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                                    MEMORANDUM OPINION

                                Nos. 04-08-00280-CR & 04-08-00281-CR

                                            Robert CARRASCO,
                                                 Appellant

                                                       v.

                                           The STATE of Texas,
                                                 Appellee

                       From the 399th Judicial District Court, Bexar County, Texas
                           Trial Court Nos. 2007-CR-5104 & 2007-CR-5105
                         Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:        Marialyn Barnard, Justice

Sitting:           Rebecca Simmons, Justice
                   Steven C. Hilbig, Justice
                   Marialyn Barnard, Justice

Delivered and Filed: February 25, 2009

AFFIRMED

           Robert Carrasco was convicted by a jury of first degree arson and deadly conduct. The sole

issue presented in these appeals is whether the trial court erred in failing to instruct the jury on the

lesser-included offense of third degree arson. We affirm the trial court’s judgments.

           Carrasco contends that the trial court erred in failing to instruct the jury on the lesser-included

offense of third degree arson because evidence was presented that Carrasco acted recklessly rather
                                                                     04-08-00280-CR & 04-08-00281-CR

than with intent or knowledge. Acknowledging that he did not make a request for the inclusion of

the lesser-included offense, Carrasco argues that reversal is required under Almanza v. State, 686

S.W.2d 157 (Tex. Crim. App. 1986), because the record establishes egregious harm.

       In Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim. App. 2007), the Texas Court of

Criminal Appeals analyzed a trial court’s sua sponte duties with regard to preparing a jury charge

where defense counsel does not request a lesser-included offense. The court asserted:

               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. . . . . Thus, if neither
       side requests a lesser included instruction, the trial court need not submit one sua
       sponte.

Id. Because the trial court was not required to sua sponte include an instruction on third degree

arson, no error existed in the charge; therefore, no analysis of harm is warranted under Almanza. See

Stewart v. State, 162 S.W.3d 269, 375 (Tex. App.—San Antonio 2005, pet. ref’d) (noting Almanza

requires two-step review where error must actually exist in the charge before the court must

determine whether sufficient harm resulted from the error to require reversal).

       The trial court’s judgments are affirmed.

                                                       Marialyn Barnard, Justice

DO NOT PUBLISH




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