
 
 
 

 



 

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NOS. PD-0969-09 & PD-0811-09


JULIAN MARS MCKITHAN & RALPH FRANKLIN WELSH, Appellants


v.


THE STATE OF TEXAS




ON APPELLANTS' PETITIONS FOR DISCRETIONARY REVIEW
FROM THE FIRST & SECOND COURTS OF APPEALS

HARRIS & TARRANT COUNTIES



Hervey, J., delivered the opinion of the Court in which Keller, P.J.,  Meyers, 
Womack, Keasler, Holcomb and Cochran, JJ., joined.  Cochran, J., filed a concurring
opinion in which Holcomb, J., joined.  Price and Johnson, JJ., concurred.
 
O P I N I O N


	In these consolidated cases, we address whether, under the cognate-pleadings approach of
the step-one lesser-included-offense analysis set out in our decision in Hall v. State, 225 S.W.3d 525
(Tex.Cr.App. 2007), offensive-contact assault (1) is a lesser-included offense of the charged offense
of bodily-injury assault (2) in an indictment alleging bodily injury by "kicking" the complainant (Welsh,
PD-0811-09) and of the charged offense of aggravated sexual assault in an indictment alleging that
the complainant was compelled to submit and participate by the use of "physical force and violence"
(McKithan, PD-0969-09).  We also address McKithan's claim that bodily-injury assault is a lesser-included offense of the charged aggravated-sexual-assault offense.  We decide that offensive-contact
assault is a not lesser-included offense of the charged offenses in Welsh and in McKithan and that
bodily-injury assault also is not a lesser-included offense of the charged offense in McKithan.
	An indictment charged Welsh with committing bodily-injury assault by "kicking" the
complainant (Welsh's wife) with his foot. (3)  The trial court denied Welsh's request for a jury
instruction on the nonenhanceable Class C misdemeanor offense of offensive-contact assault. (4)  A
jury convicted Welsh of the charged third-degree felony of bodily-injury assault and sentenced him,
as an habitual offender, to eighteen years in prison. (5)
	Welsh claimed on direct appeal that he was entitled to a jury instruction on offensive-contact
assault as a lesser-included offense of the charged offense of bodily-injury assault.  The court of
appeals decided that offensive-contact assault is not a lesser-included offense of the charged bodily-injury-assault offense because, to establish that Welsh caused bodily injury to the complainant "by
kicking her with his foot, the State was not required to prove that Welsh knew or reasonably should
have believed that [the complainant] would regard the contact as offensive or provocative."  See
Welsh v. State,  No. 02-08-169-CR, slip op. at 4-5 (Tex.App.-Fort Worth, delivered May 21, 2009)
(not designated for publication).
	McKithan was charged with aggravated sexual assault in an indictment that in six paragraphs
alleged alternative manners and means of committing this offense.  The first paragraph of the
indictment alleged that McKithan sexually assaulted the complainant by placing his finger inside the
complainant's sexual organ and that McKithan compelled the complainant to submit and participate
by the use of "physical force and violence, and by acts and words the Defendant placed the
Complainant in fear that SERIOUS BODILY INJURY would be imminently inflicted on [the
complainant]." (6)  (Capitalization in original).  The first paragraph of McKithan's indictment
specifically alleged:
	The duly organized Grand Jury of Harris County, Texas, presents in the District
Court of Harris County, Texas, that in Harris County, Texas, JULIAN MARS
MCKITHAN, hereafter styled the Defendant, heretofore on or about DECEMBER
17, 2006, did then and there unlawfully, intentionally and knowingly cause the
penetration of the FEMALE SEXUAL ORGAN of [the complainant], hereinafter
called the Complainant, by placing A FINGER in the FEMALE SEXUAL ORGAN
of the Complainant, without the consent of the Complainant, namely, the Defendant
compelled the Complainant to submit and participate by the use of physical force and
violence, and by acts and words the Defendant placed the Complainant in fear that
SERIOUS BODILY INJURY would be imminently inflicted on [the complainant].

