maintains that no rational jury could have concluded that Appellant was guilty only of the lesser-included offense.
On appeal, the Court of Appeals held that proof of the charged offense for possession of methamphetamine in an amount greater than 4 grams but less than 200 grams required no evidence that Appellant possessed less than a gram of methamphetamine in a toolbox at a separate location. Citing Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998), and
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
MEYERS, J.,
delivered the opinion of the Court,
in which KELLER, P.J., and PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., join.
On January 30, 2002, Appellant was convicted for the felony offense of possession of a controlled substance with intent to deliver methamphetamine of 4 grams or more but less than 200 grams. Tex. Health & Safety Code § 481.112 (Vernon 2002). Appellant appealed, claiming that the trial court erroneously denied his request for a lesser-included offense-instruction. The Court of Appeals affirmed the judgment of the trial court. Appellant then filed this petition for discretionary review. We will affirm the Court of Appeals.
Fort Worth police stopped a maroon Cadillac on June 15, 2000, because it had an expired dealer’s tag. Appellant was a passenger in the Cadillac. After a driver’s license check on the driver, Veronica Alvarez, revealed an outstanding warrant for her arrest, police officer Moore arrested Alvarez and inquired whether the Cadillac could be released to Appellant. Alvarez agreed, so Moore asked to see Appellant’s driver’s license. Upon checking Appellant’s license, Moore discovered that Appellant also had a warrant for his arrest and arrested Appellant. Officer Moore then inventoried the Cadillac and discovered a black backpack lying in the backseat behind the front passenger seat which Appellant had occupied. The backpack had the name of Appellant’s stepson written on it, and it contained “smelly” men’s clothing, a “smelly” towel, a cell phone and a charger, a pager, and a daytime organizer. Inside the organizer, Officer Moore found two baggies containing what was later determined to be 8.64 grams of methamphetamine, several small empty baggies, a set [151]*151of small scales, two syringes, a tourniquet, and an address book. Alvarez became hysterical when Officer Moore found the items, and she claimed that the backpack and its contents did not belong to her. Officer John Law, assisting Officer Moore at the scene, told Appellant he thought the drugs were appellant’s because of the men’s clothing in the backpack. At this point, according to Alvarez, Appellant ad.mitted, ‘Tes, that’s my stuff.”
Officer Law read Appellant his rights and asked him whether he would make a statement. Appellant agreed and wrote a statement at the scene explaining that Alvarez “knew nothing of the things I had in my bag, any drugs or otherwise,” and that “this stuff is for my use, not any other reason than that. I had bought the meth before her picking me up.”
In his testimony at trial, although Appellant admitted that the phone, pager, and address book belonged to him, he alleged that Officer Moore was lying about discovering them inside the backpack with the drugs. He urged that the backpack and the drugs instead belonged to his estranged wife who dealt drugs with Alvarez and her ex-husband. While Alvarez claimed that Appellant got into the car with the backpack, Appellant said that Alvarez had told him his wife was the one who had left the backpack in the Cadillac. Appellant testified that he gave the false statement about Alvarez knowing nothing of the drugs and said the drugs were his because: he was afraid of Alvarez’s husband, who was “violent;” he wanted to spare Alvarez’s four children; and he was reluctant to implicate his own wife for the sake of his stepson, who has Down Syndrome. Appellant did, however, confess that on the day of the offense, he possessed less than one gram of methamphetamine in a toolbox in his car at the motel where Alvarez had picked him up, and he admitted that the police had never found the drugs in his toolbox. Based on this testimony, Appellant requested that the trial court submit a lesser-included offense instruction to the jury. The trial court refused to charge the jury on the lesser-included offense, and Appellant appealed.
On appeal, Appellant argued that the trial court erred by refusing to charge the jury on the lesser-included offense of possession of under one gram of methamphetamine. The Court of Appeals held that, based on the facts of this case, possession of one gram of methamphetamine was not a lesser-included offense of the charged offense and affirmed the decision of the trial court. Campbell v. State, No. 2-02-044-CR, 2003 Tex.App. LEXIS 761 (Tex.App.-Fort Worth, Jan. 9, 2003).
