Opinion issued June 10, 2014.




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00616-CR
                          ———————————
                DONNIE EARL DUCKSWORTH, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


              On Appeal from the 412th Judicial District Court
                          Brazoria County, Texas
               Trial Court Case Nos. 69305 (Count I and II)


                         MEMORANDUM OPINION

      A Brazoria County jury convicted Donnie Ducksworth of aggravated

robbery and, after Ducksworth pleaded true to two enhancement paragraphs,

assessed punishment at 60 years’ confinement. In two issues, Ducksworth contends
that the trial court erred by failing to instruct the jury on the lesser-included

offenses of robbery and theft.

      We affirm.

                                   Background

      Ducksworth and his wife were arrested after two construction workers

notified police that the two had stolen metal pipe from their construction site. The

two men, Jose and Ruben Vera, who are brothers, testified that Ducksworth and his

wife entered a road-side construction zone in Pearland and began loading metal

pipe onto Ducksworth’s truck. The Veras testified that they approached

Ducksworth and told him that the pipe was not construction debris and that he

could not take it. In response, Ducksworth pulled a knife partially out of his

pocket, threatened them, and left the construction site with the pipe. The Veras

called the police, and Ducksworth and his wife were stopped within a few minutes.

During the stop, the police found pipe and a knife in the bed of Ducksworth’s

truck. Both were arrested and charged with aggravated robbery.

      At trial, Ducksworth’s wife, Connie Peters, testified that she had understood

that a third construction worker had given Ducksworth permission to take the pipe

before the Veras intervened. She also testified about the knife that the police found

in the bed of the truck. She stated that they kept the knife in the cab of the truck

and used it to operate the truck’s broken ignition. Peters testified that the knife


                                         2
remained in the cab of the truck throughout the confrontation with the Veras,

meaning that Ducksworth could not have used it to threaten the Veras as they

contended. She explained that the knife was in the bed of the truck when the police

arrived only because they used it to help secure the pipe for transport after taking it

from the construction site. Ducksworth did not testify.

      The jury was asked whether Ducksworth committed aggravated robbery.

The jury was not instructed on any lesser-included offenses. The jury found

Ducksworth guilty of aggravated robbery and, taking into account two

enhancement paragraphs, sentenced him to 60 years’ imprisonment.

          Procedural Default on Lesser-Included Offense Instructions

      Criminal jury charges contain “law applicable to the case” and often

“defensive issues.” Tolbert v. State, 306 S.W.3d 776, 779 (Tex. Crim. App. 2010).

The trial court has a duty to sua sponte instruct the jury correctly on the law

applicable to the case. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App.

1998); TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007) (“[J]udge shall . . .

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

the case.”). Given that duty, a criminal defendant is not required to take any action

to preserve error with regard to charge complaints involving the law applicable to

the case. Tolbert, 306 S.W.3d at 779.




                                           3
      Defensive issues are treated differently because they involve strategic

decisions and tactics generally left to the defense lawyer and the client. Posey, 966

S.W.2d at 63; Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). A

defendant may decide it would be a better trial strategy to forgo a possible

instruction that contradicts the defendant’s theory of the case. Posey, 966 S.W.2d

at 63. Acknowledging this strategic decision, the law does not impose on a trial

court a duty to sua sponte instruct the jury on defensive issues. Tolbert v. State,

306 S.W.3d at 779–80; Oursbourn v. State, 259 S.W.3d 159, 179–80 (Tex. Crim.

App. 2008); Posey, 966 S.W.2d at 60–62. And a defendant who does not preserve

error on a defensive charge issue waives his right to appeal that aspect of the jury

charge. Tolbert, 306 S.W.3d at 779; Posey, 966 S.W.2d at 62. 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).

      Lesser-included offenses are defensive issues. Id. at 780. The decision

whether to request that a jury be instructed on lesser-included offenses or, instead,

to “go for broke” and seek an acquittal on the charged offense is a strategic choice

left to the defendant to make. See Tolbert, 306 S.W.3d at 781–82 (citing Haynes v.

State, 273 S.W.3d 183, 191 (Tex. Crim. App. 2008) (Johnson, J., concurring)).


                                         4
“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. Therefore, a trial court does not have a duty to sua

sponte instruct the jury on lesser-included offenses. Id. at 780–81; Delgado, 235

S.W.3d at 249 (“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.”)

(footnote and italics omitted).

      To preserve error on the omission of a lesser-included offense from the jury

charge, the defendant must have either requested the instruction or objected to its

omission. Tolbert, 306 S.W.3d at 781; Vega v. State, 394 S.W.3d 514, 519 (Tex.

Crim. App. 2013). A defendant is required to do only one of the two to preserve

error; he is not required to both object and request. Vasquez v. State, 919 S.W.2d

433, 435 (Tex. Crim. App. 1996) (interpreting TEX. CODE CRIM. PROC. ANN. arts.

36.14 and 36.15 concerning objections to court’s charge and requested special

charges).