(Emphasis in bold and capitalization in original). (7)

	McKithan testified at trial and denied having sexual contact with the complainant, but
admitted assaulting her by, among other things, "slapping and punching" her.  The trial court denied
his request for jury instructions on bodily-injury assault and on offensive-contact assault. (8)  A jury
convicted McKithan of the charged aggravated-sexual-assault offense and sentenced him, as an
habitual offender, to life in prison. (9)
	We understand McKithan to have claimed on direct appeal that he was entitled to jury
instructions on bodily-injury assault and on offensive-contact assault as lesser-included offenses of
the charged aggravated-sexual-assault offense under the "physical force and violence" allegation in
the first paragraph of the indictment. (10)  The court of appeals rejected this claim because neither
"bodily injury" nor "offensive touching" are "within the elements of aggravated sexual assault as
charged in the indictment, which relied on assault by threat or kidnapping as aggravating factors." 
See McKithan v. State, No. 01-08-00222-CR, slip op. at 9 (Tex.App.-Houston [1st Dist.], delivered
June 4, 2009) (not designated for publication) ("However, we must address appellant's contention
that assault bodily injury and assault offensive touching were lesser-included offenses of aggravated
sexual assault as charged in the indictment.  Assault bodily injury requires proof that the defendant
caused bodily injury to the complainant; assault offensive touching requires proof that the defendant
knew or should have reasonably believed that the complainant would regard the contact as offensive
or provocative.  Neither of these elements are within the elements of aggravated sexual assault as
charged in the indictment, which relied on assault by threat or kidnapping as aggravating factors."). (11) 
	We granted discretionary review in these cases and consolidated them.  In Welsh, PD-0811-09, we granted review of the following ground:
	The Fort Worth Court of Appeals erred in holding that appellant was not entitled to
an instruction on the lesser included offense of assault by contact. (12)

In McKithan, PD-969-09, we granted review of the following ground:
	Was the Court of Appeals correct in saying assault-offensive touching-is not allowed
when the indictment says the defendant used force and violence against the
complainant? (13)

	Article 37.09(1), Tex. Code Crim. Proc., provides that an offense is a lesser-included
offense "if it is established by proof of the same or less than all the facts required to establish the
commission of the offense charged." (14)  In Hall, we adopted the cognate-pleadings approach for the
first step of the lesser-included offense analysis and recognized that this approach is compatible with,
and is "the better analysis" of, Article 37.09.  See Hall, 225 S.W.3d at 533 (Article 37.09 is
compatible with cognate-pleadings approach to lesser-included offenses) and at 535 (holding that
cognate-pleadings approach is the sole test for determining in the first step whether a party may be
entitled to a lesser-included-offense instruction) and at 537 (also recognizing that this is the "better
analysis" of Article 37.09) and at 539 (Hervey, J., dissenting) ("The Court's decision that Article
37.09(1) requires an examination of the statutory elements of the charged offense as they are
modified by the charging instrument in determining the 'facts required' to establish the commission
of the offense charged is consistent with the plain language of Article 37.09(1).").  We further stated
in Hall that the step-one lesser-included-offense analysis must be "capable of being performed before
trial by comparing the elements of the offense as they are alleged in the indictment or information
with the elements of the potential lesser-included offense."  See Hall, 225 S.W.3d at 535-36.  We
also stated in Hall that "the elements of the lesser offense do not have to be pleaded [in the
indictment] if they can be deduced from the facts alleged in the indictment."  See Hall, 225 S.W. 3d
at 535.
	In an opinion on rehearing in Ex parte Watson, we reaffirmed that Article 37.09(1) and Hall
control the step-one lesser-included-offense analysis.  See Ex parte Watson, 306 S.W.3d 259, 273
(Tex.Cr.App. 2009) (op. on reh'g).  The opinion on rehearing in Watson stated:
	We now reaffirm the principle that we, at least implicitly, recognized in Hall: An
offense is a lesser-included offense of another offense, under Article 37.09(1) of the
Code of Criminal Procedure, if the indictment for the greater-inclusive offense either:
1) alleges all of the elements of the lesser-included offense, or 2) alleges elements
plus facts (including descriptive averments, such as non-statutory manner and means,
that are alleged for purposes of providing notice) from which all of the elements of
the lesser-included offense may be deduced.  Both statutory elements and any
descriptive averments alleged in the indictment for the greater-inclusive offense
should be compared to the statutory elements of the lesser offense.  If a descriptive
averment in the indictment for the greater offense is identical to an element of the
lesser offense, or if an element of the lesser offense may be deduced from a
descriptive averment in the indictment for the greater-inclusive offense, this
should be factored into [the first step of] the lesser-included-offense analysis in
asking whether all of the elements of the lesser offense are contained within the
allegations of the greater offense.

Id. (footnotes omitted and emphasis supplied).

