Henry Earl Hampton v. State, 08-13-00335-CR

Hampton was convicted by a jury of aggravated assault for cutting Dolston Bridges with a broken glass; the indictment charged simple assault causing bodily injury aggravated by use/exhibition of a deadly weapon (glass).
Witnesses uniformly described an escalating verbal dispute in a parking lot that culminated in a physical altercation; Bridges was hospitalized and required staples.
Key eyewitness Ruetta Featherston testified she saw Hampton holding a broken piece of glass, place Bridges in a bear hug, and jab the back of Bridges’ neck 5–10 times with the glass; Bridges did not fight back in her observation.
Other witnesses (Thornton, Fitzpatrick) described pushing, tussling, and later saw blood and a glass, but some testified they did not see Hampton holding the glass during parts of the altercation.
Hampton requested a jury instruction on the lesser-included offense of simple assault (Class A misdemeanor); the trial court denied the request and Hampton appealed the denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by refusing to submit simple assault as a lesser-included offense to aggravated assault	Hampton: testimony that some witnesses did not see a glass during parts of the fight and Bridges’ not remembering being hit supports that he might be guilty only of simple assault	State: affirmative eyewitness testimony shows Hampton intentionally used the broken glass as a deadly weapon; failures to observe the glass are not affirmative evidence negating weapon use	Court: No error — evidence supported aggravated assault only; no affirmative evidence that Hampton was guilty only of simple assault

Meru v. State, 414 S.W.3d 159 (Tex. Crim. App. 2013) (two-step test for lesser-included offense submission)
Cavazos v. State, 382 S.W.3d 377 (Tex. Crim. App. 2012) (evidence must affirmatively raise and be directly germane to lesser offense)
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (standard for evidence supporting lesser-included instruction)
Rice v. State, 333 S.W.3d 140 (Tex. Crim. App. 2011) (element comparison is a question of law independent of trial evidence)
Guzman v. State, 188 S.W.3d 185 (Tex. Crim. App. 2006) (clarifying factual inquiry for lesser-included offenses)
Moore v. State, 969 S.W.2d 4 (Tex. Crim. App. 1998) (credibility conflicts do not preclude submission analysis)
Barnett v. State, 344 S.W.3d 6 (Tex. App.—Texarkana 2011) (witnesses’ failure to perceive weapon is not affirmative evidence negating use)
Ex parte Watson, 306 S.W.3d 259 (Tex. Crim. App. 2009) (interpreting Article 37.09(1) lesser-included offense framework)