MacDonald v. State ( 1989 )

J. CURTISS BROWN, Justice,

dissenting.

I respectfully dissent.

Appellant’s point that the lesser included offense of assault presents a jury question which should have been submitted to the trier of fact is well founded. The jury was entitled to pick and choose between parts of the testimony. A combination of the officer’s evidence of assault and the defendant’s denial of knowledge of the police officer’s status was sufficient to raise the lesser included offense of assault. If evidence from any source raises the issue of a lesser included offense it must be included in the charge. Ojeda v. State, 712 S.W.2d 742, 744 (Tex.Crim.App.1986).