	This emphasized language from the opinion on rehearing in Watson is based on the statement
in Hall that "the elements of the lesser offense do not have to be pleaded [in the indictment] if they
can be deduced from the facts alleged in the indictment."  See Hall, 225 S.W. 3d at 535.  Our cases
have recognized that this statement from Hall approvingly describes what is essentially the
"functional-equivalence concept" as a valid component of the step-one lesser-included-offense
analysis set out in Hall.  See Evans v. State, 299 S.W.3d 138, 143 (Tex.Cr.App. 2009) (noting State's
concession "that Hall approved the use in the lesser-included-offense analysis of a concept similar
to functional equivalence when it stated that 'the elements of the lesser offense do not have to be
pleaded if they can be deduced from the facts alleged in the indictment.'") (emphasis added in
original). (15)  The "functional-equivalence concept" requires courts to "examine the elements of the
lesser offense and decide whether they are functionally the same or less than those required to prove
the charged offense."  See Farrakhan v. State, 247 S.W.3d 720, 722-23 (Tex.Cr.App. 2008) (internal
quotes omitted and emphasis in original) and at 724 ("When it used the term 'functional
equivalence,' the court [of appeals] employed the same two-step method of conducting such lesser-included-offense analyses in its opinion that we described in Hall shortly thereafter.").
	This is consistent with our decision in Salazar v. State in which we held that a habitation
"inherently" provides notice that entry is forbidden for purposes of determining whether criminal
trespass is a lesser-included offense of the charged burglary-of-a-habitation offense.  See Salazar v.
State, 284 S.W.3d 874, 875, 878 (Tex.Cr.App. 2009). (16)  In other words, the indictment's allegation
in Salazar of a "habitation" was functionally equivalent to an allegation of notice that entry into the
habitation was forbidden making this element of criminal trespass established by the facts required
(i.e., "habitation") to establish the charged burglary-of-a-habitation offense.  See id.  Thus, in cases
like this, where an allegation in the indictment is not identical to an element of the lesser offense,
the issue under Hall is whether the indictment's allegation is functionally equivalent to an element
of the lesser offense.  See Watson, 306 S.W.3d at 273 (op. on reh'g); Evans, 299 S.W.3d at 143;
Salazar, 284 S.W.3d at 878; Farrakhan, 247 S.W.3d at 722-23.
I. Is Bodily-Injury Assault or Offensive-Contact Assault a Lesser-Included Offense of the
Charged Offense in McKithan?

