Affirmed and Opinion filed June 27, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00512-CR

                        ALBERTO PALACIO, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 174th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1470978

                                   OPINION

      Appellant Alberto Palacio appeals his conviction for burglary of a
habitation. In three issues he complains that the trial court (1) allowed the State to
define and discuss “deadly weapon” during voir dire, (2) failed to grant a mistrial,
and (3) failed to instruct the jury on an alleged lesser-included offense of assault.
We affirm.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
      Appellant had a violent history with his sister, the complainant, who had
suffered physical abuse at appellant’s hands since childhood. Their mother lived
with the sister and the sister’s two children. Appellant was not welcome on the
sister’s property. Posted notices stated appellant was banned from the premises.
Nonetheless, appellant would visit his mother at the sister’s house while the sister
was at work. On the day in question, appellant was visiting his mother at the
sister’s house. Appellant’s mother asked appellant to leave before the sister
returned home. He did not.

      When the sister came home and found appellant in her yard with their
mother, the sister told appellant to leave. Then the two women went inside the
house. The sister asked the mother to call the police. Before help arrived, appellant
smashed a patio chair through the front-door window. He then grabbed the sister
through the window as she was trying to keep the front door closed. Appellant
began twisting and turning her with his hands, holding on to her upper body. The
movement caused the window glass to cut the sister’s flesh. She suffered gashes in
her arms. Both the mother and the sister feared that appellant would harm the sister
severely. Appellant threatened to kill his sister and then fled the premises before
the police arrived.

      Appellant was charged with burglary of a habitation with intent to commit
assault. The primary paragraph of the indictment contained the elements of a
charge of burglary under Penal Code section 30.02(a)(1) involving entry of a
habitation with intent to commit assault. The second paragraph contained an
allegation that appellant used and exhibited a deadly weapon, namely, a broken
glass, during the commission of the offense. The last two paragraphs contained



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allegations of two prior convictions, one for aggravated assault with a deadly
weapon (2002) and the other for assault of a family member (2010).
      The jury found appellant guilty as charged. Appellant pleaded “true” to both
enhancement paragraphs. The trial judge made a negative finding on the deadly-
weapon issue, assessed punishment, and sentenced appellant to forty-five years’
confinement.

                              II. ISSUES AND ANALYSIS

A. Did the trial court commit harmful error when it permitted the State to
define “deadly weapon” during voir dire?
      In his first issue, appellant asserts that the trial court erred when it overruled
his objection to the State defining “deadly weapon” during voir dire after he had
elected that the trial court assess punishment.

                  Did appellant preserve error on his complaint?

      We first consider whether appellant preserved error on his complaint. In
conducting voir dire, the trial judge began by introducing the court, the process, the
parties, and the subject matter of the case. Midway in this first phase, the judge
read the indictment’s primary paragraph and deadly-weapon paragraph. After
interacting with the jury panel, the trial court called on the attorneys to introduce
themselves and to conduct their own voir dire.          At that juncture, appellant’s
attorney lodged an anticipatory objection to prevent the State from defining the
term “deadly weapon” during its voir dire examination.            Appellant’s counsel
argued that because the trial judge would be deciding punishment, the judge also
should make the fact-finding on the deadly-weapon issue, and thus the matter
would not be relevant to jury’s consideration.

      The trial court did not immediately decide at which phase the deadly-
weapon issue would be determined, but the trial court decided regardless that “the
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State should be allowed to define a deadly weapon is since that appears to be
relevant to their case-in-chief of burglary of a habitation with intent to commit
assault.” Appellant’s counsel argued that if the jury was not making a decision on
the deadly-weapon issue, a discussion about the definition of “deadly weapon”
would taint the jury determination of appellant’s guilt. The trial court overruled
the objection but restricted the State from “explain[ing] anything about the special
issue and that they’re going to get a charge” on the issue, and limited the State to
“defin[ing] what a deadly weapon is under the law.”

      The State read the Penal Code’s definition of “deadly weapon” and then
solicited thoughts from the panel about their impression of objects that fit the
definition.   Appellant’s counsel raised no further objection. Appellant’s counsel
engaged the panel on a definition using his own hypothetical.

      The State contends appellant did not preserve error on his complaint that the
trial court overruled appellant’s objection to the State’s discussion of the legal
definition for “deadly weapon” because appellant did not first object when the trial
court read the deadly-weapon paragraph to the panel. We presume for the sake of
argument that appellant timely voiced his objection and preserved error by
obtaining an adverse ruling from the trial court.

   Did the trial court commit reversible error when it allowed the State to define
                         “deadly weapon” during voir dire?

      The trial court has broad discretion over the jury-selection process. Barajas
v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002). The trial court abuses its
discretion when it permits an improper question to be asked. See id. At the time of
his objection, appellant made clear he wanted the trial court to make any
factfinding on the deadly-weapon issue during the punishment phase, rather than
have the jury make a finding on this issue during the guilt/innocence phase.

