Opinion issued April 2, 2020




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                               NO. 01-19-00133-CR
                            ———————————
                         MARIO AGUILAR, Appellant
                                        V.

                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 230th District Court
                            Harris County, Texas
                        Trial Court Case No. 1564632


                          MEMORANDUM OPINION

      A jury convicted appellant, Mario Aguilar, of the offense of aggravated

robbery.1 After finding true an enhancement allegation that appellant was previously




1
      See TEX. PENAL CODE §§ 29.02(a)(2), 29.03(a)(2).
convicted of aggravated assault with a deadly weapon, the jury assessed appellant’s

punishment at confinement for 35 years. The trial court entered an affirmative

finding that appellant used or exhibited a deadly weapon, namely, a firearm, in the

commission of the robbery. In his sole issue, appellant contends that the trial court

erred in failing to instruct the jury on a lesser-included offense of unauthorized use

of a motor vehicle and on the law of parties, as it related to his defensive issue.

      We affirm.

                                     Background

      At approximately 1:00 p.m. on September 12, 2017, the complainant, C.A.,

left his house to drive to his high school. While driving in his neighborhood, he saw

appellant walking in the middle of the street.      When the complainant stopped to

avoid hitting him, appellant approached the driver’s door of the complainant’s truck

and pointed a firearm through the open window and at his face. The complainant

described the firearm as a black and silver Glock handgun.              Appellant said,

“Disculpa, niño,” meaning, “excuse me, kid, or sorry, kid.” The complainant

testified that, fearing for his life, he parked and got out. Appellant got into the truck,

drove further up the street, stopped and picked up a woman, and drove away. The

complainant walked home and called the police.

      The complainant further testified that he recognized appellant as a neighbor.

The complainant regularly drove past appellant’s house, saw appellant there, and


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saw appellant walking on the street. When police officers arrived, the complainant

gave them a description of appellant and identified his residence. He also used his

tablet to track a signal to his cell phone, which he had left in his truck. However,

only the phone was found. The next day, the complainant’s truck was found at a

nearby school. The complainant testified that the interior was damaged, and it

looked like someone had tried to remove the radio. The complainant identified

appellant, in a photographic lineup and during trial, as the robber.

      Houston Police Department (“HPD”) Officer M. Hernandez testified that,

while on patrol on September 12, 2017, he was dispatched to investigate an

aggravated robbery. The complainant reported that, while driving, he saw appellant

running after a girl. Appellant then “jumped” in front of the complainant’s truck,

forcing him to stop, pulled a handgun from his waist, and pointed it at the

complainant. The complainant described appellant, identified his residence, and

described the handgun as having a “silver upper part and black handle.” Hernandez

noted that the complainant’s cell phone was found at a restaurant located

approximately one-half mile away from the scene.

      HPD Investigator J. Rachel testified that the complainant positively identified

appellant in a photographic lineup. From his investigation, Rachel identified the

woman who had gotten into the truck as Michelle Rodriguez. He testified that he

interviewed Rodriguez and that her statement was consistent with that of the


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complainant.    HPD Officer S. Villarreal testified that he was dispatched to

investigate a report of a suspicious vehicle at a school. There, he located the

complainant’s abandoned truck. J. Molina, of the Houston Forensic Science Center,

testified that fingerprints recovered from the outside surface of the driver’s side door

of the truck matched those of appellant.

      Appellant testified that Michelle was a “call girl” and that he was her client

and close friend. He did not know the complainant. On the day at issue, appellant

was at his house when Michelle and the complainant arrived together in the

complainant’s truck. Michelle then drove appellant to a store to get beer, while the

complainant waited at appellant’s house. On the way, appellant and Michelle argued

because she wanted to go and buy “drugs.” Michelle dropped off appellant, and he

walked home. When he arrived, the complainant was gone. Appellant denied

having possessed a firearm or having robbed the complainant.

      At the close of the guilt-innocence phase of trial, the trial court’s charge

authorized the jury to find appellant guilty of the offense of aggravated robbery with

a deadly weapon as a primary actor. Appellant did not object to this charge.




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                                     Charge Error

      In his sole issue, appellant argues that the trial court erred in failing to instruct

the jury on a lesser-included offense of unauthorized use of a motor vehicle2 and on

the law of parties,3 at it related to his defensive issue. He asserts that his complaints

must be addressed together because “the facts justify a party charge only in the

context of the lesser-included offense.” He further asserts that such error caused him

egregious harm, under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

App. 1984).