We granted review to determine whether the Court of Appeals erred in upholding the trial court’s refusal to charge the jury on the lesser charge of possession of a controlled substance in an amount less than one gram. Because Appellant confessed to having less than one gram of methamphetamine in a toolbox in his truck at the time of the arrest, he claims that the jury could have used his statement to find him guilty only of the lesser offense of simple possession. The State argues that possession of less than one gram of methamphetamine in a toolbox at a separate location is not a lesser-included offense of possession with intent to distribute between 4 and 200 grams of methamphetamine found in the Cadillac. Thus, the State urges that no jury instruction on simple possession is warranted.
The State correctly cites to many cases which set forth the proper law and analytical process to determine whether Appellant is entitled to a jury charge as to a lesser-included offense, but none of those cases deal with simple possession of a controlled substance less than one gram at a [152]*152separate location as a lesser-included offense of possession with intent to distribute between 4 and 200 grams of a controlled substance. Thus, the cases cited by the State do not bear directly upon the issue here. We also fail to see the connection between Appellant’s case and the DWI cases he cites.
Appellant claims that because he was indicted for possession of methamphetamine between 4 and 200 grams, and because he admitted to having less than one gram of methamphetamine in a toolbox not located in the Cadillac, he is entitled to a jury instruction to that effect as a lesser-included offense. He urges that the jury could have used his testimony about the drugs in the toolbox to support his conviction on the greater charge or, had it been allowed, the jury could have used it to find him guilty of the charge of simple possession of a lesser amount. In so urging, he compares his situation to DWI rulings in which the State is entitled to a synergistic charge when drug-use evidence comes out in a ease where the charging instrument alleges alcohol but not drugs. See Sutton v. State, 899 S.W.2d 682 (Tex.Crim.App.1995); Heard v. State, 665 S.W.2d 488 (Tex.Crim.App.1984); Miller v. State, 341 S.W.2d 440 (Tex.Crim.App.1960). The State, on the other hand, argues that because simple possession was not included within the proof necessary to establish the offense charged, Appellant was not entitled to a jury instruction. Additionally, the State maintains that no rational jury could have concluded that Appellant was guilty only of the lesser-included offense.
On appeal, the Court of Appeals held that proof of the charged offense for possession of methamphetamine in an amount greater than 4 grams but less than 200 grams required no evidence that Appellant possessed less than a gram of methamphetamine in a toolbox at a separate location. Citing Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998), and Jacob v. State, 892 S.W.2d 905, 908 (Tex.Crim.App.1995), and holding that the trial court did not err in refusing to submit Appellant’s requested lesser-included offense instruction, the Court of Appeals determined that: 1) possession of less than one gram of methamphetamine was not a lesser-included offense of the charged offense, 2) the purported lesser-included offense did not come within Article 37.09 of the Texas Code of Criminal Procedure, and 3) it therefore did not meet the first step of the two-step lesser-ineluded-offense test. Campbell v. State, No. 2-02-044-CR, 2003 Tex.App. LEXIS 761 (Tex.App.Fort Worth, Jan. 9, 2003).
The Royster test
A two-part test (“Royster ” test) is used to determine whether a lesser-included offense may be submitted to a jury. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993). First, to be considered a lesser-included offense, the lesser offense must be included within the proof necessary to establish the offense charged. Id. This means that the offense must come within the dictates of Article 37.09 of the Texas Code of Criminal Procedure. Moore, 969 S.W.2d at 6-7. Second, some evidence must exist in the record that would permit a jury to rationally find that if Appellant is guilty, he is guilty only of the lesser offense. Rousseau, 855 5.W.2d at 672-73; Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981).
Because Article 37.09 defines a lesser-included offense both in terms of the offense charged and in terms of the facts of the case, the determination of whether an offense is a lesser-included offense must be settled on a case-by-case basis. Cunningham v. State, 726 S.W.2d 151, 153 (Tex.Crim.App.1987) (citing Day v. State, 532 S.W.2d 302, 315-16 (Tex.Crim.App.1976)). [153]*153Accordingly, we must analyze: 1) the elements of the offense actually charged, 2) the elements of the offense sought as a lesser-included offense, and 3) the proof actually presented at trial to establish the elements of the charged offense to see if that proof showed the lesser-included offense. Jacob, 892 S.W.2d at 907-08; Ford v. State, 38 S.W.3d 836, 843 (Tex.App.Houston [14th Dist.] 2001, no pet.); Moore, 969 S.W.2d at 8.
