A lesser-included offense instruction is required only where some evidence exists in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty of only the lesser offense. See, e.g., Skinner v. State,956 S.W.2d 532, 543 (Tex.Crim.App. 1997), cert. denied, 118 S.Ct. 1526 (1998). However, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. See id. Rather, there must be some evidence directly germane to a lesser-included offense for the fact finder to consider before an instruction on it is warranted. See id. Evidence may indicate a defendant is guilty of only the lesser offense if: (1) there is evidence which refutes or negates evidence establishing the greater offense; or (2) the evidence presented is subject to different interpretations. See Saunders v. State, 840 S.W.2d 390, 391-92 (Tex. 1992). *Page 904
As the majority opinion correctly observes: (1) the central issue on this point of error is whether there is any evidence that would permit a rational jury to find that appellant was guilty of delivery of only more than five pounds but less than 50 pounds of marijuana; and (2) the manner of sampling and testing the bundles goes only to the weight, and not the sufficiency, of the evidence that the untested substance was the same as the tested substance.
The box in question contained 105 bundles of varying weights and wrapped in various colored opaque plastic. The chemist testified that she examined and tested the contents of one bundle weighing 7.44 pounds. The evidence was thus sufficient to support an inference that the untested bundles also contained marijuana, and appellant does not challenge the legal sufficiency of the evidence to support his conviction for the alleged quantity.
The majority opinion states that: (a) the jury was free to believe that the contents of the untested bundles was either unknown or was not marijuana due to inadequate sampling or investigation; and (b) there was evidence that only 7.44 pounds of marijuana was present and, thus, some evidence that if appellant was guilty, he was guilty of only the lesser-included offense of possessing the smaller quantity of marijuana. I disagree with this conclusion for two reasons.
First, as noted above, a lesser-included offense is not required merely because a jury may reject some of the evidence of the greater offense. Therefore, the fact that the jury could decline to infer that the untested bundles were marijuana does not satisfy the test.
Second, according to what is reflected in the majority opinion, there is only evidence, albeit circumstantial, that the untested bundles were marijuana. The majority opinion cites no evidence to support a contrary inference or interpretation that any of the remaining bundles contained no marijuana or contained anything besides marijuana or that the tested bundle was the only one that did contain marijuana. Therefore, there is only evidence that appellant is guilty of possessing the greater quantity of marijuana and no evidence that, if appellant is guilty, he is guilty of possessing only the smaller quantity. Accordingly, I would not reverse appellant's conviction for the lack of an instruction on the lesser-included offense.