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Click here for the full text of this decision FACTS:The appellant, Charles Ray Irving, was convicted of the offense of aggravated assault. On appeal, the appellant argued that the trial court erred in failing to instruct the jury on the lesser included offense of simple assault. The court of appeals held that the appellant was entitled to an instruction on the lesser included offense and reversed and remanded the case to the trial court. HOLDING:The decision of the court of appeals is reversed. The court affirms the trial court’s holding and appellant’s conviction. While simple assault may be a lesser included offense of aggravated assault in some cases, here, the appellant is asking for a lesser included offense instruction based on facts not required to establish the commission of the offense charged. In other words, the conduct constituting the lesser included offense for which the appellant requested an instruction is different from the conduct which was alleged in the charging instrument for the appellant’s aggravated assault charge. The indictment for the aggravated assault alleged that the appellant committed aggravated assault against the victim by two separate theories, namely, that the appellant attacked the victim with a deadly weapon, to wit, a baseball bat, and that the appellant caused the victim serious bodily injury by hitting her with the bat. Here, the appellant is asking for an instruction for the offense of simple assault stemming from the conduct of hitting the victim with his fists and not a baseball bat. Because the conduct constituting the offense of assault for which the appellant wanted an instruction is not the same as the conduct charged in the indictment for aggravated assault, assault by means of striking the victim with his fists is not a lesser- included offense of aggravated assault by striking the victim with a bat. This offense fails to meet the requirements of Texas Code of Criminal Procedure Art. 37.09, because the same facts or less than the same facts required to prove the greater aggravated assault offense are not required to prove the assault offense. Proof that the appellant hit the victim with his fists is not required to prove aggravated assault by hitting the victim with a bat. Assault by hitting someone with a fist may be a lesser included offense of aggravated assault in some instances, but not as the greater offense was charged in the indictment in this case. The court of appeals erred by holding that the trial court erred in failing to give the jury the lesser included offense instruction for assault. For the reasons stated above, appellant was not entitled to a lesser included offense instruction. The trial court did not err in failing to instruct the jury. The court reaffirms its decision in Hayward v. State, No. PD-2081-03 (Tex. Crim. App. March 2, 2005). A trial court is not required to instruct a jury on a lesser included offense where the conduct establishing the lesser offense is not included within the conduct charged, i.e. within the facts required to prove the charged offense. OPINION:Meyers, J., delivered the opinion of the court, in which Price, Womack, Johnson, and Cochran, J.J., joined. Keller, P.J., and Keasler, Hervey, and Holcomb, J.J., concurred in the judgment.

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