Irving v. State

OPINION

in which PRICE, WOMACK, JOHNSON, and COCHRAN, JJ., joined.

We withdraw our opinion of April 27, 2005 and substitute the following opinion. Appellant’s motion for rehearing is overruled.

Appellant Charles Ray Irving was convicted of the offense of aggravated assault. On appeal, Appellant argued that the trial court erred in failing to instruct the jury on the lesser-included offense of simple assault. The Ninth Court of Appeals held that Appellant was entitled to an instruction on the lesser-included offense and reversed and remanded the case to the trial court. We will reverse.

I. Facts

The…