Affirmed as Modified and Opinion Filed April 26, 2017




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-16-00298-CR

                     MONTRANCE TYRONE ROBERSON, Appellant
                                     V.
                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 195th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1551843-N

                            MEMORANDUM OPINION
                          Before Justices Francis, Brown, and Schenck
                                   Opinion by Justice Francis
        A jury convicted Montrance Tyrone Roberson of aggravated robbery and assessed

punishment at eighty years in prison. On appeal, appellant brings two issues: (1) the trial court

erred by failing to sua sponte instruct the jury at punishment on temporary insanity due to

intoxication and (2) the judgment should be modified to accurately reflect defense counsel’s

name. We overrule the first issue. We sustain the second issue and modify the judgment as

requested. We affirm the judgment as modified.

       Gabe Tedros was the clerk at the Stop n’ Shop convenience store in Pleasant Grove. In

the early morning hours of February 3, 2015, appellant entered the store and asked about another

clerk. Tedros recognized appellant because he had been in the store on a few other occasions.

Tedros was sitting in the glassed-in booth with the side door open, and appellant entered the
booth.     As appellant walked closer, Tedros was scared because appellant was not acting

“normal” and he thought appellant “must be” under the influence of some drug. Tedros was able

to exit the booth, but appellant chased Tedros around the store, punching and hitting him.

Tedros tried to return to the booth and lock the door, but appellant stopped him. Appellant

stabbed Tedros in the stomach and leg, slashed at his face, and threatened to kill him “[v]ery

slowly.”

         Appellant took Tedros’s wedding ring and phone and demanded his money. Tedros

could not reach the money in his pocket so he took off his pants and gave them to appellant.

When appellant went back to the booth to get the store’s money, Tedros ran out of the store to a

nearby 7-Eleven, where the police were called. The Stop n’ Shop’s surveillance video captured

the events and was admitted into evidence.

         Appellant was arrested shortly after the robbery walking in a nearby neighborhood. He

had fresh blood on his pants. The officer searched appellant and found a box cutter, a cigarette

package with blood on it, and two cell phones, one of which belonged to Tedros. The officer

said appellant appeared to be intoxicated on a substance other than alcohol and called for an

ambulance because he thought he needed medical attention.          When paramedics removed

appellant’s jacket, they found “a bunch of loose cash” in the sleeve. At the hospital, appellant

was belligerent and had to be physically restrained.         His urine screened positive for

amphetamines, cannabinoids, cocaine, opiates, and PCP.

         Appellant testified he went to the store to buy a pack of cigarettes. He said he gave

Tedros a $100 bill, but Tedros would not give him his change and called him a racial slur.

Appellant said he went to the side of the booth, but did not go in, and demanded his money. He

said Tedros cussed him out and hit him in the head, knocking him out. Appellant said he

remembered nothing else until he woke up in the hospital. Appellant said the store video, which

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contradicted his story, had been edited. He did not recall having “any scuffle” with Tedros or

being arrested.

       On cross-examination, he denied having a knife that night, but when shown the

surveillance video of him carrying a knife around the store, he attempted to “plead the Fifth.”

He also said he had “no memory” of telling a nurse that he “did some heroin and meth,” then

“beat the shit out of some motherfucker” that called him a “no-shit ‘n’ ho” and made the man

“stab himself a few times with his own blade.”

       In his first issue, appellant complains he was egregiously harmed during the punishment

phase by the trial court’s failure to include an instruction on temporary insanity due to

intoxication.     He argues such an instruction would have allowed the jury to consider his

intoxication in mitigation of his punishment.

       The trial judge is “ultimately responsible for the accuracy of the jury charge and

accompanying instructions.” Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013).

Under article 36.14 of code of criminal procedure, “the judge shall, before the argument begins,

deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge

distinctly setting forth the law applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007). 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. Vega, 394

S.W.3d at 519. But article 36.14 imposes no duty on a trial judge to instruct the jury sua sponte

on unrequested defensive issues because an unrequested defensive issue is not the law

“applicable to the case.” Id.; Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998).

Consequently, a defendant cannot complain on appeal about the trial judge’s failure to include a

defensive instruction he did not preserve by request or objection: he has procedurally defaulted

any such complaint. Vega, 394 S.W.3d at 519. Temporary insanity caused by intoxication is a

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defensive issue. See Williams v. State, 273 S.W.3d 200, 222 (Tex. Crim. App. 2008) (comparing

capital murder mitigation issue with “a number of punishment mitigating factors that are clearly

defensive issues, including temporary insanity caused by intoxication”) (emphasis added); Logan

v. State, No. 02-11-00409-CR, 2013 WL 3488259, at *2 (Tex. App.—Fort Worth Jul. 11, 2013,

no pet.) (mem. op.).

         Here, the record shows appellant did not request an instruction in the charge that the jury

could consider the mitigating effect of temporary insanity caused by intoxication. Because the

trial court has no duty to give an instruction on defensive issues when not requested, we overrule

his first issue. See Vega, 394 S.W.3d at 519; Logan, 2013 WL 3488259, at *2.

         In his second issue, appellant requests that we modify the judgment to accurately reflect

the name of defense counsel. This Court has the authority to correct the judgment of the court

below to make the record “speak the truth” when we have the necessary data and information to

do so.    Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). The

judgment shows defense counsel was Matthew Seymour; the reporter’s record, however, shows

appellant was represented at trial by George Conkey. We sustain appellant’s second issue.

         We modify the trial court’s judgment to reflect George Conkey as defense counsel. As

modified we affirm.




                                                      /Molly Francis/
                                                      MOLLY FRANCIS
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
160298F.U05



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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MONTRANCE TYRONE ROBERSON,                          On Appeal from the 195th Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F-1551843-N.
No. 05-16-00298-CR         V.                       Opinion delivered by Justice Francis;
                                                    Justices Brown and Schenck participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       To reflect George Conkey as Attorney for Defendant.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered April 26, 2017.




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