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Click here for the full text of this decision FACTS:The court withdraws its April 27, 2005, opinion and substitutes this opinion. Appellant Charles Ray Irving was convicted of the offense of aggravated assault. 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:Reversed. The court of appeals held that simple assault is necessarily a lesser-included offense of aggravated assault. However, while simple assault may be a lesser-included offense of aggravated assault in some cases, here, 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 appellant requested an instruction is different from the conduct which was alleged in the charging instrument for appellant’s aggravated-assault charge. The indictment for the aggravated assault alleged that appellant committed aggravated assault against the victim by two separate theories, namely, that appellant attacked the victim with a deadly weapon, to wit, a baseball bat, and that appellant caused the victim serious bodily injury by hitting her with the bat. Here, appellant is asking for an instruction for the offense of simple assault stemming from the conduct of grabbing the victim and eventually falling on top of her, and not hitting the victim with 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 grabbing the victim and eventually falling on top of her 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 Article 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 grabbed and fell on top of the victim is not required to prove aggravated assault by hitting the victim with a bat. Assault by grabbing and falling on someone 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. Thus, as to the second ground for review, the court re-affirms the decision in Hayward v. State, 158 S.W.3d 476 (Tex. Crim. App. 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. The court holds that 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. OPINION:Meyers, J., delivered the opinion of the Court, in which Price, Womack, Johnson, and Cochran, JJ., joined. Keller, P.J., and Keasler, Hervey, and Holcomb, JJ., concurred in the judgment.

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