	The elements of bodily-injury assault are set out in Section 22.01(a)(1) of the Penal Code,
which provides that a person commits the offense of assault if the person causes bodily injury to
another.  The elements of offensive-contact assault are set out in Section 22.01(a)(3) of the Penal
Code, which provides that a person commits the offense of assault if the person causes physical
contact with another when the person knows or should reasonably believe that the other will regard
the contact as offensive or provocative.
	Initially, we note that McKithan has not claimed that the indictment's allegation that he
penetrated the complainant's sexual organ with his finger is the functional equivalent (or requires
proof) of bodily-injury assault or of offensive-contact assault. (17)  Rather, McKithan claims that these
offenses may be deduced or inferred from the  indictment's "physical force and violence" allegation. 
McKithan argues in his brief on discretionary review that "[i]t can certainly be inferred from the
indictment's allegation that [McKithan] used physical force and violence against the complainant
that he caused her pain-one definition of bodily injury" in Section 1.07(a)(8) of the Penal Code and
that "he would know that the complainant would find such contact offensive or provocative." (18)
	McKithan's arguments are based on the language from the opinion on rehearing in Watson
that it is relevant to the step-one lesser-included-offense analysis under Hall "if an element of the
lesser offense may be deduced (19) from a descriptive averment in the indictment for the greater-inclusive offense."  McKithan's arguments, however, read too much into this statement from the
opinion on rehearing in Watson, which, as we have already discussed, describes what is essentially
the "functional-equivalence concept" as a valid component of the step-one lesser-included-offense
analysis under Hall.  See also Evans, 299 S.W.3d at 143; Salazar, 284 S.W.3d at 878; Farrakhan,
247 S.W.3d at 722-24. (20)  The issue under Hall and Watson is not whether bodily-injury assault or
offensive-contact assault may be deduced or inferred from the indictment's allegation that McKithan
used "physical force and violence" but whether this allegation in the indictment is functionally
equivalent to an allegation of bodily-injury assault or to an allegation of offensive-contact assault
(i.e., whether, in establishing the "physical force and violence" allegation in the indictment, the State
was required to prove bodily-injury assault or offensive-contact assault).
	And we believe that settled case law supports a decision that the "physical force and
violence" allegation in McKithan's indictment is not functionally equivalent to an allegation of
bodily-injury and that the State was not required to prove bodily injury to establish this "physical
force and violence" allegation in McKithan's aggravated-sexual-assault indictment.  See Wisdom v.
State, 708 S.W.2d 840, 843 n.3 (Tex.Cr.App. 1986) (the terms "force" and "violence" are
"synonymous when used in relation to assault, and include any application of force even though it
entails no pain or bodily injury and leaves no mark"); Brown v. State, 576 S.W.2d 820, 822-23
(Tex.Cr.App. 1978) (defendant compelling complainant to submit to sexual intercourse by holding
a gun to her head sufficient to show force and threats); Trejo v. State, 242 S.W.3d 48, 50-52
(Tex.App.-Houston [14th Dist.] 2007) (aggravated assault not lesser-included offense of charged
aggravated-sexual-assault offense because serious bodily injury was not a "fact required" to establish
the "physical force and violence" and "threatening to use force and violence" allegations in the
indictment), overruled on other grounds, Trejo v. State, 280 S.W.3d 258 (Tex.Cr.App. 2009);
Edwards v. State, 97 S.W.3d 279, 291 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (explicit
verbal threats and physical injury are not required to prove that a defendant compelled the victim's
participation in a sexual assault by physical force and violence) (and cases cited); Gonzales v. State,
2 S.W.3d 411, 414-16 (Tex.App.-San Antonio 1999, no pet.) (defendant compelling the complainant
to submit to sexual intercourse by laying on top of the complainant and preventing her from moving
sufficient to show physical force and violence). (21)  The court of appeals, therefore, did not err to
decide that the trial court properly refused McKithan's requested jury instruction on bodily-injury
assault.
	We also believe that this case law supports a decision that the "physical force and violence"
allegation in McKithan's indictment is not functionally equivalent to an allegation of physical
contact and that the State was not required to prove physical contact in establishing this "physical
force and violence" allegation in McKithan's aggravated-sexual-assault indictment.  See Wisdom,
708 S.W.2d at 843 n.3 ("violence is a general term and includes all sorts of force"); Brown, 576
S.W.2d at 822-23 ( concept of force includes "physical force, threats, or some other type of coercion"
and the defendant compelling the complainant to submit to sexual intercourse by holding a gun to
her head sufficient to show force or threats); Robinson v. State, 149 S.W. 186, 187-88 (Tex.Cr.App.
1912) ("violence" is a general term and includes all sorts of force and noting that the term has also
been defined as "moving or acting with physical strength, urged or impelled with force, acting that
is characterized or produced by improper force").  The court of appeals, therefore, did not err to
decide that the trial court properly refused McKithan's requested jury instructions on offensive-contact assault.
II. Is Offensive-Contact Assault a Lesser-Included Offense of the Charged Offense in Welsh?

