Robert Lee Castellon v. State

NO. 07-08-0461-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

SEPTEMBER 14, 2009

                                       ______________________________

ROBERT LEE CASTELLON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 57,953-C; HONORABLE ANA ESTEVEZ, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION

          Appellant, Robert Lee Castellon, was convicted of aggravated assault with a deadly weapon. Appellant was sentenced to serve 20 years confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ). By a single issue, appellant contends that the trial court committed reversible error when it did not sua sponte instruct the jury on the lesser-included charge of deadly conduct. Disagreeing with appellant’s contention, we affirm.

Factual and Procedural Background

          Appellant does not contest the sufficiency of the evidence, therefore, we will only address so much of the factual background as is necessary for our opinion. Appellant and Mellissa Loya, one of the daughters of the complaining witness, Leobardo Loya, were living together with their child. Their relationship had been somewhat tumultuous. On the evening in question, Mellissa had spoken on the telephone with appellant and, during the conversation, appellant advised Mellissa that she should go to her parent’s home. Mellissa proceeded to her parent’s home, and appellant arrived in his SUV. Mellissa and appellant began to have an argument when Leobardo, who had been observing from the sidewalk, started toward the SUV. Appellant got in his truck and started leaving and, when he got approximately a half a block down the street, turned around and came back toward Leobardo’s home jumping the curb in his SUV and driving toward Mellissa and Leobardo. The SUV ran into some large flower pots immediately in front of Leobardo and stopped. Appellant backed out rapidly and drove off, apparently going around the block. He reappeared and drove onto the lawn a second time. Again, appellant drove his vehicle toward Mellissa and Leobardo, this time stopping when his windshield struck a branch on a tree in the yard.

          As a result of this activity, appellant was indicted for aggravated assault with a deadly weapon. The vehicle was the alleged deadly weapon. At the conclusion of the evidence at trial, the trial court prepared a charge to the jury on the law. The charge included a charge on the indicted offense of aggravated assault with a deadly weapon and simple assault. At the conference with the attorneys, appellant’s trial counsel made no objection to the proposed charge nor did trial counsel request a charge on the lesser-included offense of deadly conduct. The jury subsequently found appellant guilty of aggravated assault with a deadly weapon and assessed his punishment at confinement in the ID-TDCJ for 20 years. Appellant now complains of the failure of the trial court to include, sua sponte, a charge on deadly conduct. We will affirm.

Analysis

          Appellant’s entire analysis is based upon the assumption that the trial court has a sua sponte duty to charge the jury on a lesser-included offense, even though there was neither objection to the charge nor request for such charge. Appellant asserts that the trial court’s duty arises under the general requirements of article 36.14 of the Texas Code of Criminal Procedure. According to appellant, even though no objection was lodged at trial, the action of the trial court in not granting the lesser-included charge sua sponte is reviewed by an appellate court under an egregious harm standard as set forth in Ngo v. State. See Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005). The Ngo opinion

cites to Almanza v. State, which is the seminal opinion on charge error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Almanza determined that if a defendant failed to object to the trial court’s omission or erroneous description of “the law applicable to the case” in the court’s charge, that failure could result in reversible error if the error caused egregious harm to the defendant.

          However, as the Texas Court of Criminal Appeals noted in Delgado v. State, Almanza did not address the question of who is responsible for deciding what is “the law applicable to the case.” Delgado v. State, 235 S.W.3d 244, 249 (Tex.Crim.App. 2007). Delgado answers the question by stating that, obviously, it is the trial judge who is responsible for the accuracy of the charge and accompanying instructions and, further, the trial judge has an absolute sua sponte duty to prepare a charge that accurately sets out law applicable to specific offense charged. Id. The court’s choice of words “specific offense charged” was not simply fortuitous, as was demonstrated when discussing other matters contained in the charge. The requirement for deciding what is the law applicable to the case, however, does not translate to a like duty to sua sponte instruct a jury on all potential defensive issues, lesser-included offenses, or evidentiary issues. Id. The court explained that those types of enumerated issues often depend upon trial strategy and tactics. Id. (citing Posey v. State, 966 S.W.2d 57, 63 (Tex.Crim.App. 1998)). These issues are better left to the attorney and the client and are not, therefore, the “law applicable to the case,” as that phrase has been used. Id. at 250-51 (citing 43 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure § 36.50 at 201 (Supp. 2006)). Thus, in order to preserve this type of issue for appeal, an objection to the charge or a request for a charge must be made. Id. The failure to object to charge omissions of this type results in the error being waived. Darnes v. State, 118 S.W.3d 916, 921 (Tex.App.–Amarillo 2003, pet. ref’d).

          In the case before the court, the alleged charge error required an objection to the failure to include the lesser-included charge or a requested lesser-included charge. Neither were presented by trial counsel. The alleged error was not preserved for appeal. Id. Accordingly, appellant’s issue is overruled.

Conclusion

          Having overruled appellant’s single issue, we affirm the trial court’s judgment.

 

                                                                           Mackey K. Hancock

                                                                                      Justice

Publish.

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NO. 07-10-0107-CV

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL B

 

JUNE 23, 2010

 

 

JIM JONES TRIGG, JR., Attorney in Fact For

MARY JANE TRIGG,  

                                                                                         Appellant

v.

 

PATTI T. MOORE, 

                                                                                         Appellee

_____________________________

 

FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY;

 

NO. 423,500; HONORABLE CHRISTOPHER DARROW DUGGAN, PRESIDING

 

 

Order

 

 

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

 

Pending before the court is Pattie T. Moore’s motion to dismiss the appeal of Jim Jones Trigg, Jr., as attorney in fact for Mary Jane Trigg.  We deny it.

            Moore requests dismissal because Trigg moved to non-suit his original petition against Moore, sought to withdraw the non-suit, and filed a second action allegedly involving the same claims and parties.  However, she fails to cite us to any authority, much less authority holding that an appeal can be dismissed simply because it emanates from a non-suit of a claim that has been re-filed.  Nor do we find any want of jurisdiction for the notice of appeal was perfected within 30 days of the date the trial court signed its order of dismissal.  In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997) (stating that the appellate timetable begins once the formal order of dismissal is signed).

            Finally, it seems as though the eventual issue before us will entail the ability of the trial court to dismiss a proceeding per a motion to non-suit after the movant withdraws his motion.  By seeking dismissal of this appeal, Moore effectively is asking us to address that matter without the benefit of briefing by either party.  We opt not to accept her invitation to circumvent the rules of appellate procedure, especially Rule 38 (the rule applicable to briefing).

            The motion to dismiss this appeal is denied. 

                                                                                    Per Curiam