Edward Cornell Knight v. State, 504 S.W.3d 524

Appellant Edward Cornell Knight lived separately from his wife Nancy; on July 15, 2014 he visited her home where an argument followed after Nancy discovered incriminating texts on his phone.
After a confrontation in the bathroom (including Appellant punching a hole in the door), Appellant threatened Nancy to retrieve his keys; she found them in his van and returned them.
Appellant threatened to shoot Nancy, went inside to retrieve a gun, returned, pointed the gun at her through her car window, said “I’m going to shoot you, b**ch,” fired once hitting the car roof, then left; a jury convicted him of aggravated assault with a deadly weapon.
Appellant was sentenced to nine years’ confinement and appealed, raising two points of error related to the jury charge: (1) omission of felony deadly conduct as a lesser-included offense and (2) inclusion of statutorily required parole/good-conduct instructions at punishment.
The trial court denied the requested lesser-offense instruction; the court of appeals reviewed whether felony deadly conduct is a lesser-included offense of aggravated assault by threat when the indictment alleges use or exhibition of a weapon.

Issue	Appellant's Argument	State's Argument	Held
Whether felony deadly conduct is a lesser-included offense of aggravated assault by threat (indictment alleges use/exhibit of weapon)	Felony deadly conduct should be submitted; facts showed discharge so jury could convict of that lesser offense	Felony deadly conduct requires proof of discharge; indictment only alleged use/exhibit, so discharge is not an element of the charged offense	Court held no error: felony deadly conduct is not a lesser-included offense under the cognate-pleadings test because the indictment did not allege discharge
Whether the punishment charge (statutory parole/good-conduct language) violated due process	Inclusion of the statutorily required language violated due process	The court must follow controlling precedent upholding the statute; the language is not unconstitutional	Court overruled the claim, following Luquis; the statutory instruction does not violate due process

Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (adopts cognate-pleadings standard—compare indictment elements, not trial evidence, to determine lesser-included offenses)
Luquis v. State, 72 S.W.3d 355 (Tex. Crim. App. 2002) (upholds constitutionality of statutory good-conduct/parole jury instruction)
Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (discusses deducing lesser-offense elements from charging instrument under article 37.09)
Day v. State, 532 S.W.2d 302 (Tex. Crim. App. 1976) (early construction of article 37.09; noted historical confusion resolved by later cases)
Meru v. State, 414 S.W.3d 159 (Tex. Crim. App. 2013) (discusses "functional-equivalence" approach to deducing elements from an indictment)
Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App. 1995) (authority cited for comparing elements, not evidence, in lesser-included analysis)
Rogers v. State, 38 S.W.3d 725 (Tex. App. — Texarkana 2001) (holds felony deadly conduct requires discharge; not a lesser-included offense when aggravated assault alleges only use/exhibit)
Franklin v. State, 992 S.W.2d 698 (Tex. App. — Texarkana 1999) (similar holding that aggravated assault alleging use/exhibit does not necessarily include felony deadly conduct)