	Welsh argues that offensive-contact assault is a lesser-included offense of bodily-injury
assault "because the element of causing bodily injury [by kicking] is legally equivalent to the
complainant's regarding such contact as offensive or provocative."  We decide that the causing-bodily-injury-by-kicking allegation in Welsh's indictment is not functionally equivalent to an
allegation that Welsh knew or should reasonably have believed that the complainant would regard
this contact as offensive or provocative.  The State was not required to prove the latter (i.e., that
appellant knew or should reasonably have believed that the complainant would regard this contact
as offensive) to establish the former (i.e. that appellant caused the complainant bodily injury by
kicking).  See also Welsh, slip op. at 4-5 (offensive-contact assault is not a lesser-included offense
of the charged bodily-injury-assault offense as charged because, to establish that Welsh caused
bodily injury to the complainant "by kicking her with his foot, the State was not required to prove
that Welsh knew or reasonably should have believed that [the complainant] would regard the contact
as offensive or provocative").    In establishing the charged bodily-injury-assault offense, the State
was required to prove only that appellant caused the complainant bodily injury by kicking her.  It is
irrelevant whether the defendant knew or should have reasonably believed that the complainant
would consider this contact as offensive or provocative.
	We also note that this Court has stated that the three statutory definitions of simple assault
contained in Section 22.01(a)(1)-(3) of the Penal Code are "three distinct criminal offenses."  See
Landrian v. State, 268 S.W.3d 532, 540 (Tex.Cr.App. 2008). (22)  A contrary decision in this case
would be inconsistent with this legislative intent and would amount to a holding that, in every
bodily-injury-assault case involving physical contact, the State is required to prove, as an element
of that bodily-injury-assault case, that the defendant also knew or should have reasonably believed
that the complainant would regard that contact as offensive.
	Our opinion in Hall and the opinions by the court of appeals and by this Court in Farrakhan
support this decision.  See Farrakhan v. State, 263 S.W.3d 124, 132-40 (Tex.App.-Houston [1st
Dist.] 2006), aff'd by Farrakhan, 247 S.W.3d at 724.  In Farrakhan, this Court approved of the court
of appeals's pre-Hall lesser-included-offense analysis as being consistent with Hall.  See Farrakhan,
247 S.W.3d at 724 ("When it used the term 'functional equivalence,' the court [of appeals] employed
the same two-step method of conducting such lesser-included-offense analyses in its opinion that we
described in Hall shortly thereafter.  Thus, it reached the same result that Hall would have
mandated.").
	The issue in Farrakhan was whether the Class B misdemeanor offense of fleeing or
attempting to elude a police officer (23) is a lesser-included offense of the charged state-jail-felony
offense of evading detention by use of a motor vehicle. (24)  In relevant part, the indictment for the
state-jail-felony offense of evading detention by use of a motor vehicle alleged that the defendant
fled in a vehicle from a police officer who was attempting lawfully to arrest the defendant.  See
Farrakhan, 263 S.W.3d at 132.  Over the defendant's objection, the trial court instructed the jury
on the Class B misdemeanor offense of fleeing or attempting to elude a police officer, which
provides that a person commits this offense when "the person operates a motor vehicle and wilfully
fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle
when given a visual or audible signal to bring the vehicle to a stop."  See Farrakhan, 263 S.W.3d
at 129, 132 (internal quotes omitted).  This offense is further defined by stating that "the officer's
signal may be by hand, voice, emergency light, or siren, and the signaling officer must be uniformed,
prominently displaying his badge, and driving a vehicle that is appropriately marked as an official
police vehicle."  See id. (internal quotes omitted).
	Declining to follow the Fort Worth Court of Appeals's decision in Walker v. State, (25) the court
of appeals in Farrakhan decided that the State was not required to prove at least three elements of
the fleeing-or-attempting-to-elude-a-police-officer offense in establishing the charged evading-detention-by-a-motor-vehicle offense and that "the uncharged offense's elements requiring proof of
these three facts were neither the functional equivalents of the elements of the charged offense nor
were they included within the charged offense's elements."  See Farrakhan, 263 S.W.3d at 138-39. 
The court of appeals stated that it was irrelevant that the State may have proved the fleeing-or-attempting-to-elude-a-police-officer offense "in the process of proving the statutorily required
elements of evading detention is irrelevant."  The court of appeals stated:
	For example, as charged here, the offense of evading detention required that the State
prove only that appellant, by using a motor vehicle, intentionally fled from Officer
Roi when appellant knew that Officer Roi was a peace officer attempting to detain
him lawfully.  That offense did not require the State to prove, for example, that
Officer Roi was in a vehicle of any kind (as unusual as that scenario might be when
the suspect is in a vehicle); that the officer was uniformed and prominently
displaying his badge; or that, if the officer was using a vehicle, that vehicle was
appropriately marked as an official police vehicle.  The fact that the State did prove
these things in the process of proving the statutorily required elements of evading
detention is irrelevant.  We respectfully disagree with the Walker court's conclusion
to the contrary because its conclusion appears to have rested on what evidence the
State actually presented, rather than on what evidence the State was required to
present, to prove the charged offense.

See Farrakhan, 263 S.W.3d at 139 (emphasis in original, footnotes and citation to authority
omitted).

	In Hall, we decided that aggravated assault by threatening another with imminent bodily
injury by displaying a gun was not a lesser-included offense of murder as charged in an indictment,
which, in relevant part, alleged that the defendant caused the death of an individual by shooting him
with a gun.  We decided in Hall that the "threatening" and "display" elements of the aggravated-assault lesser offense were not "facts required" to establish the charged murder offense even though
"the evidence may show threatening and display."  See Hall, 225 S.W.3d at 536-37. (26)  In Hall, we
stated:
	The facts required to prove the lesser offense include two that are not the same as,
or less than, those required to establish the offense charged: threatening and display.

	It is true that the evidence may show threatening and display.  The evidence may
show a number of other lesser offenses as well, such as disorderly conduct by
discharging a firearm in a public place or across a public road or by displaying a
firearm in a public place in a manner calculated to alarm, unlawfully carrying of
weapon, or unlawful possession of weapon.  But those offenses likewise are not
established by the same or less than the proof required to prove the allegations in the
indictment for murder.  Aggravated assault by threat, like the other offenses
mentioned, requires proof of additional facts.

See Hall, 225 S.W.3d at 536-37 (emphasis supplied and footnotes omitted).