      An objection must be made in writing or on the record. TEX. CODE CRIM.

PROC. ANN. art. 36.14. Likewise, a request for an instruction on a defensive issue


                                          5
must be in writing or on the record and accompanied by a request that it be given

to the jury. TEX. CODE CRIM. PROC. ANN. art. 36.15. Because it is a defensive issue,

failure of a defendant to either object or request an instruction waives the issue for

appeal. Delgado, 235 S.W.3d at 250; 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.”).

A.       Lesser-included offense of robbery

         In his first issue, Ducksworth contends that the trial court erred by not

instructing the jury on the lesser-included offense of robbery. Ducksworth does not

dispute that he failed to request an instruction on robbery or object to its omission.

And he acknowledges that the Texas Court of Criminal Appeals held, in Tolbert,

that trial courts do not have a duty to sua sponte instruct on lesser-included

offenses. Ducksworth argues that Tolbert was wrongly decided and requests that

we conclude that the trial court had a duty to sua sponte instruct on the defensive

issue.

         We are bound by the decision of the Court of Criminal Appeals and are

without authority to conclude that a trial court has a duty to sua sponte instruct on

defensive issues under Texas law. Because Ducksworth neither objected to the trial

court’s failure to include an instruction on the lesser-included offense of robbery


                                          6
nor requested that the trial court include the instruction, we conclude that

Ducksworth has waived his complaint about the omission of the defensive

instruction. Tolbert, 306 S.W.3d at 781; Delgado, 235 S.W.3d at 250; Vega, 394

S.W.3d at 519.

      We, therefore, overrule Ducksworth’s first issue.

B.    Lesser-included offense of theft

      In his second issue, Ducksworth contends that the trial court erred by not

instructing the jury on the lesser-included offense of theft. Ducksworth argues that

his actions were sufficient to preserve the issue of charge error with regard to this

instruction.

      Twice during the charge conference, the trial court asked Ducksworth if he

had “any objections, changes, modifications or additions to the proposed charge.”

Both times Ducksworth raised the issue of an instruction on theft. In the first

instance, the court responded by going off the record to allow time for Ducksworth

to review a decision from the Court of Criminal Appeals. 1 A second break was

taken after the trial court asked Ducksworth whether he had a proposed instruction

for theft to tender to the court. Following the second break—and without tendering

any proposed instructions—Ducksworth announced, through counsel: “I reviewed

the charge. I don’t have any additions or deletions.”


1
      Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011).
                                          7
      Ducksworth asserts that it is “unclear whether [he] meant that [he] did not

have additional requests other than the instruction on theft or that [he] did not have

any requested instructions, including one on theft.” Based on this assertion of

ambiguity, Ducksworth contends that he preserved error. The exchange is quoted

below to provide context:

      COURT:       [Counsel], have you had enough time to review the
                   proposed charge of the Court?

      DEFENSE: Yes, sir, I have.

      COURT:       Do you have any objections, changes, modifications or
                   additions, other than [the State] adding to serious bodily
                   injury?

      DEFENSE: We had a request for a lesser-included.

      COURT:       All right.

      DEFENSE: For theft. We believe that the evidence does show, or
               some evidence raises an issue with the jury as to whether
               or not theft should be considered. Even though theft is
               already a part of the original offense.

                                       ****

      COURT:       All right. [Counsel], I’ll let you review Sweed from 351
                   S.W.3d, Court of Criminal Appeals opinion. And it
                   seems to me just if they were to disbelieve certain
                   evidence that’s not enough for a lesser and it seems like
                   that’s all we’ve got here. They would either have to
                   disbelieve. But I’ll let you look at it and tell me why you
                   think that would not preclude the lesser in this case. So
                   I’ll let you look at it. I’ll let the State look at it. If you
                   would be back here in five minutes. Diana, go ahead and
                   run it. Put “serious bodily injury” in there. Leave lesser
                   out at this time and then I’ll hear from [counsel].
                                          8
      [off record]

                                       ****

      COURT:         All right. Do you have any objections, changes,
                     modifications or additions to the proposed charge?

      DEFENSE: Only that we would raise the issue of including a lesser-
               included offense.

      COURT:         Do you have a proposed instruction you would like to
                     provide me?

      [off record]

      COURT:         All right. Back on the record. The record will reflect
                     counsel for the State, counsel for the Defendant, the
                     Defendant are present. [Counsel], is there something that
                     you wanted to put on the record?

      DEFENSE: I reviewed the charge. I don’t have any additions or
               deletions.

      COURT:         Okay. Thank you very much. And I will approve the
                     charge.

(Emphasis added.)

      By statute, a defendant must provide to the trial court the defensive

instruction that he wants included in the jury’s charge; he must provide it in

writing or through dictation on the record. TEX. CODE CRIM. PROC. ANN. art. 36.15.

      The trial court specifically asked Ducksworth whether he had a proposed

instruction to provide the court, and he failed to give one. Instead, he stated that he

did not have “any additions or deletions” to the court’s charge.



