Opinion issued February 26, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00205-CR
                            ———————————
                   ANDRE DWAYNE TOLIVER, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Case No. 1576005


                          MEMORANDUM OPINION

      A jury found appellant, Andre Dwayne Toliver, guilty of aggravated

kidnapping and assessed his punishment at fifteen years’ incarceration. In his sole

issue on appeal, Toliver argues that the trial court erred by refusing to charge the
jury on the lesser-included offense of aggravated assault, a second-degree felony, as

requested by defense counsel. We affirm the trial court’s judgment.

                                     Background

      Toliver was charged by indictment with the aggravated kidnapping of his

wife, Jackalin Martinez. The indictment states, in pertinent part:

      Toliver . . . did then and there unlawfully, intentionally and knowingly
      abduct Jackalin Martinez, hereinafter styled the Complainant, without
      her consent, with intent to prevent her liberation by using and
      threatening to use deadly force, namely, shooting the complainant with
      a firearm, and during the commission of said offense [Toliver] used and
      exhibited a deadly weapon, namely, a firearm.

      On the second day of trial, during the State’s case-in-chief, Toliver moved for

an instruction on the lesser-included offense of aggravated assault. The trial court

correctly stated that it could not rule on trial counsel’s request because not all the

evidence was in. See TEX. CODE CRIM. PROC. art. 36.14 (setting time to object to

court’s charge as “before said charge is read to the jury”).

      After both sides rested their cases, the jury was removed, and the trial court

asked counsel, “Do we have a charge?” The court then went off the record. Once

back on the record, the trial court asked defense counsel if he had any objections to

the charge, and counsel answered: “We would just take exception to the Court’s

ruling on the lesser-included offenses. Other than that, no objections.” The trial court

responded, “All right, sir.”



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      The jury convicted Toliver of the only offense included in the jury charge—

the first-degree felony offense of aggravated kidnapping—and assessed him the

minimum punishment of fifteen years’ incarceration.

                           Preservation of Charge Error

      In his sole issue on appeal, Toliver argues that the trial court erred by refusing

to charge the jury on the lesser-included offense of aggravated assault, a

second-degree felony, as requested by defense counsel. The State argues that Toliver

has not preserved this issue for appeal.

A.    Standard of Review and Applicable Law

      The trial judge has a duty to prepare a jury charge that accurately sets out the

law applicable to the specific offense charged. Delgado v. State, 235 S.W.3d 244,

249 (Tex. Crim. App. 2007); TEX. CODE CRIM. PROC. art. 36.14 (“[T]he judge shall,

before the argument begins, deliver to the jury . . . a written charge distinctly setting

forth the law applicable to the case.”). The trial judge has the duty to instruct the jury

on the law applicable to the case even if defense counsel fails to object to inclusions

or exclusions in the charge. Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App.

2011). A jury instruction on a lesser-included offense, however, is not “applicable

to the case” absent a request by the defense for its inclusion in the jury charge. See

Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). The judge does not

have a duty, sua sponte, to instruct the jury on lesser-included offenses. Id.


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Accordingly, a defendant cannot complain on appeal about the trial judge’s failure

to include a lesser-included-offense instruction “that he did not preserve by request

or objection: he has procedurally defaulted any such complaint.” Vega v. State, 394

S.W.3d 514, 519 (Tex. Crim. App. 2013).

      To preserve a point of error regarding the trial court’s failure to include a

lesser-included offense instruction, a defendant must make a timely, specific

objection to the trial court’s charge. TEX. CODE CRIM. PROC. art. 36.14 (“Before said

charge is read to the jury, the defendant or his counsel shall have a reasonable time

to examine the same and he shall present his objections thereto in writing, distinctly

specifying each ground of objection”). A defendant must also obtain an adverse

ruling to preserve an article 36.14 complaint. Vasquez v. State, 919 S.W.2d 433, 435

(Tex. Crim. App. 1996). To properly request a lesser-included instruction, a

defendant must draw “the court’s attention to the particular complaint later raised on

appeal.” Starks v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003,

pet. ref’d, untimely filed). Such objection or request must be “in writing;” dictation

to a court reporter in the presence of the court and State’s counsel satisfies the

“writing” requirement. TEX. CODE CRIM. PROC. art. 36.14.

      Here, the record reflects that Toliver made a premature request for an

instruction on the lesser-included offense of aggravated assault before the close of

evidence. Toliver’s premature request for a lesser-included instruction, however, did


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not preserve this issue for appellate review. See Brewer v. State, 367 S.W.3d 251,

253 (Tex. Crim. App. 2012) (stating appellate courts “do not combine complaints to

meet the requirements for preservation; we view each complaint individually”).

Toliver also failed to obtain a ruling on his request. See Vasquez, 919 S.W.2d at 435.

The record also reflects that Toliver did not submit a written proposed instruction on

the lesser-included offense as required by article 36.14. Toliver, however, argues

that the issue is preserved because the Court can infer that counsel must have

renewed his untimely request for a lesser-included offense instruction on aggravated

assault, and that the trial judge must have denied the request during the portion of

the charge conference that was held off the record. It is improper, however, for this

Court to speculate with regards to what may or may not have transpired off the

record. See Cockrum v. State, 758 S.W.2d 577, 585 n.7 (Tex. Crim. App. 1988)

(“Perhaps, one of the unrecorded bench conferences would have reflected that some

question was prohibited by the trial judge. Such supposition on the part of this Court,

however, cannot substitute for what has actually found its way into the appellate

record”); see also Veras v. State, 410 S.W.3d 354, 357–58 (Tex. App.—Houston

[14th Dist.] 2013, no pet.) (“[T]his court cannot conclude that appellant preserved

error based upon speculation or supposition as to what may have occurred during a

bench conference at which no record was made”).




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      Because Toliver did not make a timely, specific objection to the trial court’s

charge in writing as required by article 36.14, we conclude that Toliver has not not

properly preserved his complaint, and thus, presents nothing for review.

      We overrule Toliver’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Russell Lloyd
                                              Justice


Panel consists of Justices Lloyd, Kelly, and Hightower.

Do Not Publish. TEX. R. APP. P. 47.2(b).




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