At page 478 Reviewing denial of lesser-included offense instruction103 citing cases“(1) the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, [he] is guilty only of the lesser offense”
- Richard Rivera v. State, No. 08-12-00160-CR (Tex. App.—El Paso Oct. 8, 2014).published Hayward, 158 S.W.3d at 479 (“It is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury ca…
- Brandon Cornelius Harris v. State, No. 10-11-00035-CR (Tex. App.—Waco June 27, 2012).unpublished See Hayward, 158 S.W.3d at 479 (“It is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injur…
- Charles Wayne Warden v. State, No. 13-09-00116-CR (Tex. App.—Corpus Christi Sept. 16, 2010).unpublished([W]e examine the elements of the offense claimed to be a lesser-included offense to see if the elements are functionally the same as or less than those required to prove the charged offense.)
- Quanell X Abdul Farrakhan v. State, No. 01-04-01205-CR, 2006 Tex. App. LEXIS 10317 (Tex. App.—Houston [1st Dist.] Nov. 30, 2006).published (When we review a trial court's decision to deny the request, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. More specifically, we examine th…)
- Steven Scott Apilado v. State, No. 08-16-00358-CR, 2018 WL 3629371 (Tex. App.—El Paso July 31, 2018).published(no lesser-included offense instruction required where conduct establishing lesser offense differs from, and is not included within, the conduct charged in the indictment)
- Clevert Lee Tyler v. State, No. 09-16-00253-CR (Tex. App.—Beaumont Mar. 7, 2018).unpublishedApp. 2006) (quoting Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Lewis, Harlem Harold, Iii, No. AP-77,045 (Tex. Crim. App. Dec. 3, 2015).publishedApp. 2007); Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Johnathan Renard Castaneda v. State, No. 01-14-00390-CR (Tex. App.—Houston [1st Dist.] Nov. 10, 2015).unpublishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Ricky Neal Jr. v. State, No. 12-14-00158-CR (Tex. App.—Tyler May 8, 2015).published In the present case, the trial court erred in denying Appellant’s request for these lesser-included offense instructions because the evidence at trial, including Appellant’s own recorded confession, discussed supra justified inclusion of t…
- Johnathan Renard Castaneda v. State, No. 01-14-00389-CR (Tex. App.—Houston [1st Dist.] Jan. 28, 2015).publishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
Show 73 more citing cases
- Enrique Sanchez Salazar v. State, No. 13-14-00563-CR (Tex. App.—Corpus Christi Jan. 27, 2015).publishedHayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005); Jacob, 892 S.W.2d at 907-08 .
- Steven Allen Jones v. State, No. 01-13-00431-CR (Tex. App.—Houston [1st Dist.] Nov. 7, 2014).unpublishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Christopher Alan Luper v. State, No. 05-13-01259-CR (Tex. App.—Dallas Oct. 31, 2014).unpublishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Anthony Craig Mathis v. State, 443 S.W.3d 391 (Tex. App.—Austin 2014).publishedIrving v. State, 176 S.W.3d 842, 846 (Tex.Crim.App.2005) (citing Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005)).
- Michael Perry v. State, No. 06-13-00051-CR (Tex. App.—Texarkana Aug. 15, 2014).unpublishedApp. 2006) (citing Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Mohammud Nangurai v. State, 507 S.W.3d 229 (Tex. App.—Houston [1st Dist.] 2014).publishedSee id.; Hayward v. State, 158 S.W.3d 476, 478-79 (Tex.Crim.App.2005).
- Michael Marvin Russie v. State, No. 11-12-00162-CR (Tex. App.—Eastland June 12, 2014).unpublished“(1) the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, [he] is guilty only of the lesser offense”
- Timothy Lynn Tate v. State, No. 01-13-00290-CR (Tex. App.—Houston [1st Dist.] Apr. 24, 2014).unpublishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- King, Courtland Wayne v. State, No. 05-12-00842-CR (Tex. App.—Dallas Jan. 28, 2014).unpublishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Tomas Jimenez v. State, 419 S.W.3d 706 (Tex. App.—Houston [1st Dist.] 2013).publishedHayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005) (citing Jacob v. State, 892 S.W.2d 905, 907-08 (Tex.Crim.App.1995).
