Butler v. State

ON MOTION FOR REHEARING

MORRISON, Judge.

In a forceful motion and in argument, appellant’s able attorney has reasserted his contention that, because aggravated assault is a lesser and included offense to the offense of robbery and was the offense charged in one count of the indictment, the jury should have been charged that they might find the accused guilty of aggravated assault. Appellant contends that Stevens v. State, 138 Texas Cr. Rep. 59, 134 S.W. 2d 246, supports such view of the law. With this contention we cannot agree. It should be noted that in the Stevens case we said, “In fact, a…