2
      A jury instruction on a lesser-included offense is warranted if the lesser offense at
      issue (1) qualifies as a lesser-included offense and (2) some evidence exists in the
      record that would permit a jury to rationally find that if the defendant is guilty, he
      is guilty only of the lesser offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex.
      Crim. App. 2007); see also TEX. CODE CRIM. PROC. art. 37.09.
      A person commits the offense of robbery “if, in the course of committing
      theft . . . and with intent to obtain or maintain control of the property,
      he . . . intentionally or knowingly threatens or places another in fear of imminent
      bodily injury or death.” TEX. PENAL CODE § 29.02(a)(2). Theft is the unlawful
      appropriation of property with intent to deprive the owner of the property. Id.
      § 31.03(a). The offense of robbery is aggravated if, inter alia, the person “uses or
      exhibits a deadly weapon” during its commission. Id. § 29.03(a)(2). A firearm is a
      deadly weapon. Id. § 1.07(a)(17)(A). A person commits the offense of unauthorized
      use of a motor vehicle if he intentionally or knowingly operates another’s motor-
      propelled vehicle without the effective consent of the owner. Id. § 31.07.
3
       “A person is criminally responsible as a party to an offense if the offense is
      committed by his own conduct, by the conduct of another for which he is criminally
      responsible, or by both.” Id. § 7.01(a). A person is criminally responsible for an
      offense committed by the conduct of another if, “acting with intent to promote or
      assist the commission of the offense, he solicits, encourages, directs, aids, or
      attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2). Appellant
      asserts that a parties instruction is applicable to this case based on the role of
      Michelle.

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      The State argues that appellant failed to preserve error for review because he

failed to either request these instructions or object to their omission from the charge.

It argues, essentially, that Almanza does not apply. Appellant does not dispute that

he did not request such instructions or object to their omission.

A.    Standard of Review

      We review alleged charge error by first determining whether error exists in

the charge. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). “If error

exists, we then analyze the harm resulting from the error” to determine whether

reversal is required. Id. In determining harm, we apply “separate standards of

review depending on whether the defendant timely objected to the jury instructions.”

Marshall v. State, 479 S.W.3d 840, 843 (Tex. 2016) (applying Almanza, 686 S.W.2d

at 171). If the defendant timely objected to the charge error, then reversal is required

if we determine that the error caused the defendant “some harm.” Id. If the defendant

did not timely object, then reversal is required only if the error was “so egregious

and created such harm that the defendant did not have a fair and impartial trial.” Id.

       “Almanza does not apply,” however, “unless the appellate court first finds

‘error’ in the jury charge.” Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App.

1998). Thus, here, before applying Almanza’s egregious-harm standard, as appellant

advances, we must first determine whether the trial court erred in not instructing the

jury on a lesser-included offense of unauthorized use of a motor vehicle and on the


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law of parties, without appellant having requested such instructions or objected to

their omission. See Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010)

(“Before applying Almanza’s egregious-harm standard for unobjected-to jury charge

error, the court of appeals should have first decided whether it was ‘error’ for the

trial court not to sua sponte instruct the jury on the lesser-included offense . . . .”).

B.     Analysis

       Texas Code of Criminal Procedure article 36.14 directs a trial court to “deliver

to the jury . . . a written charge distinctly setting forth the law applicable to the case.”

Mendez v. State, 545 S.W.3d 548, 551–52 (Tex. Crim. App. 2018); see also TEX.

CODE CRIM. PROC. art. 36.14. The charge should include “all of the law applicable

to the criminal offense that is set out in the indictment or information,” as well as

general admonishments, i.e., presumption of innocence and so forth. Mendez, 545

S.W.3d at 552. “These matters are always ‘law applicable to the case.’” Id. And, a

trial court is required to instruct on these issues “sua sponte, even without prompting

from counsel, because the trial court is ultimately responsible for the accuracy of the

jury charge and accompanying instructions.” Id.; see also Tolbert, 306 S.W.3d at

779–80 (defendant need not preserve error to assert charge complaints involving law

applicable to case). Instead, whether the defendant objected to the error simply

determines which of Almanza’s dual standards of review, discussed above, applies

to determine whether the error is reversible. Mendez, 545 S.W.3d at 552.


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       On the other hand, the law does not impose on a trial court a duty to sua

sponte instruct a jury on defensive issues.       Tolbert, 306 S.W.3d at 779–80;

Oursbourn v. State, 259 S.W.3d 159, 179–80 (Tex. Crim. App. 2008) (defensive

issues include those “on which instructions are not mandated by any statute” or rule).