- Belinda Dawn Tidwell v. State, No. 01-12-00298-CR (Tex. App.—Houston [1st Dist.] Dec. 10, 2013).unpublishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Cynthia Ann Hudson v. State, 415 S.W.3d 891 (Tex. App.—Texarkana 2013).published Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App.2006) (citing Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005); Campbell v. State, 149 S.W.3d 149, 153 (Tex.Crim.
- Thomas Earl Whitfield v. State, 408 S.W.3d 709 (Tex. App.—Eastland 2013).published“(1) the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, [he] is guilty only of the lesser offense”
- Juan Manuel Valenzuela v. State of Texas, No. 11-11-00336-CR (Tex. App.—Eastland June 20, 2013).unpublishedHayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Paul Hage v. State, No. 08-10-00270-CR (Tex. App.—El Paso Apr. 30, 2013).publishedHayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App. 2005).
- Bradford Randle v. State, No. 10-11-00117-CR, 2013 WL 1188647 (Tex. App.—Waco Mar. 21, 2013).unpublishedHayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim.
- Wesley Dale Knight v. State of Texas, 406 S.W.3d 578 (Tex. App.—Eastland 2013).publishedHayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005).
- John Mark Walker v. State, No. 10-11-00221-CR (Tex. App.—Waco Nov. 29, 2012).unpublishedHayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim.
- Jeff Alan Rollins v. State, No. 10-11-00455-CR, 2012 WL 3799222 (Tex. App.—Waco Aug. 30, 2012).unpublishedHayward v. State, 158 S.W.3d 476, 478-79 (Tex. Crim.
- Sweed, Melvin Charles Jr., No. PD-0273-10 (Tex. Crim. App. Oct. 19, 2011).published Hayward v. State , 158 S.W.3d 476, 478-79 (Tex. Crim.
- SWEED v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011).published Hayward v. State, 158 S.W.3d 476, 478-79 (Tex.Crim.App.2005); Rousseau, 855 S.W.2d at 673 .
- Curtis Ray Dison v. State of Texas, No. 11-09-00094-CR (Tex. App.—Eastland Apr. 14, 2011).unpublished App. 2006); Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Alonso Torres Urias v. State of Texas, No. 11-08-00270-CR (Tex. App.—Eastland June 24, 2010).unpublished Hayward v. State , 158 S.W.3d 476, 478 (Tex. Crim. App. 2005).
- Keelan Gore v. State, No. 01-08-00391-CR (Tex. App.—Houston [1st Dist.] June 18, 2009).unpublished Robalin v. State , 224 S.W.3d 470 , (Tex. App.--Houston [1st Dist.] 2007, no pet.) (quoting Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Richard Leonar Whytus v. State, No. 06-08-00167-CR (Tex. App.—Texarkana Feb. 27, 2009).unpublished App. 2006) (citing Hayward v State , 158 S.W.3d 476, 478 (Tex. Crim.
- Clarence Henry Mathis v. State, No. 14-07-00732-CR (Tex. App.—Houston [14th Dist.] Feb. 10, 2009).unpublishedApp. 2007) (applying A pleadings approach @ as sole test in first step of determining whether a party is entitled to a lesser-offense instruction); Hayward v. State , 158 S.W.3d 476, 478 (Tex. Crim.
- Crystal Brock Oglesby v. State, No. 01-08-00158-CR (Tex. App.—Houston [1st Dist.] Jan. 22, 2009).unpublishedPhillips v. State , 178 S.W.3d 78, 81-82 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Hayward v. State , 158 S.W.3d 476, 478 (Tex. Crim.
- Ruth Elaine Adkins v. State, No. 02-08-00078-CR (Tex. App.—Fort Worth Dec. 4, 2008).published App. 2005); Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.
- Adkins v. State, 274 S.W.3d 870 (Tex. App.—Fort Worth 2008).publishedPickens v. State, 165 S.W.3d 675, 679 (Tex. Crim.App.2005); see also Irving v. State, 176 S.W.3d 842, 845-46 (Tex.Crim.App.2005); Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim.App.2005). 34 .