                                          9
      Because Ducksworth did not tender a written lesser-included offense

instruction or dictate one on the record, he failed to make a proper request. TEX.

CODE CRIM. PROC. ANN. art. 36.15; Hunter v. State, 647 S.W.2d 657, 658 (Tex.

Crim. App. 1983) (requiring that lesser-included offense instructions be “properly

requested”); cf. Posey, 966 S.W.2d at 60 (stating that there must be trial court error

before appellate court will evaluate harm) (citing TEX. CODE CRIM. PROC. ANN. art.

36.19).

      Further, the record reveals that Ducksworth withdrew the issue from

consideration by announcing to the trial court, “I don’t have any additions or

deletions” to the charge, which only included the offense of aggravated robbery.

Because Ducksworth withdrew his request for a defensive jury instruction on theft,

the trial court had no duty to include the instruction in its charge. Tolbert, 306

S.W.3d at 781 (holding that trial court has no sua sponte duty to include in jury

charge unrequested defensive instruction on lesser-included offense). And the

omission of the instruction cannot be error. Posey, 966 S.W.2d at 61 (“When,

under general rules of procedural default, an appellate court holds a defendant has

procedurally defaulted a particular claim by not timely raising it in the trial court,

the appellate court does not concede that error has occurred.”).2


2
      Ducksworth does not contend that his request should be treated as an objection or
      analyzed under the rules for objecting to charge error. Even if we were to consider
      the request to be an objection, Ducksworth failed to preserve error because he
                                          10
C.    Tolbert is not distinguishable

      Ducksworth attempts to distinguish Tolbert by characterizing his trial

strategy as something other than an “all or nothing strategy of going for an outright

acquittal.” See Posey, 966 S.W.2d at 63; Tolbert, 306 S.W.3d at 781 (holding no

sua sponte duty to give defensive instruction when record clearly reflected that

defense did not want instruction and was, instead, pursuing defensive strategy to

“go for broke” for an acquittal) (quoting Haynes, 273 S.W.3d at 191). Ducksworth

argues:

      Defense counsel did not—and indeed, could not—contend that
      [Ducksworth] was not guilty of any offense because the evidence was
      uncontradicted that he took . . . [the] pipe over the protestations of the
      Vera brothers. Counsel unsuccessfully requested a charge on theft and
      argued during summation that appellant was guilty of theft.
      Accordingly, Tolbert does not apply because appellant took the pipe
      and counsel did not adopt an “all or nothing strategy of going for an
      outright acquittal.”

      The record does not support Ducksworth’s contention. Ducksworth’s wife

testified that Ducksworth spoke to another construction worker before being

confronted by the Veras and that she understood that the construction worker gave

Ducksworth permission to take the pipe. Ducksworth’s closing argument

highlighted that defensive position: “If you believe the testimony of Ms. Peters,



      failed to obtain a ruling on any such objection. See Vazquez v. State, 919 S.W.2d
      at 435; Smith v. State, No. 03-00-00729-CR, 2001 WL 838037, at *2 (Tex. App.—
      Austin July 26, 2001, pet. ref’d) (requiring ruling on objection to lack of lesser-
      included offense instruction to preserve error).
                                          11
Mr. Ducksworth walked over to the guy who was on the dozer to ask permission if

he could take it. She says that the person nodded. Mr. Ducksworth picked up the

pipe and began putting it in his truck.” Ducksworth’s closing continued by arguing

that Ducksworth and Peters “tried to tell [the police] what happened, that they were

given permission to get the pipe.” Finally, at the conclusion of closing arguments,

Ducksworth’s counsel argued:

      I think that once you review the evidence you will find that the State
      has failed to meet its burden of proving to you beyond a reasonable
      doubt that Mr. Ducksworth intentionally placed Jose Vera or Ruben
      Vera in fear of imminent bodily harm or that he completed
      Aggravated Robbery. At most, what you have here is a theft case if
      the guy on the bulldozer never assisted.

(Emphasis added.)

      The record does not support Ducksworth’s contention that he admitted to

theft as opposed to adopting an all-or-nothing defensive trial strategy. Instead,

Ducksworth abandoned the lesser-included offense of theft and argued in closing

that he was not guilty because he had permission to take the pipe or, conversely, if

the jury did not believe he was given permission, that the State did not meet its

burden of proof on all elements of the only charged offense—aggravated robbery.

Ducksworth is unable to distinguish Tolbert on this record. 3



3
      We do not suggest that distinguishing Tolbert in this manner could result in a
      different outcome; we conclude only that Tolbert is not distinguishable despite
      Ducksworth’s arguments to the contrary.
                                         12
      Having found that the trial court did not commit error by omitting an

instruction on theft, we overrule Ducksworth’s second issue.

                                   Conclusion

      Having overruled both of Ducksworth’s issues, we affirm the trial court’s

judgment.

                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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




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