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Though appellant had elected for the judge to assess punishment, if necessary,
appellant had not before indicated his preference regarding the deadly-weapon
factfinder. Nor had the trial court determined or pronounced whether the jury or
the trial court would be the factfinder on the issue.
      Upon an affirmative finding that a defendant used or exhibited a deadly
weapon during the commission of a felony offense or the immediate flight from the
commission of a felony offense, “the trial court shall enter the finding in the
judgment of the court.” Tex. Crim. Proc. Code Ann. § 42A.054(b), (c) (West
2017).   The Court of Criminal Appeals has never held that it is improper
to submit a “deadly weapon” special issue during the guilt/innocence phase of trial.
See Hill v. State, 913 S.W.2d at 586. The high court has stated that
the better practice is to submit the “deadly weapon” special issue during
the guilt/innocence phase rather than during the punishment phase. See id.
      In today’s case the indictment contained an allegation that appellant used
and exhibited a deadly weapon during the commission of the offense. Absent a
determination that the trial court would be the factfinder on the “deadly weapon”
issue during the punishment phase, if any, the trial court reasonably could have
decided that the jury would make any finding on that issue and that the State
should be allowed to discuss the definition of “deadly weapon” during voir dire.
Appellant has not shown that the trial court erred in overruling his objection. See
Hill v. State, 913 S.W.2d at 586.
      Twice in his appellate brief appellant characterizes the trial court’s ruling on
his objection to the State’s voir dire discussion as effectively constituting a
comment on the weight of the evidence. Yet, nothing in appellant’s brief suggests
that appellant challenges anything the trial court communicated to the jury, or that
appellant’s complaint on appeal is that the trial court “commented on the weight of
the evidence” when it read the enhancement paragraph to the jury. The trial
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court’s ruling, made in a bench conference to the lawyers, on whether the State
could discuss the proper definition of a legal term in voir dire is not a “comment”
by the trial court to the jury.

       Even if we presume error for the sake of argument, we conclude the error is
harmless. The venire panel already had heard the trial court read the “deadly
weapon” paragraph early in the voir dire (which appellant does not challenge on
appeal). And, the trial court took steps to ensure the State did not venture beyond
a discussion of the definition. See Haley v. State, 396 S.W.3d 756, 763 (Tex.
App.—Houston [14th Dist.] 2013, no pet.) (finding no harm where appropriate
steps were made to keep the panel from making further inferences beyond the
matter that drew the objection). Thus, even if there were error, no harm resulted
from it. Accordingly, we overrule appellant’s first issue.
B. Did the trial court abuse its discretion in denying appellant’s motions for
mistrial?
       Under his second issue, appellant challenges the trial court’s denial of two
motions for mistrial he asserted while the State’s witness, Officer Mike Vollert,
was on the stand. We review a trial court’s denial of a mistrial for an abuse of
discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009); Crayton v.
State, 463 S.W.3d 531, 542 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
Courts invoke the device of mistrial to halt trial proceedings when they deem the
error so prejudicial that spending more time and incurring more expense would be
wasteful and futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
Because the law views a mistrial as an extreme remedy, courts grant them only
when they deem the prejudice incurable and have exhausted less drastic
alternatives. See Ocon, 284 S.W.3d at 884. In determining whether a prejudicial
event was so harmful as to warrant reversal on appeal, we consider the prejudicial
effect, any curative measures taken, and the certainty of conviction absent the
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prejudicial event. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App.
2004). When a party requesting a mistrial does not first seek a lesser remedy, a
reviewing court cannot reverse the trial court’s judgment if the alleged error could
have been cured by a less drastic alternative. Ocon v. State, 284 S.W.3d 880, 884–
85 (Tex. Crim. App. 2009).
                               First Motion for Mistrial
      Appellant complains that the trial court abused its discretion when it denied
his first motion for mistrial after the Officer Vollert testified that the complainant
reported to him that appellant had “been arrested before and that he’s assaulted her
before.” Following the officer’s statement, appellant objected (without specifying
a ground) and then asked for a bench conference. During the bench conference
appellant’s counsel stated, “We had discussed this in a motion in limine about prior
arrests.” In the motion in limine appellant had sought to exclude any evidence of
the prior assaults during the guilt/innocence phase of trial. The trial court had
granted the motion and required that the State approach before offering the
evidence.   The   trial court instructed the State to ensure that the witness did not
discuss “anything about [appellant] being arrested.”
      Following the bench conference, without asking for any curative measure,
appellant immediately moved for a mistrial, asserting the State had violated the
trial court’s in limine order. The trial court then opted to instruct the jury to
disregard the officer’s statement. The trial court did not rule on the motion for
mistrial. Appellant did not re-urge his motion for mistrial after the court instructed
the jury to disregard or otherwise request a ruling on his motion for mistrial.
       Because appellant failed to secure an adverse ruling on his first motion for
mistrial, he failed to preserve the complaint for appellate review. Flores v. State,
871 S.W.2d 714, 723 (Tex. Crim. App. 1993) (concluding that appellant did not
preserve error as to the denial of his motion for mistrial because he did not get an
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adverse ruling on it). Even had appellant preserved error, we could not conclude
the officer’s comment was so harmful that the trial court would have abused its
discretion in denying the first motion for mistrial.
                              Second Motion for Mistrial
      Also under his second issue, appellant complains that the trial court abused
its discretion by failing to grant his second motion for mistrial when the State,
through Officer Vollert, misrepresented that the complainant/sister saw appellant
kick in her front door.
      The testimony that prompted appellant’s second motion for mistrial began as
the State asked Officer Vollert about what the sister told him concerning the
condition of the front door when she first arrived home from work. Shortly before
appellant lodged the second motion for mistrial, the jury heard the following
testimony from the officer:
      Q. Looking back at State's 4, did she [complainant-sister] mention to
      you in any way how or why the piece of wood from the doorjamb was
      on the inside of the house?
      A. Yes, sir.
      Q. What was that?
      A. She stated that when she came home, the door had been kicked in
      or that she observed the door to have been kicked in.
      Q. Did she kick in the door?
      A. No, sir.
      Q. Who kicked in the door?
      MR. CASTRO: Objection, Your Honor.
      Q. (By Mr. Cicconetti) If you know.
      A. She stated that Alberto Palacio kicked in the door.
      MR. CASTRO: Objection again as to hearsay, Judge.
      THE COURT: I'm going -- he's already asked and answered the
      question. I'm going to overrule the objection.