- Stafford v. State, 248 S.W.3d 400 (Tex. App.—Beaumont 2008).published
- Irving v. State, 176 S.W.3d 842 (Tex. Crim. App. 2005).published
- Robalin v. State, 224 S.W.3d 470 (Tex. App.—Houston [1st Dist.] 2007).published
- Farrakhan v. State, 263 S.W.3d 124 (Tex. App.—Houston [1st Dist.] 2007).published
- Luna v. State, 264 S.W.3d 821 (Tex. App.—Eastland 2008).published
- Phillips v. State, 178 S.W.3d 78 (Tex. App.—Houston [1st Dist.] 2005).published
- Tovar v. State, 165 S.W.3d 785 (Tex. App.—San Antonio 2005).published
- Landry v. State, 227 S.W.3d 380 (Tex. App.—Texarkana 2007).published
- Wooten v. State, 267 S.W.3d 289 (Tex. App.—Houston [14th Dist.] 2008).published
- Stadt v. State, 182 S.W.3d 360 (Tex. Crim. App. 2005).published
- Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006).published
- Dunklin v. State, 194 S.W.3d 14 (Tex. App.—Tyler 2006).published
- Yanez v. State, 187 S.W.3d 724 (Tex. App.—Corpus Christi 2006).published
- Baca v. State, 223 S.W.3d 478 (Tex. App.—Amarillo 2006).published
- Ortega v. State, 207 S.W.3d 911 (Tex. App.—Corpus Christi 2006).published
- Horne v. State, 228 S.W.3d 442 (Tex. App.—Texarkana 2007).published
- Yanez v. State, 199 S.W.3d 293 (Tex. App.—Corpus Christi 2006).published
- Henderson David Phillips v. State, No. 01-04-00759-CR (Tex. App.—Houston [1st Dist.] June 9, 2005).published
- Thomas Wade Buck v. State, No. 01-05-01009-CR (Tex. App.—Houston [1st Dist.] Oct. 12, 2006).unpublished
- Raul Robles Aguilar v. State, No. 01-05-00140-CR (Tex. App.—Houston [1st Dist.] July 13, 2006).unpublished
- Roscoe Robert Burns v. State, No. 01-06-01053-CR (Tex. App.—Houston [1st Dist.] Oct. 4, 2007).unpublished
- Ricardo Deleon v. State, No. 01-06-00398-CR (Tex. App.—Houston [1st Dist.] Feb. 15, 2007).unpublished
- Jodie Moore v. State, No. 02-06-00280-CR (Tex. App.—Fort Worth Aug. 24, 2007).published
- Lance Darnell Williams v. State, No. 02-07-00379-CR (Tex. App.—Fort Worth Oct. 2, 2008).unpublished
- Adalberto Mendez v. State, No. 03-03-00602-CR (Tex. App.—Austin Dec. 22, 2005).unpublished
- Kevin Jones v. State, No. 03-04-00428-CR (Tex. App.—Austin Oct. 20, 2005).unpublished
- in the Interest of T. B. D., a Child, No. 07-06-00008-CV (Tex. App.—Amarillo June 14, 2006).published
- Juan Antonio Baca v. State, No. 07-05-00132-CR, 2006 WL 1418636 (Tex. App.—Amarillo May 24, 2006).published
- Garry Wayne Donohue v. State, No. 08-05-00105-CR (Tex. App.—El Paso Feb. 15, 2007).published
- Reagan Aaron Oliver v. State, No. 09-06-00130-CR (Tex. App.—Beaumont Mar. 7, 2007).unpublished
- Elton Larrie Stafford v. State, No. 09-06-00233-CR (Tex. App.—Beaumont Feb. 20, 2008).published
- James D. McIntyre v. State, No. 10-06-00196-CR (Tex. App.—Waco Mar. 21, 2007).unpublished
- Florentino Gomez Torrez, Jr. v. State, No. 12-05-00226-CR (Tex. App.—Tyler July 19, 2006).published
- Efrain Avila Yanez v. State, No. 13-04-00327-CR (Tex. App.—Corpus Christi Feb. 16, 2006).published
- Youngblood, Robert Lee v. State, No. 14-05-00174-CR (Tex. App.—Houston [14th Dist.] Jan. 17, 2006).unpublished
- Jonathon Gabriel Cooper v. State, No. 14-06-00608-CR (Tex. App.—Houston [14th Dist.] June 5, 2007).published
- Jermarxian Deandre Green v. State, No. 14-06-00155-CR (Tex. App.—Houston [14th Dist.] May 31, 2007).published
- Deaundrey Laval Wooten v. State, No. 14-07-00131-CR (Tex. App.—Houston [14th Dist.] July 22, 2008).published
- Irving, Charles Ray, No. PD-0091-04 (Tex. Crim. App. Nov. 9, 2005).published
- Matthews, Damon Roshun, No. AP-74,936 (Tex. Crim. App. June 28, 2006).published
- Guzman, Jose Jesus, No. PD-1863-04 (Tex. Crim. App. Mar. 29, 2006).published
- Guillory, Patrick Sharard, No. PD-0163-15 (Tex. Crim. App. May 4, 2015).unpublished
- Jeremy Patrick Shakesnider v. State, 477 S.W.3d 920 (Tex. App.—Houston [14th Dist.] 2015).published
- Andrus v. State, 495 S.W.3d 300 (Tex. App.—Beaumont 2016).published
At page 479 Analyzing lesser-included offense relationship between assault and murder11 citing cases“it is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury can be a subset of serious bodily injury.”
