                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-17-00179-CR



           CORY DON CROSBY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 52nd District Court
                Coryell County, Texas
              Trial Court No. 16-23730




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                    MEMORANDUM OPINION
        A Coryell County jury found Cory Don Crosby guilty of injury to a child.1 After Crosby

pled true to the State’s enhancement allegation, the trial court sentenced him to twenty years’

imprisonment and ordered him to pay a $5,000.00 fine. In his sole point of error on appeal, Crosby

argues that the trial court erred by failing to sua sponte instruct the jury on lesser-included offenses

of criminally negligent or reckless injury to a child.

        In Tolbert v. State, the Texas Court of Criminal Appeals explained that while trial courts

are obligated to prepare a jury charge that accurately states the law applicable to the case, a “trial

court ha[s] no duty to sua sponte instruct the jury on . . . lesser-included offense[s],” because they

are “not ‘applicable to the case’ absent a request by the defense for its inclusion in the jury charge.”

Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). In explaining why there is no duty

to sua sponte include lesser-included offenses in the jury charge, the Texas Court of Criminal

Appeals wrote that “lesser-included instructions are like defensive issues,” which “frequently

depend on trial strategy and tactics,” and counsel can engage in the valid trial strategy of the “all

or nothing” approach. Id. at 780, 781 (quoting Delgado v. State, 235 S.W.3d 244, 249–50 (Tex.

Crim. App. 2007)).

        Here, it is undisputed that Crosby’s counsel failed to request the inclusion of any lesser-

included offenses in the jury charge. “It is clear that the defense may not claim error successfully

on appeal due to the omission of a lesser included offense if the defense refrained from requesting


1
 Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

                                                       2
one.” Tolbert, 306 S.W.3d at 781 (quoting Delgado, 235 S.W.3d at 250). Because the trial court

has no duty to instruct the jury on lesser-included offenses in the absence of a request by the

defense, we overrule Crosby’s sole point of error.

       We affirm the trial court’s judgment.



                                               Bailey C. Moseley
                                               Justice

Date Submitted:       March 22, 2018
Date Decided:         March 23, 2018

Do Not Publish




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