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      MR. CASTRO: He also said earlier that when she got there --
      THE COURT: Just one second. Do not testify. Do you need to
      approach the bench?
      MR. CASTRO: Yes, please.
      Although Officer Vollert never testified that the sister saw appellant kick the
door in, at the bench conference, the trial court recognized the concern that the
officer’s testimony suggested the sister had personal knowledge that appellant had
kicked in the door. The trial court inquired among the lawyers about the sister’s
personal knowledge, and the prosecutor represented to the trial court that the sister
actually saw appellant kick in the door. The trial court advised appellant’s counsel
to address his concerns regarding the sister’s personal knowledge in cross-
examination when the sister took the stand. Appellant requested an instruction to
disregard, which the trial court implicitly refused when it stated in response, “I’ve
already overruled the objection.” Appellant then moved for a mistrial, and the trial
court denied the motion.
      Presuming, without deciding, that the trial court erred in overruling
appellant’s hearsay objection, and presuming, without deciding, that the trial court
erred in not instructing the jury to disregard Officer Vollert’s testimony that the
sister told him that appellant kicked the door in, we consider whether the trial court
abused its discretion when it refused to grant appellant’s second mistrial at the
close of the bench conference.
      Officer Vollert’s testimony had little prejudicial effect. The State’s burglary
case did not depend on appellant’s kicking in the door before the sister entered the
house. The State’s case turned on appellant’s entry during the altercation when
sister was in the house. The record contains ample evidence showing that
appellant’s unauthorized entry into the house occurred later. The sister and the
mother testified to the essential facts necessary to convict appellant. The

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prejudicial effect of the officer’s testimony was relatively low and the certainty of
appellant’s conviction absent the misconduct was relatively high. See Brown v.
State, 270 S.W.3d 564, 572–73 (Tex. Crim. App. 2008) (although there were no
curative measures, the State did not dwell on the matter, and the evidence of guilt
included corroborated accomplice-witness testimony); Freeman v. State, 340
S.W.3d 717, 728–29 (Tex. Crim. App. 2011) (the trial court did not give a curative
instruction, the comment was brief, there was a lack of prejudice, and evidence
supporting the conviction was strong). Accordingly, we overrule all complaints
under appellant’s second issue.
C. Did the trial court abuse its discretion when it denied appellant’s request
to charge the jury on assault as a lesser-included offense?
      In his third issue appellant argues the trial court abused its discretion in
denying his request to include jury instructions on the offense of assault, which
appellant asserts is a lesser-included offense of burglary of a habitation with intent
to commit assault.

      The Texas Code of Criminal Procedure provides, “[i]n a prosecution for an
offense with lesser included offenses, the jury may find the defendant not guilty of
the greater offense, but guilty of any lesser included offense.” Tex. Code Crim.
Proc. Ann. art. 37.08 (West 2006). We apply a two-prong analysis to determine
whether the trial court should have included a lesser-included offense instruction in
the jury charge. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013); Hall
v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). In the first prong, we
compare the elements of the offense as charged in the indictment or information
with the elements of the asserted lesser-included offense. Meru, 414 S.W.3d at
162; Hall, 225 S.W.3d at 535–36. This first prong is a question of law and does not
depend on evidence adduced at trial. Hall, 225 S.W.3d at 535.