- David Ybarra Jr. v. State, 621 S.W.3d 371 (Tex. App.—Eastland 2021).published (It is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury can be a s…)
- Jose Guadalupe Garcia Flores v. State, No. 14-17-00745-CR (Tex. App.—Houston [14th Dist.] June 20, 2019).unpublished (Hitting with fists could be a lesser-included offense of murder, but not as the murder was charged in the case.)
- Richard Rivera v. State, No. 08-12-00160-CR (Tex. App.—El Paso Oct. 8, 2014).published (It is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury can be a s…)
- Brandon Cornelius Harris v. State, No. 10-11-00035-CR (Tex. App.—Waco June 27, 2012).unpublished (It is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury can be a s…)
- Quanell X Abdul Farrakhan v. State, No. 01-04-01205-CR, 2006 Tex. App. LEXIS 10317 (Tex. App.—Houston [1st Dist.] Nov. 30, 2006).published See Hayward , 158 S.W.3d at 478 ("When we review a trial court's decision to deny the request, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial.
- In re the State of Texas ex rel. Jennifer A. Tharp, No. 03-15-00223-CV (Tex. App.—Austin Apr. 24, 2015).published“[i]t is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury can be a…”
- Donnie Ray Westbrook v. State, No. 12-09-00381-CR (Tex. App.—Tyler Feb. 28, 2011).published Analysis As the court of criminal appeals recognized in Hayward v. State , 158 S.W.3d 476, 479 (Tex. Crim. App. 2005), assault can be a lesser included offense of murder.
- Farrakhan v. State, 263 S.W.3d 124 (Tex. App.—Houston [1st Dist.] 2007).published
- Isaac v. State, 167 S.W.3d 469 (Tex. App.—Houston [14th Dist.] 2005).published
- Ex Parte: Frank Eugene Watson, No. 12-07-00127-CR, 2007 WL 4328265 (Tex. App.—Tyler Dec. 12, 2007).published
At page 480 Determining if lesser-included offense is within indictment conduct7 citing casesrecognizing that the conduct comprising a lesser-included offense must 13 be “included within the conduct charged in the indictment
- Jose Guadalupe Garcia Flores v. State, No. 14-17-00745-CR (Tex. App.—Houston [14th Dist.] June 20, 2019).unpublished Id. at 846 ; see also Hayward v. State, 158 S.W.3d 476, 479 (Tex. Crim. App. 2005) (“Hitting with fists could be a lesser-included offense of murder, but not as the murder was charged in the case.”).
- Thomas Wade Buck v. State, No. 01-05-01009-CR (Tex. App.—Houston [1st Dist.] Oct. 12, 2006).unpublished
- Jermarxian Deandre Green v. State, No. 14-06-00155-CR (Tex. App.—Houston [14th Dist.] May 31, 2007).published
- Thompson v. State, 227 S.W.3d 153 (Tex. App.—Houston [1st Dist.] 2007).published
- Warren Eugene Thompson v. State, No. 01-05-00704-CR (Tex. App.—Houston [1st Dist.] Dec. 14, 2006).published
- Haim Silber v. State, No. 13-05-00238-CR (Tex. App.—Corpus Christi Feb. 16, 2006).unpublished
- Eduardo Santillana Garza v. State of Texas, No. 08-24-00146-CR (Tex. App.—El Paso Sept. 23, 2025).published
v.
the STATE of Texas
OPINION
PRICE, J.,delivered the opinion of the Court,
in which MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.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. We hold that the trial court did not err in denying the appellant’s request because an assault using fists is not a lesser-included offense of murder by stabbing.
