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Click here for the full text of this decision FACTS:The Court of Criminal Appeals opinion did not summarize the case involving Aaron Junior Hall but stated that the case turned on whether the offense of aggravated assault by threat is a lesser-included offense of murder. The CCA granted review to resolve ambiguities and conflicts in its decisions about the method of determining whether the allegation of a greater offense includes a lesser offense. HOLDING:Affirmed. Texas Code of Criminal Procedure Art. 37.09 sets out general definitions of a lesser-included offense that apply to all offenses. Under the statute, an offense is a lesser-included offense if: 1. It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; 2. It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; 3. It differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or 4. It consists of an attempt to commit the offense charged or an otherwise included offense. The problematic definition, the CCA stated, is in Art. 37.09(1) � specifically the term “facts required to establish.” The CCA then recited its history in struggling to define this clause. The CCA then attempted to clarify the meaning of the clause, holding that the first step in the lesser-included-offense analysis � determining whether an offense is a lesser-included offense of the alleged offense � was a question of law. It does not depend on the evidence to be produced at the trial. The CCA further held that the lesser-included offense determination should be made by comparing the elements of the greater offense, as the state pled it in the indictment, with the elements in the statute that defines the lesser offense. In the second step, the CCA stated that Art. 37.09(a) poses a question whether the elements of the lesser offense are established by proof of the same or less than all the facts required to established the commission of the offense charged. The CCA decided that aggravated assault was not a lesser offense included in the offense of murder that authorities alleged in the indictment at issue. OPINION:Womack, J., delivered the opinion of the court, in which Meyers, Price, Johnson and Cochran, J.J., joined. DISSENTS:Hervey, J., filed a dissenting opinion, in which Keller, P.J., and Keasler, J., joined. “I would decide that appellant procedurally defaulted any appellate claim that the aggravated assault by threat offense was not a lesser-included offense of the charged murder offense.” Keller, P.J., dissented. “I do not disagree with the Court’s adoption of the cognate-pleadings approach, but because I would not reach the merits of the lesser-included-offense issue, I respectfully dissent.” Holcomb, J., dissented without an opinion.

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