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MEMORANDUM OPINION
Nos. 04-08-00280-CR & 04-08-00281-CR
Robert CARRASCO,
Appellant
v.
The STATE of Texas,
Appellee
From the 399th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2007-CR-5104 & 2007-CR-5105
Honorable Juanita A. Vasquez-Gardner, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Marialyn Barnard, Justice
Delivered and Filed: February 25, 2009
AFFIRMED
Robert Carrasco was convicted by a jury of first degree arson and deadly conduct. The sole
issue presented in these appeals is whether the trial court erred in failing to instruct the jury on the
lesser-included offense of third degree arson. We affirm the trial court’s judgments.
Carrasco contends that the trial court erred in failing to instruct the jury on the lesser-included
offense of third degree arson because evidence was presented that Carrasco acted recklessly rather
04-08-00280-CR & 04-08-00281-CR
than with intent or knowledge. Acknowledging that he did not make a request for the inclusion of
the lesser-included offense, Carrasco argues that reversal is required under Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1986), because the record establishes egregious harm.
In Delgado v. State, 235 S.W.3d 244, 249-50 (Tex. Crim. App. 2007), the Texas Court of
Criminal Appeals analyzed a trial court’s sua sponte duties with regard to preparing a jury charge
where defense counsel does not request a lesser-included offense. The court asserted:
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. . . . . Thus, if neither
side requests a lesser included instruction, the trial court need not submit one sua
sponte.
Id. Because the trial court was not required to sua sponte include an instruction on third degree
arson, no error existed in the charge; therefore, no analysis of harm is warranted under Almanza. See
Stewart v. State, 162 S.W.3d 269, 375 (Tex. App.—San Antonio 2005, pet. ref’d) (noting Almanza
requires two-step review where error must actually exist in the charge before the court must
determine whether sufficient harm resulted from the error to require reversal).
The trial court’s judgments are affirmed.
Marialyn Barnard, Justice
DO NOT PUBLISH
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