	In Farrakhan, we approved of the court of appeals's decision that the "fleeing" offense was
not a lesser-included offense of the charged "evading" offense even though proof of the charged
"evading" offense may also have shown the "fleeing" offense.  See Farrakhan, 247 S.W.3d at 722-23; Farrakhan, 263 S.W.3d at 138-39.  In Hall, we decided that the aggravated-assault-by-threat
offense was not a lesser-included offense of the charged murder offense even though proof of the
charged murder offense may also have shown the aggravated-assault-by-threat offense.  See Hall,
225 S.W.3d at 536-37.  These were not lesser-included offenses of the charged offenses in both of
these cases because the State was not required to prove these offenses in establishing the charged
offenses, even though the State's evidence may have shown them.  See id.; Farrakhan, 263 S.W.3d
at 138-39.
	Thus, as in Farrakhan and Hall where the facts required to show the charged offenses may
also have shown "a number of other lesser offenses as well," (27) it is not dispositive that the evidence
in Welsh's bodily-injury-assault case may also have shown offensive-contact assault.  Compare
Farrakhan, 263 S.W.3d at 139 (charged offense "did not require the State to prove, for example, that
Officer Roi was in a vehicle of any kind (as unusual as that scenario might be when the suspect is
in a vehicle)").  The relevant inquiry is not what the evidence may show but what the State is
required to prove to establish the charged offense.  See Hall, 225 S.W.3d at 536-37 (State not
required to prove threatening and display even though these may be shown by the evidence);
Farrakhan, 263 S.W.3d at 139 (relevant inquiry is based on "what evidence the State was required
to present, to prove the charged offense" and that "the State could and did present evidence" of a
lesser offense "does not mean that the State was required to do so") (emphasis in original). (28)  And,
in Welsh's case, we have decided that the State was not required to prove offensive contact in
establishing the charged bodily-injury-assault offense (even though the State's evidence may have
shown offensive contact).
	The judgments of the courts of appeals in McKithan and in Welsh are affirmed.

								Hervey, J.

Delivered: November 10, 2010
Publish
1. 	See § 22.01(a)(3), Tex. Penal Code (person commits an assault if person "causes physical
contact with another when the person knows or should reasonably believe that the other will regard
the contact as offensive or provocative").
2. 	See § 22.01(a)(1), Tex. Penal Code (person commits an assault if person causes bodily
injury to another person); § 1.07(a)(8), Tex. Penal Code ("bodily injury" means "physical pain,
illness, or any impairment of physical condition").
3. 	Welsh's indictment also alleged that the complainant was a family or household member and
that Welsh had previously been convicted of bodily-injury assault against a family or household
member, which enhanced Welsh's punishment range from a Class A misdemeanor to a third-degree
felony.  See § 22.01(b)(2)(A), Tex. Penal Code.
4. 	See § 22.01(c), Tex. Penal Code.
5. 	See § 12.42(a)(3), Tex. Penal Code.
6. 	See §§§§ 22.021(a)(1)(A), 22.021(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) Tex. Penal Code
(person commits aggravated sexual assault if person causes the penetration of the sexual organ of
another person by any means without that other person's consent by compelling that other person
to submit or participate by the use of physical force or violence and the person by acts or words
places the other person in fear of imminent serious bodily injury).
7. 	The five additional paragraphs in the indictment alleged aggravated sexual assault by other
manner and means.  For example, paragraph two of the indictment was identical to paragraph one
except that it alleged that "by acts and words the Defendant placed the Complainant in fear that
KIDNAPPING would be imminently inflicted on [the complainant.]."  (Capitalization in original). 
See §§§§ 22.021(a)(1)(A), 22.021(a)(2)(A)(ii), 22.021(c), 22.011(b)(1) Tex. Penal Code.  We
further note that McKithan argued in his discretionary-review petition that the "other [four]
paragraphs were variations of the[] themes" in the first two paragraphs.
8. 	The record reflects that McKithan  requested jury instructions on the lesser-included offenses
"of assault, bodily injury, and assault defensive touching."  The State argues on discretionary review
that McKithan failed to preserve the claim that he was entitled to a jury instruction on offensive-contact assault because McKithan requested an instruction on "defensive touching" and "there is no
such offense in the Penal Code."  We note that the State did not make this preservation-of-error
claim in the court of appeals and that the court of appeals addressed the merits of McKithan's claim
that he was entitled to a jury instruction on offensive-contact assault.  See McKithan, slip op. at 3
n.3 (stating that it understood "appellant's objection to be 'assault, offensive touching'") (emphasis
in original).  We reject the State's preservation-of-error claim.
9. 	See §§ 12.42(d), 22.01(e), Tex. Penal Code.
10. 	We express no opinion on whether these are lesser-included offenses under the other
paragraphs of the indictment.  See Hall, 225 S.W.3d at 531 ("This court has said on a number of
occasions that when the greater offense may be committed in more than one manner, the manner
alleged will determine the availability of lesser-included offenses."); cf. Feldman v. State, 71 S.W.3d
738, 750-54 (Tex.Cr.App. 2002) (in capital-murder prosecution alleging two alternative means of
committing the offense, defendant not entitled to lesser-included-offense instruction on murder,
under the second step of lesser-included-offense analysis, without evidence negating both alternative
means of committing the offense).
11. 	McKithan argues in his brief on discretionary review that the court of appeals erred by
focusing exclusively on the "aggravating factors" alleged in the indictment and ignoring the
allegation of "physical force and violence," which, according to McKithan, "without regard to any
aggravating factors-provide[s] the basis for deducing the elements of the lesser offenses."  McKithan
argues:

	The first error, as is apparent from the language of the [court of appeals's] holding
above, is that the court of appeals focused exclusively on the "aggravating factors"
alleged in the indictment.  This is hard to understand, because Appellant's brief
specifically called the court's attention to the first paragraph of the indictment: "The
first paragraph then alleged that Appellant 'compelled the Complainant to submit and
participate by the use of physical force and violence, and by acts and words the
Defendant placed the Complainant in fear that serious bodily injury would be
imminently inflicted on [the complainant].'" The first portion of that paragraph states
an essential element of sexual assault; is not "an aggravating factor."

	The offense of sexual assault under Penal Code Sec. 22.011(a)(1)(A) requires proof
that the assaultive conduct on the other person is "without that person's consent," and
subsection (b) prescribes 11 ways in which that element must be established.  The
first way in which it may be alleged that the assaultive conduct was "without
consent" is set out in subsection (b)(1), and the State included that language in
Appellant's indictment, alleging that in causing physical contact with the
complainant he "compelled the complainant to submit and participate by the use of
physical force and violence."  It makes absolutely no difference that the indictment
"relied on assault by threat or kidnapping as aggravating factors," as the lower court's
opinion stated.  (See quoted portion, supra) If the allegations of the indictment, less
the aggravating factors, less any factors and any number of factors in the abstract,
permit a deduction of a lesser offense on those reduced facts, then the cognate
pleadings test [set out in Hall] is satisfied.  In this case it happens that the allegations
of the sexual assault-without regard to any aggravating factors-provide the basis for
deducing the elements of the lesser offenses.

(Emphasis in underline in original).
12. 	The parties have cited published and unpublished intermediate appellate court decisions that
the parties assert demonstrate conflicting intermediate-appellate-court decisions on this issue. 
Compare Aguilar v. State, 263 S.W.3d 430, 434-36 (Tex.App.-Houston [1st Dist.] 2008, pet. ref'd)
(aggravated-robbery indictment alleging that the defendant caused bodily injury "by striking [the
complainant] in the head with his fist" did not include offensive-contact assault because the "facts
required to prove [offensive-contact] assault include two that are not the same as, or less than, those
required to establish the aggravated robbery: that the contact was offensive or provocative and that
[the defendant] knew or should have known that the contact was offensive or provocative"); Ramos
v. State, 981 S.W.2d 700, 701 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (same with respect to
charged offenses of aggravated sexual assault by penetration and indecency by contact because
neither of these two offenses, as charged, required "proof that the defendant knew or reasonably
believed that the complainant would regard the contact as offensive or provocative at the time of the
contact") with In re A.E.B., 255 S.W.3d 338, 345-47 (Tex.App.-Dallas 2008, pet. dism'd)
(attempted-sexual-assault indictment alleging that juvenile "knocked O.P. [the complainant] to the
ground and physically overpowered her" included offensive-contact assault because "the conduct
element of attempted sexual assault alleged-knocking O.P. to the ground and physically
overpowering her-includes the conduct element of assault-causing physical contact with O.P. when
he knew or should reasonably have believed that O.P. would have regarded the contact as offensive
or provocative").
13. 	McKithan also claims in his brief on discretionary review, as he did in the trial court, in the
court of appeals and in his discretionary-review petition, that bodily-injury assault is also a lesser-included offense of the charged aggravated-sexual-assault offense.  We will address this claim.
14. 	Emphasis supplied.
15. 	This "functional-equivalence concept" appears to be synonymous with the concepts of
"necessary inclusion" or "subsumption of elements."  See Evans, 299 S.W.3d at 143. 
16. 	In Salazar, we stated:

	In this case, the Court of Appeals did correctly identify Hall as the controlling
standard for assessing lesser-included offenses.  However, in its analysis of the first
step, the Court determined that the legal elements of criminal trespass were not
comparable to the elements of burglary of a habitation as they were alleged in the
indictment.  According to the Court, the notable element absent from the indictment
was notice of forbidden entry, which is a requirement of criminal trespass and yet
nowhere mentioned in the indictment.  In this case, however, it would not have been
necessary to expressly include the language of notice in the indictment because notice
is inherent in a "habitation."  Further, pursuant to Hall, "the elements of the lesser
offense do not have to be pleaded if they can be deduced from the facts alleged in the
indictment."  We believe it can be deduced from the indictment, that the appellant
had notice, quite simply, because notice is inherent to a habitation and the indictment
read "burglary of a habitation."

See Salazar, 284 S.W.3d at 878 (footnotes omitted and emphasis in original).
17. 	This could be because McKithan determined that he would not have been entitled to jury
instructions on these offenses under the step-two lesser-included-offense analysis under Hall, since
McKithan testified at trial and denied that he penetrated the complainant's sexual organ with his
finger.  See Hall, 225 S.W.3d at 536 (evidence presented at trial is important to step-two lesser-included-offense analysis).  We express no opinion on whether the allegation in McKithan's
indictment that he penetrated the complainant's sexual organ with his finger required the State to
prove bodily-injury assault or offensive-contact assault.
18. 	For example, McKithan argues:

	[T]he language alleging sexual assault in this indictment clearly implies the elements
of Penal Code Sec. 22.01(a)[3], assault by causing physical contact with another
when the actor knows or reasonably should believe the other person will regard the
contact as offensive, as a possible lesser offense.  It takes no great leap of the
imagination to infer-that is, to deduce from the language of the indictment-that the
complainant would regard as offensive [McKithan's] physical contact, which the
indictment alleged that he compelled her to submit to, by the use of force and
violence, and that [McKithan] did know or reasonably should have known she would
regard it as offensive.
19. 	We note that "infer" is a definition and synonym of the term "deduce."  See Roget's Desk
Thesaurus 133 (2001); Webster's II New Collegiate Dictionary 294 (1999).
20. 	We also note that McKithan's reading of the opinion on rehearing in Watson would be
inconsistent with the "facts required" language in Article 37.09(1) and would change this "facts
required" language into "facts deduced or inferred."  See Hall, 225 S.W.3d at 534 (disapproving of
interpretation of Article 37.09(1) that negates the language of Article 37.09(1) "by changing 'facts
required' into 'facts presented'") (quoting Jacob v. State, 892 S.W.2d 905, 908 (Tex.Cr.App. 1995)).
21. 	McKithan also argues that this Court's decision in Schmidt v. State "comes close to holding"
that bodily-injury assault is the legal equivalent to the "physical force and violence" allegation in the
indictment.  See Schmidt v. State, 278 S.W.3d 353 (Tex.Cr.App. 2009).  We understand McKithan
to claim that Schmidt decided that "striking" someone is the "legal equivalent of causing bodily
injury" which, according to McKithan, would support deciding that "physical force and violence"
is also the "legal equivalent of causing bodily injury."  In Schmidt, we assumed without deciding that
the defendant's act of "striking" the complainant was "the legal equivalent of causing bodily injury,"
because the State did not challenge that decision by the court of appeals.  See Schmidt, 278 S.W.3d
at 356 n.6.  
22. 	See § 22.01(a)(1) (bodily-injury assault); § 22.01(a)(2) (assault by threatening another with
imminent bodily injury); § 22.01(a)(3) (offensive-contact assault).
23. 	See § 545.421(a), Tex. Transp. Code.
24. 	See § 38.04(a), Tex. Penal Code.
25. 	95 S.W.3d 516, 519 (Tex.App.-Fort Worth 2002, pet. ref'd) (deciding that offense of fleeing
or attempting to elude a police officer is a lesser-included offense of evading detention by use of a
motor vehicle).
26. 	Hall, therefore, decided that shooting and killing a person with a gun is not, in a step-one
lesser-included-offense analysis, functionally equivalent to threatening that person with imminent
bodily injury by displaying a gun.
27. 	See Hall, 225 S.W.3d at 536.
28. 	These same considerations apply in McKithan's case since the State's proof of a "physical
force and violence" indictment allegation in McKithan's case may also have shown bodily injury and
offensive contact. 