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      An offense will be a lesser-included offense if “it is established by proof of
the same or less than all the facts required to establish the commission of the
offense charged.” Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006). Under
this statute, an offense is a lesser-included offense of the charged offense if the
indictment for the greater offense either: (1) alleges all of the elements of the
lesser-included offense, or (2) alleges elements plus facts (including descriptive
averments, such as non-statutory manner and means, that are alleged for purposes
of providing notice) from which all of the elements of the lesser-included offense
may be deduced. Shakesnider v. State, 477 S.W.3d 920, 924 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). If the elements of the lesser-included offense can be
deduced from facts alleged in the indictment, they need not be pled in the
indictment. Id. We use the concept of functional equivalence to determine whether
the elements of the lesser offense “are ‘functionally the same or less than those
required to prove the charged offense.’”        Meru, 414 S.W.3d at 162 (quoting
McKithan v. State, 324 S.W.3d 582, 588 (Tex. Crim. App. 2010)).

      Appellant was indicted on burglary allegations consistent with section
30.02(a)(1) of the Penal Code. The statutory elements of burglary of a habitation,
as alleged in the indictment, are that (i) appellant, (ii) with intent to commit assault,
(iii) entered a habitation (iv) without the effective consent of the complainant, the
owner. See Tex. Penal Code Ann. § 30.02(a)(1). Section 22.01 defines assault as
(1) intentionally, knowingly, or recklessly caus[ing] bodily injury to another,
including the person’s spouse; (2) intentionally or knowingly threaten[ing] another
with imminent bodily injury, including the person’s spouse; or (3) intentionally or
knowingly caus[ing] physical contact with another person when the person knows
or should reasonably believe that the other will regard the contact as offensive or
provocative. The indictment’s primary paragraph does not add facts from which


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any of the elements of assault may be deduced. The burglary indictment, tracking
the language of 30.02(a)(1), rejects the inclusion of “assault” as a lesser-included
offense because the intent-to-commit-assault element describes something less
than a completed assault.

      Other courts conducting the first-prong analysis to decide whether assault is
a lesser-included offense to a burglary with the intent-to-commit-assault have
found that it is not. Jacob v. State, 892 S.W.2d 905, 909 (Tex. Crim. App.
1995)(holding aggravated assault is not a lesser-included offense of burglary of a
habitation with intent to commit aggravated assault); Beasley v. State, 426 S.W.3d
140, 146 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding submission of
the unindicted charge of sexual assault, which was not a lesser-included offense of
charged burglary of a habitation with intent to commit sexual assault, caused
egregious harm to defendant); Turner v. State, 528 S.W.3d 569, 576–77 (Tex.
App.—Texarkana 2016, no pet.) (“Because burglary of a habitation with the intent
to commit aggravated assault and aggravated assault do not involve the same
elements, no double jeopardy violation clearly appears on the face of the record.”).

      Appellant, arguing his case is distinguishable, urges us to consider the
indictment’s “deadly weapon” paragraph as part of the greater-inclusive offense
charged. The indictment alleges appellant “used and exhibited a deadly weapon,
namely a BROKEN GLASS, during the commission of said offense and during the
immediate flight from said offense.” Appellant provides no authority, and we have
found none, to support the notion that an independent “deadly weapon” paragraph
can be used in conjunction with a primary paragraph for purposes of the lesser-
included-offense analysis. See Tex. Code Crim. Proc. Ann. art. 37.09.          Even
presuming that it would be proper to do so, appellant’s analysis is based on a
misunderstanding of the meaning of “said offense” in the deadly-weapon

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paragraph as “assault” rather than “burglary.”

       Because an assault “is not established by proof of the same or less than all
the facts required to establish the commission” of burglary with an intent to
commit assault, the first prong of the lesser-included offense analysis is not
satisfied.   See Tex. Code Crim. Proc. Ann. art. 37.09(1); Jacob v. State, 892
S.W.2d 905, 909 (Tex. Crim. App. 1995) (aggravated assault is not a lesser-
included offense of burglary of a habitation with intent to commit aggravated
assault). Therefore, the trial court did not abuse its discretion when it denied
appellant’s request to instruct the jury on assault as a lesser-included offense.
Accordingly, we overrule appellant’s third issue.

       Having overruled all of appellant’s challenges on appeal, we affirm the trial
court’s judgment.




                                       /s/    Kem Thompson Frost
                                              Chief Justice



Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
Publish — TEX. R. APP. P. 47.2(b).




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