No. 540-87.

750 S.W.2d 789 (1988)

Michael Wayne GOODIN, Appellant, v. The STATE of Texas, Appellee.

Court of Criminal Appeals of Texas, En Banc.

May 25, 1988.

Attorney(s) appearing for the Case

Travis W. Young, Fort Worth, for appellant.

Tim Curry, Dist. Atty., C. Chris Marshall and Betty Stanton, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.



Appellant was convicted by a jury of the offense of murder. The jury assessed punishment at confinement in the Texas Department of Corrections for forty three years. Appellant appealed to the Fort Worth Court of Appeals, and the conviction was affirmed. Goodin v. State, 726 S.W.2d 956 (Tex.App.-Fort Worth 1987). Appellant petitioned this Court for discretionary review to determine whether the court of appeals improperly held that the trial court properly refused appellant's requested jury instructions on aiding a suicide, conspiracy to commit murder and mistake of fact.

We have reviewed the decision of the court of appeals and find that the proper result was reached. We do not, however, agree with the Court of Appeals' language indicating that the determination of whether an instruction on a lesser included offense should be given should be based on whether the lesser included offense has elements not required for the primary offense. See generally, Cunningham v. State, 726 S.W.2d 151 (Tex.Cr.App.1987); Day v. State, 532 S.W.2d 302 (Tex.Cr.App. 1976). We therefore disclaim the language in the court of appeals' opinion which conflicts with Cunningham and Day, supra.

With this disclaimer, appellant's petition for discretionary review is refused. The decision of the court of appeals affirming the conviction is affirmed.


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