Article 37.09, in relevant part, states that an offense is a lesser-included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code CRiM. PROC. Art. 37.09 (Vernon 2004). The Texas statute for possession with intent to distribute states that a person commits the offense when “the person knowingly ... possesses with intent to deliver a controlled substance .... ” Tex. Health & Safety Code § 481.112(a) (Vernon 2002). A person commits a violation for simple possession, on the other hand, when “the person knowingly or intentionally possesses a controlled substance .... ” Tex. Health & Safety Code § 481.115(a) (Vernon 2002). The only significant difference between these two statutes is “intent to deliver” the controlled substance. Indeed, Texas courts have held that simple possession is a lesser-included offense of possession with intent to distribute. Porter v. State, 873 S.W.2d 729, 735 (Tex.App.Dallas 1994, pet. ref d) (“possession of less than 28 grams is a [lesser-included] offense of possession with intent to deliver an amount greater than 28 grams”); Greer v. State, 783 S.W.2d 222, 224 (Tex.App.-Dallas 1989, no pet.) (“[possession of a controlled substance is the quintessential [lesser-included] offense of the crime of possession with intent to deliver”); Upchurch v. State, 23 S.W.3d 536, 538 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd); Hanks v. State, 104 S.W.3d 695, 699-700 (Tex.App.-El Paso 2003), aff'd, 137 S.W.3d 668 (Tex.Crim.App.2004). However, we have found no cases dealing with a situation where a defendant was indicted for possession of between 4 and 200 grams of drugs found at one location, and requests a lesser-included-offense instruction as to less than a gram of drugs that were at a different location.
We find no cases that deal with a defendant claiming that he should be entitled to a lesser-included-offense instruction for a stash of narcotics found at a separate location than the stash for which he was indicted. The State argues that no proof of possession of less than one gram of methamphetamine at a separate location is needed to establish possession with intent to distribute between 4 and 200 grams of methamphetamine in the Cadillac, and thus possession of the methamphetamine in the truck is not a lesser-included offense of the charged offense.
The facts in Rankin v. State, 953 S.W.2d 740 (Tex.Crim.App.1996) are similar to the facts in Appellant’s case. In Rankin, police found a rock of crack cocaine under the seat in a patrol car where the defendant had been sitting, and the defendant was convicted of possession of a controlled substance (cocaine) weighing less than 28 grams. At trial, the defendant took the stand and denied that the rock of crack cocaine in the car was his, but confessed to possessing a different rock of cocaine at home earlier that day. Id. at 741. The court of appeals held that the testimony on the stand was an admission to an extraneous offense for which the defendant could not be prosecuted in that trial. Rankin v. State, 881 S.W.2d 14, 17 (Tex.App.-Houston [1st Dist.] 1994), rev’d by Rankin v. State, 953 S.W.2d 740 (Tex.Crim.App.1996) (“[w]hen appellant took the stand and admitted possession of cocaine earlier in the morning, an act that would also fit within [154]*154the terms of the indictment, he was admitting that he committed an extraneous offense”). This Court reversed the court of appeals, holding that the defendant’s confession to possessing a rock of crack cocaine on the same day was an act that was “shown in the charging papers,” and was thus not an extraneous offense. Rankin, 953 S.W.2d at 741.
Although the facts in Rankin appear to be similar, the case does not apply here. The issue at hand is not whether the offense is an extraneous offense, but rather the narrower issue of whether the offense is a lesser-included offense.1 Neither party in Rankin claimed that one offense was a lesser-included offense of the other. Instead, the offenses were treated as separate offenses, both falling under the language of the indictment. See Rankin, 881 S.W.2d at 16-17 (in jury argument the State urged, “If you don’t believe [that the cocaine found in the seat of the patrol car is defendant’s] and you believe Mr. Rankin, that hey, you know, he smoked the crack or, hey, he had already thrown it down the sink as he testified yesterday ... then again you find the defendant guilty”). Here, however, Appellant is claiming that the offenses are essentially part of the same criminal act, one a lesser degree than the other. Furthermore, the issue in Rankin was not whether the defendant possessed rock A or rock B, it was whether he possessed any rock of crack on that day; the possession of rock A was not a defense to rock B. See Rodriguez v. State, 104 S.W.3d 87, 97 (Tex.Crim.App.2003)(Cochran, J., dissenting); see also Rankin, 953 S.W.2d at 746 (Baird, J., dissenting) (testimony of wife related to extraneous offense because the “indictment alleged only one possession ... the only possession of which the State had knowledge”).
