by the charging instrument) for functional equivalency. Only after such a comparison does the court proceed to the third prong of the Hayward-Jacob test: an examination of the evidence that the State presented to prove the charged offense in order to determine if that proof also shows the lesser-included offense. See Hayward, 158 S.W.3d at 478-79; Jacob, 892 S.W.2d at 907-08. As for this third prong, the question is not whether the charged offense is capable of being established on some theory that does not show the lesser-included offense, but, rather, whether the State, in proving the charged offense, also presents evidence showing the lesser offense. Bartholomew v. State, 871 S.W.2d 210, 212 (Tex.Crim.App.1994) (quoting Broussard v. State, 642 S.W.2d 171, 173 (Tex.Crim.App.1982)) (<HOLDING>). Section one of article 37.09, like all of
holding that the trial court erred in giving jury instructions that offered alternative theories of murder holding that trial court erred in denying motion for judgment of acquittal when state failed to prove venue holding that trial court erred in denying lesseroffense instructions on speeding and racing when some evidence showed that defendant was speeding and racing and when information charged reckless driving by exceeding the posted speed limit and engaging in a race holding that trial court erred in considering pro se motion for new trial filed when defendant was represented by counsel holding trial court erred in denying defendants motion for arrest of judgment where indictment was insufficient