I. Pacts
Jonas Onwuchuruba, the appellant’s ex-husband, was found stabbed to death in his home. The appellant’s car fit the description of the car that a witness saw speeding away from the scene of the killing. The police arrested the appellant on a parole violation and questioned her about the stabbing.
At first, the appellant claimed that she did not know of the victim’s whereabouts or when she had seen him last. Later, she admitted that she, her boyfriend, and a man known to her as Chop [1] had been at[*478] his home on the day that he was killed. When the victim refused to give the appellant money for drugs, she wrestled with him and hit him with her fists. The appellant’s boyfriend also wrestled with him. The appellant said that, when the victim got away from them, Chop attacked him with a knife. According to the appellant, she and her boyfriend left the scene while Chop was still stabbing the victim.
The State indicted the appellant for the murder. At the end of the guilt phase of the trial, the appellant requested that a lesser-included offense instruction for assault be included in the jury charge. [2] The trial court denied the request.
On direct appeal, 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 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. [3] We granted the State’s petition for discretionary review.
II. The Law
Upon request, a lesser-included offense instruction should be included in the jury charge if (1) the requested charge is for a lesser-included offense of the charged offense and (2) there is some evidence that, if the defendant is guilty, she is guilty only of the lesser offense. [4]
Lesser-included offenses, in this context, are defined in Code of Criminal Procedure Article 37.09. That provision defines lesser-included offenses in terms of the offense charged.
(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. [5]
When we review a trial court’s decision to deny the request, we consider the charged offense, the statutory elements of the lesser offense, and the evidence actually presented at trial. [6] More specifically, we examine the statutory elements of the charged offense as modified by the indictment. [7] Next, we examine the elements of the offense claimed to be a lesser-included offense to see if the elements are functionally the same as or less than those required to prove the charged offense. [8] Then we examine the evidence[*479] actually presented to prove the elements of the charged offense to see if that proof also shows the lesser-included offense. [9]
In Campbell v. State, we elaborated and explained that double-jeopardy principles are applicable in the context of a lesser-included offense analysis. [10] The critical elements of the charging instrument, including time, place, identity, and manner and means, are relevant to the inquiry of whether one offense includes another for double jeopardy purposes and for purposes of lesser-included offense instructions. [11]
III. Analysis
In this case, the appellant was charged with murder. [12] 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. [13] 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. [14]
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. [15] Subsection (1) applies to this case: The appellant alleged that she wrestled with the victim and hit him with her fists causing bodily injury.
It is possible, under the right set of circumstances, for the statutory elements of assault to be included within a murder because the two offenses could have the same culpable mental state and bodily injury can be a subset of serious bodily injury. But this is not such a case. 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 appellant argues that, because there are many similarities between the offense charged and the lesser-included offense that she claims to have committed, she was entitled to the lesser-included offense instruction. She says that the time, place, and alleged actor are the same. She argues that the manner and means is only one of several factors to be considered. Specifically she says that, “simply because the appellant’s hand is empty one moment and might have contained a knife the next[*480] does not make the two offenses completely separate offenses.”
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. In other words, 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. We reverse the Court of Appeals’s judgment and remand the case to that Court to address the appellant’s other points of error.
KELLER, P.J., concurred in the result.. The evidence at trial indicated that the police were unable to locate anyone known as[*478] Chop.
. The appellant also requested lesser-included offense instructions for manslaughter, negligent homicide, and deadly conduct. On appeal, the appellant did not complain about the denial of these requests.
. Hayward v. State, 117 S.W.3d 5, 14 (Tex. App.-Houston [14th Dist.] 2003).
. Jacob v. State, 892 S.W.2d 905, 907 (Tex. Crim.App.1995).
. Tex.Code Crim. Proc. Art. 37.09 (emphasis added).
. Jacob, 892 S.W.2d at 907-08.
. Id., at 908.
. Campbell v. State, 149 S.W.3d 149, 155 (Tex.Crim.App.2004).
. The indictment specifically charged that the appellant did
unlawfully intend to cause serious bodily injury to [the complainant] and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely by stabbing the Complainant with a deadly weapon, namely a knife.
[and appellant] did ... unlawfully intend to cause serious bodily injury to [the complainant] and did cause the death of the Complainant by intentionally and knowingly committing an act clearly dangerous to human life, namely by stabbing the Complainant with a deadly weapon, namely a piece of glass.
. Tex Pen.Code § 22.01(a).