In this case the only issue in contention is whether the police officers' testimony that no knife of the kind described by the complainant could be found at the scene of the offense may constitute evidence which would support a finding that the defendant, if guilty, was guilty only of the lesser included offense of sexual assault. Such testimony was affirmative evidence which supported the State's request for a charge on the lesser-included offense.

In determining whether the trial court properly charged on the lesser included offense, the two prongs of Rousseau must be established: (1) the lesser included offense must be included within the proof necessary to establish the offense charged; and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993) cert. denied, 510 U.S. 919 (1993). Both parties agree that the first prong of Rousseau was met.

As to the second prong, there is a clear distinction between (1) no evidence or absence of evidence in the record and (2) affirmative evidence in the record regarding the absence of evidence. In this case, the evidence showed not only that the knife was never found, but that under the circumstances, if a knife was used during the assault, it would have been in the apartment when the officers searched for it.

The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in determining whether an instruction on a lesser-included offense should be given. See Banda v. State, 890 S.W.2d42, 60 (Tex. Crim. App. 1994). Regardless of its strength or weakness, if any evidence in the record from any source raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. See Medina v. State, 7 S.W.3d 633, 638 (Tex. Crim. App. 1999) cert. denied, 529 U.S. 1102 (2000) and Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998) ("any evidence in the record from any source"). Here, the court of appeals effectively found the officers' testimony regarding the knife was "some evidence directly germane" to the lesser included offense. Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997) , cert. denied, 523 U.S. 1079 (1998).

The court of appeals properly found "some evidence" as opposed to "no evidence" or an "absence of evidence" in the record to support the State's request for a charge on the lesser included offense. Because the majority opinion concludes that the second prong of the test was not met, I must respectfully dissent.

Filed July 2, 2003.

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