Opinion
No. 05-10-00883-CR
Opinion issued November 3, 2011. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause No. F09-62082-H.
Before Justices MORRIS, O'NEILL, and FILLMORE.
OPINION
A jury convicted Kenneth Tyrell Winslow of theft, enhanced by two prior theft convictions, and sentenced him to two years' confinement. In a single issue on appeal, Winslow argues the trial court erred in failing to instruct the jury on the lesser-included offense of attempted theft. We affirm the trial court's judgment.
Background
Between 8:00 and 9:00 p.m. on December 9, 2009, Winslow was in a Radio Shack store in Dallas, Texas. At that time, an off-duty Dallas Police Department patrol officer, Steve Potrykus, was working as a security guard for an adjacent store. Officer Potrykus was in the parking lot when he looked into the Radio Shack front window and noticed Winslow. Officer Potrykus testified that Winslow "looked suspicious" and was "looking over his shoulder and such," so Officer Potrykus "kept an eye on him." Winslow began walking toward the Radio Shack front door with items in his hand that he was concealing from store employees. The items were not in a bag, and Officer Potrykus did not see Winslow carrying a purchase receipt. Winslow walked out the store's front door with the items. Upon exiting the store, Winslow saw Officer Potrykus and "his eyes got real big like he was surprised." Officer Potrykus told Winslow to "stop and come here." Instead, Winslow turned and walked back toward the Radio Shack. Officer Potrykus yelled to Winslow, "Hey, I told you to come here." Officer Potrykus testified that Winslow acted very nervous, leading Officer Potrykus to believe that a theft had taken place. Winslow re-entered the Radio Shack and Officer Potrykus followed him into the store. Winslow told Officer Potrykus that he was taking the items outside to a friend waiting in the parking lot to determine whether the items were suitable. After taking Winslow into custody, Officer Potrykus spoke with the store manager, Juan Marquez. Marquez advised Officer Potrykus that Winslow did not have permission to take the items outside the store, and he wished to prosecute Winslow for taking the items. Marquez testified that Winslow came into the Radio Shack store near its closing time. He asked about wireless video game controllers and was directed to the location in the store where the controllers were stocked. Marquez went to the back of the store to finish preparing his nightly deposit. The two employees who remained in the front of the store came to Marquez and told him that Winslow was in handcuffs in the store and that Winslow had tried to steal the controllers he had been shown. Marquez spoke with Officer Potrykus who told him that Winslow was "trying to walk out with the controllers." After telephoning his district manager, Marquez confirmed that he wanted to press criminal charges against Winslow. According to Marquez, the store policy is that if a store patron desires to take merchandise out of the store before purchasing the merchandise, a store employee accompanies the patron. Marquez testified that Winslow did not have permission to take the controllers out of the store. Winslow testified at trial. According to Winslow, his friend drove him to the Radio Shack store because they were looking for video game controllers. While the store manager was checking on the availability of PlayStation brand controllers at other Radio Shack stores, Winslow took Gigaware brand controllers from the store to show to his friend. Winslow testified he went back into Radio Shack and was standing at the counter when a police officer came into the store with his handcuffs displayed. Winslow testified he did not see Officer Potrykus until after he re-entered the store. Winslow acknowledged he exited the store without paying for the controllers, but he testified that he did not intend to steal them. Thirty-three years of age at the time of trial, Winslow testified that he had been in and out of jail since high school. He admitted to the two prior felony theft enhancements. The jury convicted Winslow of theft, and this appeal followed.Discussion
In a single issue, Winslow argues the trial court abused its discretion by failing to provide the jury with an instruction on the lesser-included offense of attempted theft. Winslow contends evidence supported a jury instruction that if he was guilty of an offense, he was guilty only of attempted theft. Therefore, according to Winslow, the trial court should have exercised its discretion to sua sponte instruct the jury on attempted theft. Jury charge error is reviewed under the standard set out in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Under that standard, we first determine whether there was error in the charge. Almanza, 686 S.W.2d at 174. If error occurred and the appellant objected at trial, the reviewing court then determines whether the error was "calculated to injure" the appellant's rights, which means no more than there must be "some harm" to the accused resulting from the error. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza, 686 S.W.2d at 171). If the appellant did not object, the reviewing court will reverse only if the error was "fundamental" and so "egregious" that the appellant was denied a fair and impartial trial. Id. (quoting Almanza, 686 S.W.2d at 171). The purpose of the jury charge is to inform the jury of the applicable law and guide the jurors in applying the law to the facts of the case. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). The charge must allow the jury to determine guilt in light of the evidence and the law. Id. Under article 36.14 of the code of criminal procedure, a trial judge shall deliver to the jury: a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); see also Taylor v. Sate, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). A judge's duty to properly charge the jury exists even when defense counsel fails to object to inclusions or exclusions in the charge and, thus, the judge may be required to sua sponte instruct the jury on the law applicable to the case. Id. The sua sponte duty of the trial judge to instruct the jury on the law applicable to the case does not necessarily extend to all potential defensive issues, lesser-included offenses, or evidentiary issues. Generally, such issues depend on trial strategy and tactics and are "law applicable to the case" for purposes of article 36.14 only if raised by the evidence and requested to be included in the charge. Delgado v. State, 235 S.W.3d 244, 249-51 (Tex. Crim. App. 2007). In Delgado, the court of criminal appeals stated: The trial judge has an absolute sua sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged. But it does not inevitably follow that he has a similar sua sponte duty to instruct the jury on all potential defensive issues, lesser-included offenses, or evidentiary issues. These are issues that frequently depend upon trial strategy and tactics. 235 S.W.3d at 249-50 (footnote omitted). In Tolbert v. State, 306 S.W.3d 776 (Tex. Crim. App. 2007), the court of criminal appeals stated that "lesser-included instructions are like defensive issues and that a trial court is not statutorily required to sua sponte instruct the jury on lesser-included offenses because these issues `frequently depend upon trial strategy and tactics.'" 306 S.W.3d at 780 (quoting Delgado v. State, 235 S.W.3d at 249-50. On appeal, Winslow acknowledges that a trial court has no duty to sua sponte instruct on lesser-included offenses, even when those offenses are raised by the evidence, and that neither he nor the State requested inclusion of a charge on any lesser-included offense. Further, Winslow did not object to the absence of an instruction on the lesser-included offense of attempted theft from the charge. A lesser-included offense is not generally considered to be "law applicable to the case," and therefore, a party's failure to request its inclusion in the jury charge is not considered charge error but, rather, waives the party's ability to raise the issue on appeal. See Tolbert, 306 S.W.3d at 780-81; see also Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (a "defensive issue" is not "applicable to the case for purposes of article 36.14 unless the defendant "timely requests the issue or objects to the omission of the issue in the jury charge); Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (defendant preserves error if a request is specific enough to put the trial court on notice of an omission or error in the charge). Winslow did not assert his complaint about the charge at trial and has, therefore, failed to preserve it for our review. See Tex. R. App. P. 33.1(a) (to preserve a complaint for appellate review, a party must make a timely and specific objection and obtain an express or implied ruling on that objection). We conclude on this record that the trial court had no duty to sua sponte instruct the jury on the lesser-included offense of attempted theft and that a jury instruction on this lesser-included offense was not "applicable to the case" absent a request by the defense for its inclusion in the charge. See Tolbert, 306 S.W.3d at 782. Accordingly, there was no charge error to which Almanza's harm analysis would apply. See Almanza, 686 S.W.2d at 171; Posey, 966 S.W.2d at 61 (stating that Almanza does not apply unless the appellate court first finds error in the jury charge). We overrule Winslow's sole issue. We affirm the trial court's judgment.See also Delagarza v. State, No. 05-09-00647-CR, 2011 WL 3484797, at *9 (Tex. App.-Dallas Aug. 10, 2011, no pet. h.) (mem. op., not designated for publication) (sua sponte duty does not necessarily extend to issues dependent on strategy or tactics such as defensive issues, lesser-included offenses, or evidentiary issues; generally, such issues are "law applicable to the case" for purposes of article 36.14 only if raised by the evidence and requested to be included in the charge).
On appeal, Winslow notes he is not suggesting trial counsel was ineffective for failing to request a charge on the lesser-included offense of attempted theft and acknowledges trial counsel may have had a valid strategy in not requesting a charge on attempted theft.
See also Hills v. State, No. 03-09-00166-CR, 2010 WL 2330310, at *1 (Tex. App.-Austin June 11, 2010, pet. dism'd) (neither lesser-included offenses nor defensive issues are considered "law applicable to the case," and a party's failure to request their inclusion in the jury charge is not considered charge error but, rather, waives the party's ability to raise those issues on appeal)