I have a case on appeal where the defendant was sentenced to 55 years for the offense of Aggravated Assault. At trial, Defense counsel argued the jury was entitled to a charge on simple assault, as well as aggravated assault. I argued that these are different offenses and the State may they elect to charge the defendant with aggravated assault versus simple assault. Therefore, the judge ruled to leave
the charge of simple assault out of the jury charge.

Has anyone also dealt with this and/or have any case law on this subject?

You can't cite this case but it should be helpful.


"The court of appeals was correct when it said that assault is a lesser included offense of aggravated assault; that is, an allegation of aggravated assault also includes an allegation of assault. The indictment alleged two kinds of aggravated assault, as we have said, and each kind included a lesser offense of assault. The allegation of the conduct of causing serious bodily injury by stabbing the victim in the abdomen with a knife included the lesser offense of causing bodily injury that was not serious by stabbing the victim in the abdomen with a knife. The allegation of the conduct of causing bodily injury by stabbing the victim with a knife that was a deadly weapon included the lesser offense of causing bodily injury by stabbing the victim in the abdomen with a knife that was not a deadly weapon. But neither allegation of stabbing the victim in the abdomen with a knife included the offense of hitting the victim in the head with the fist. Hitting with the fist was different conduct, specifically a different act, a different bodily movement.
The indictment could have alleged aggravated assault by conduct that included a combination of acts, such as stabbing with a knife and hitting with a fist. But it did not. The indictment need not have alleged the conduct so specifically as causing injury by stabbing in the abdomen. But it did.
The trial court's ruling was correct. The conduct of hitting the victim's head with the fist had not been indicted, and such an accusation was not being tried.
We reverse the judgment of the Eleventh Court of Appeals and remand the case for that court to consider the appellant's remaining points of error."



Gilmore v. State, 2004 WL 3092761 (Tex. Crim. App. (June 23, 2004) (not published)

As I started reading that case I thought it sounded familiar. I did not brief the issue but was here as appellate attorney when the CCA finally decided it - took what 5 years for them to decide

Not sure if it answers the question posed, but a case you could cite would be Ferrel, 55 S.W.3d at 589.

Scott,

Assault could be a lesser of Aggravated Assault if some evidence is in the record that says Defendant is only guilty of Assault. The charge is not automatic.

Take a look at Rousseau v State 855 S.W.2d 666 and Aguilar 682 S.W.2d 556.

You will hear reference to the Rousseau/Aguilar test when lessers come up.

Feel free to call to discuss if you need to -
979 964-1666

Phil Hall

Check out the cca's published op. on this topic today in Irving v. State:

http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=13054

It mirrors the unpublished case cited above.