                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NOS. 02-10-00277-CR
                                  02-10-00278-CR


DERRICK LEONARD                                                      APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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     FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      Derrick Leonard pled guilty to a jury in two different cause numbers to theft

and burglary of a motor vehicle. In a single issue, appellant contends the trial

court erred by refusing to include his requested jury instruction in the charge in

the theft case. We affirm.




      1
       See Tex. R. App. P. 47.4.
      Appellant was intoxicated when he committed the theft offense.2             He

requested an instruction in the jury charge on punishment stating that evidence

of temporary insanity caused by intoxication “should be considered in mitigation

of the penalty, if any, attached to the offense.” [Emphasis added.] The trial court

instructed the jury instead that evidence of temporary insanity caused by

intoxication “may, but is not required to be, considered in mitigation of the

penalty, if any, attached to the offense.” [Emphasis added.]

      Section 8.04 of the penal code provides that although voluntary

intoxication is not a defense to the commission of a crime, “[e]vidence of

temporary insanity caused by intoxication may be introduced by the actor in

mitigation of the penalty attached to the offense for which he is being tried.” Tex.

Penal Code Ann. § 8.04(a), (b) (Vernon 2003). Appellant contends that the trial

court’s instruction fails because it does not direct the jury to actually consider any

evidence of temporary insanity caused by intoxication. But “the law does not

require a juror to consider any particular piece of evidence as mitigating; all the

law requires is that a defendant be allowed to present relevant mitigating

evidence and that the jury be provided a vehicle to give mitigating effect to that

evidence if the jury finds it to be mitigating.” Raby v. State, 970 S.W.2d 1, 3

(Tex. Crim. App.), cert. denied, 525 U.S. 1003 (1998). Accordingly, the trial




      2
       Appellant does not challenge his burglary conviction.


                                          2
court’s instruction was proper.3 See Ramos v. State, 991 S.W.2d 430, 434–35

(Tex. App.––Houston [1st Dist.] 1999, pet. ref’d). We overrule appellant’s sole

issue and affirm the trial court’s judgments.



                                                    TERRIE LIVINGSTON
                                                    CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: February 10, 2011




      3
        Moreover, appellant’s requested charge, which tracks the pattern jury
charge, is more appropriate to a case in which the defendant has pled not guilty,
and the jury must be instructed that the temporary-insanity-caused-by-
intoxication is not to be considered at guilt-innocence, but rather, “should be
considered” instead as relevant to punishment. Here, appellant pled guilty to the
jury, so the trial court’s departure from the pattern jury charge, while nevertheless
a proper statement of the law, was also appropriately tailored to the situation at
hand.


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