Generally, to determine whether an offense is a lesser-included offense, this Court must evaluate the entire record and consider both the offense charged and the facts proven in this case. Cunningham, 726 S.W.2d at 153; Banda v. State, 890 S.W.2d 42, 42-43 (Tex.Crim.App.1994); Sandoval v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) (“a statement made by a defendant ‘cannot be plucked out of the record and examined in a vacuum’ in a lesser-included offense analysis”). The mere fact that the language in an indictment technically covers two instances of conduct, however, does not mean that each instance is part of the same criminal act for which the Appellant was indicted. In the case Luna v. State, 493 S.W.2d 854 (Tex.Crim.App.1973), this Court commented on the possibility that although two offenses could appear to be covered by a single indictment, they could still be two entirely separate offenses. See Luna, 493 S.W.2d at 855. In declaring that “[t]he same offense means the identical criminal act, not the same offense by name,” the Luna Court gave the following example:
To illustrate, there might be two cases against A for assault to murder on B with a pistol on the same alleged date, and a judgment of conviction or acquittal occur in one case. On the face of the pleadings and judgment a plea of former conviction or acquittal would appear good, and yet A may have tried to kill B [155]*155on two different occasions on the same day.
Id. at 855 (quoting Poteet v. State, 138 Tex.Crim. 9, 133 S.W.2d 581, 583 (App.1939)). Assuming arguendo, that the offense is covered by the language in the indictment, that mere fact does not make it a lesser-included offense. Luna, 493 S.W.2d at 855. The real question is whether there is a single act of possession, or two separate acts of possession. Id.; Ex Parte Walker, 813 S.W.2d 570, 571 (Tex.App.-Corpus Christi 1991) (dism’d for jurisdiction), (defendant was charged in two indictments for possession of narcotics seized at the same time and at the same location, one small quantity found on his person and a large quantity found in his hotel room).2
In another case, Parrish v. State, 869 S.W.2d 352 (Tex.Crim.App.1994), dealing with the meaning of “same elements” to determine whether an offense was a lesser-included offense for double jeopardy purposes, the Court noted that “critical elements of an accusatory pleading, such as time, place, identity, manner, and means, although not statutory, are germane to whether one offense includes another under Texas law and to whether several offenses are the same for double jeopardy purposes.” Id. at 354 (emphasis in original). Finally, in Smith v. State, 873 S.W.2d 773, 774-75 (Tex.App.-Fort Worth 1994), the defendant was convicted of delivery of cocaine, and also of possession of cocaine with intent to deliver. The defendant sold cocaine to an officer inside a residence, and then threw additional cocaine on the ground as he left the residence and was being arrested. The court concluded that because each offense required proof of a fact not required by the other, the offenses were separate and distinct. Id. at 775.
The essential point to take from Luna, Parrish, and Smith is that, in determining whether an offense is a lesser-included offense, one must consider statutory elements and surrounding facts and circumstances to see if there are two distinct criminal acts. Here, although the lesser offense confessed to by Appellant would at a glance appear to fulfill the statutory elements of a lesser-included offense, a closer look at the facts reveals that the alleged possession to which Appellant confessed is a separate offense, unrelated to the crime for which he was charged. The narcotics that Appellant confessed to possessing were at a different location than those for which the State offered proof. And, neither the police nor the State were aware of the other stash of narcotics until Appellant admitted to the possession at trial, so it is impossible for Appellant to have been indicted for the possession of the narcotics in the truck. See Rankin, 953 S.W.2d at 745 (Baird, J., dissenting) (“[bjecause the State was not aware of appellant’s earlier possession of cocaine until appellant and his wife testified, the earlier possession could not have been the offense for which appellant was on trial and was, therefore, an extraneous offense”). We find no evidence in the record linking the possession of the narcotics in the backpack in the Cadillac to the possession of the narcotics in the truck. We therefore conclude that the possession of less than a gram of methamphetamine in the truck is not a lesser-included offense of the possession with intent to distribute between 4 and 200 grams of methamphet[156]*156amine found in the backpack in the Cadillac. Thus Appellant was not entitled to a lesser-included-offense instruction. The decision of the Court of Appeals is affirmed.
KELLER, P.J., filed a concurring opinion, in which KEASLER, HERVEY, and HOLCOMB, JJ., join.
JOHNSON, J., filed a concurring opinion.
WOMACK, J., concurs.