Defensive issues are treated differently because they involve strategic decisions

generally left to the defendant and his counsel. Delgado v. State, 235 S.W.3d 244,

249–50 (Tex. Crim. App. 2007); Posey, 966 S.W.2d at 62–63 (“Article 36.14

imposes no duty on trial courts to sua sponte instruct the jury on unrequested

defensive issues,” even on defenses raised by evidence at trial). This rule is

“intended ‘to discourage parties from sandbagging or lying behind the log’ and to

discourage a defendant from retrying the case on appeal under a new defensive

theory, effectively giving the defendant ‘two bites at the apple.’” Tolbert, 306

S.W.3d at 780 n.6 (quoting Posey, 966 S.W.2d at 63). Accordingly, a defendant

“cannot complain on appeal about the trial judge’s failure to include a defensive

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).

      “[L]esser-included instructions are like defensive issues.”       Tolbert, 306

S.W.3d at 780. Whether to request that a jury be instructed on a lesser-included

offense or, instead, to “go for broke” and seek an acquittal on the charged offense is


                                          8
a strategic choice that belongs to the defendant and his counsel. Id. at 780–82.

“Because of the strategic nature of the decision, it is appropriate for the trial court to

defer [and] . . . refrain[ ] from submitting lesser offense instructions without a

party’s request.” Id. at 781 (quoting 43 George E. Dix & Robert O. Dawson,

CRIMINAL PRACTICE AND PROCEDURE § 36.50 at 202 (Supp. 2006)). Thus, a trial

court does not have a duty to sua sponte instruct a jury on a lesser-included offense.

Id. at 781.

      In Tolbert, the court of criminal appeals held that the trial court, presiding

over a capital-murder trial, “had no duty to sua sponte instruct the jury on the lesser-

included offense of murder.” Id. Rather, a jury charge “on this lesser-included

offense was not ‘applicable to the case’ absent a request by the defense for its

inclusion in the jury charge.” Id. And, there being no such request by the defendant,

he waived his right to appeal that aspect of charge. Id. Further, “there was no jury-

charge ‘error’ to which Almanza’s egregious harm analysis would apply.” Id. at 782.

In Mendez, the court held that, “[i]f [a] defendant fails to object to the absence of

these kinds of instructions in the jury charge, the trial court will have committed no

error at all; a trial court does not err by failing to instruct the jury on an issue that

was, by virtue of the defendant’s silence, simply inapplicable to the case.” 545

S.W.3d at 552.




                                            9
       Similarly, with respect to the law of parties, the court of criminal appeals has

held that, if a trial court “fails to apply the law of parties to the facts of the case, it

might be better trial strategy for the defense counsel not to ask for such a charge.”

Romo v. State, 568 S.W.2d 298, 302 (Tex. Crim. App. 1977) (op. on reh’g) (“A

charge on the law of parties enlarges a defendant’s criminal responsibility. The

charge benefits the State and not the defendant.”). Thus, a defendant’s failure to

either request that a charge be submitted to the jury applying the law of parties to the

facts or to object to the omission of such charge waives the issue. See Molina v.

State, 450 S.W.3d 540, 548 (Tex. App.—Houston [14th Dist.] 2014, no pet.);

Phillips v. State, 770 S.W.2d 824, 827 (Tex. App.—El Paso 1988, no pet.) (holding

that trial court did not err in not submitting instruction on law of parties as defensive

issue).

       We conclude that the trial court did not err in not sua sponte instructing the

jury on appellant’s unrequested defensive issues; rather, appellant was required to

preserve error. See Vega, 394 S.W.3d at 519; Tolbert, 306 S.W.3d at 779–81. To

preserve error, appellant was required to have provided to the trial court, either in

writing or through dictation on the record, the defensive instructions he desired, and

request that they be given to the jury, or object to their omission. See TEX. CODE

CRIM. PROC. art. 36.14, 36.15; Tolbert, 306 S.W.3d at 781. Appellant does not

dispute that he did not request an instruction on a lesser included offense of


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unauthorized use of a motor vehicle or request an instruction applying the law of

parties to his defensive issue. Further, he did not object to their omission in the

charge. Accordingly, we hold that appellant has not preserved his issue for appeal.

See Vega, 394 S.W.3d at 519 (“A defendant cannot complain on appeal about the

trial judge’s failure to include a defensive instruction that he did not preserve by

request or objection: he has procedurally defaulted any such complaint.”); Tolbert,

306 S.W.3d at 781.

      We overrule appellant’s sole issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.

Do not publish. TEX. R. APP. P. 47.2(b).




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