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Click here for the full text of this decision FACTS:The state charged the appellant with committing murder by stabbing the victim. The appellant requested a lesser-included offense instruction for assault, because she said in a statement that she had only hit the victim with her fists and wrestled with him. The trial court denied the request. The appellant complained that the trial court erred in failing to give the lesser-included offense instruction for assault. The court of appeals reversed the conviction, holding that assault is a lesser-included offense of murder under Texas Code of Criminal Procedure Article 37.09 and that the record contained evidence that, if the appellant was guilty, she was guilty only of assault. HOLDING:The court reverses the court of appeals’ judgment and remands the case to that court to address the appellant’s other points of error. The appellant was charged with murder. The relevant part of the statute requires that the state prove that a person intended to cause serious bodily injury and committed an act that was clearly dangerous to human life and caused the death of the victim. The indictment alleged that the appellant intentionally caused serious bodily injury and caused the death of the victim by stabbing him with a knife or a piece of glass. A person commits an assault if she intentionally, knowingly or recklessly 1. causes bodily injury to another; 2. threatens another with imminent bodily injury; or 3. causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Texas Penal Code 22.01(a). Subsection (1) applies to this case: The appellant alleged that she wrestled with the victim and hit him with her fists causing bodily injury. The state alleged that the appellant stabbed the victim with a knife or a piece of glass. The appellant claimed that she wrestled with the victim and hit him with her fists. Hitting with fists could be a lesser-included offense of murder but not as the murder was charged in this case. The evidence at trial showed that the victim had been stabbed over fifty times with either a knife or a piece of glass. The appellant claimed that she caused bodily injury to the victim by wrestling with him and hitting him with her fists and thus was guilty only of assault. But, in her statement admitted during the trial, she did not say that she had held or used a knife at any point during the attack. She claimed to have hit the victim with her fists. In this case, the main issue was identity. The state claimed that the appellant stabbed the victim with a knife or a piece of glass. The appellant claimed that a man known to her as Chop stabbed the victim with a knife. Whether the appellant assaulted the victim with her fists on this or some other occasion was not an issue that was included in the indictment. Under this indictment, the state could not have secured a valid conviction for the assault that the appellant alleges she committed. Because the conduct that the appellant alleged was not included within the conduct charged in the indictment, the trial court did not err in failing to give the lesser-included offense instruction, the court holds. OPINION:Price, J., delivered the opinion of the court, in which Meyers, Womack, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., joined. Keller, P.J., concurred in the result.

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