Opinion
NO. 01-16-00312-CR
01-30-2018
GERARDO ARREDONDO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court Harris County, Texas
Trial Court Case No. 1403754
MEMORANDUM OPINION
Gerardo Arredondo appeals from his conviction for capital murder on the ground that the trial court erroneously failed to instruct the jury on the lesser-included offense of murder. We affirm.
BACKGROUND
A jury found Arredondo guilty of capital murder for his role in the fatal shooting of a drug dealer during a robbery. See TEX. PENAL CODE §§ 19.02(b)(1), 19.03(a)(2). As the State did not seek the death penalty, the trial court assessed his punishment at imprisonment for life without parole. See id. § 12.31(a)(2).
DISCUSSION
Arredondo contends that the trial court erred in failing to instruct the jury on the lesser-included offense of murder even though he did not request this instruction. See TEX. PENAL CODE § 19.03(c). He further contends that this error caused him egregious harm under Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
Trial courts are obligated to prepare a jury charge that accurately states the law that applies to the offense. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). But trial courts are not required to include an instruction on a lesser-included offense or a defensive issue unless a defendant requests it or objects to its omission because the advisability of such an instruction often is a matter of trial strategy. Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010). Thus, a defendant may not claim error on appeal based on the trial court's failure to give a lesser-included offense instruction unless he sought the instruction at trial. Id. at 781.
In Tolbert, the defendant was tried for and convicted of capital murder. Id. at 777-78. At trial, she did not request that the jury be charged on the lesser-included offense of murder. Id. at 778. Instead, she sought an acquittal on the basis that she did not commit capital murder. Id. On appeal, however, she argued that the trial court had to include the lesser-included offense instruction even though she had not objected to its omission from the charge. Id. at 778-79. The Court of Criminal Appeals disagreed; it held that the trial court did not err in failing to instruct the jury on the lesser-included offense, as the lesser-included offense was not applicable to the case in the absence of a request or objection by the defendant. Id. at 781. The Court noted that the omission of this instruction from the charge was consistent with the defendant's "all or nothing" trial strategy of seeking an outright acquittal. Id.
The charge given to the jury in this case included a defensive instruction on duress but not on the lesser-included offense of murder. The trial court discussed the jury charge with counsel but the substance of these discussions was not made part of the record. Nor does the record include any objections to the jury charge, and Arredondo does not contend that he requested a lesser-included offense instruction or objected to its absence. The trial court therefore did not err in failing to instruct the jury on the lesser-included offense. Id. at 780-81. Accordingly, there was no jury-charge error to which Almanza's analysis concerning egregious harm could apply. Id. at 779, 782.
Arredondo contends that Tolbert is distinguishable. Unlike the defendant in that case, he argues that he is not "trying to game the appellate system" by raising the omission of a lesser-included offense instruction after unsuccessfully pursuing an acquittal on another basis in the trial court.
We reject Arredondo's argument for two independent reasons. First, Tolbert states a bright-line rule: a defendant may not claim error based on the trial court's failure to give a lesser-included offense instruction that he did not seek at trial through request or objection. Id. at 781-82; see also Bowen v. State, 374 S.W.3d 427, 430 (Tex. Crim. App. 2012) (failure to seek inclusion of lesser-included offense instruction at trial results in waiver of right to complain about its omission on appeal). While the Court's rationale for this rule rested on the strategic considerations that often underlie the decision to seek or forgo an instruction on a lesser-included offense, Tolbert did not hold that defendants could claim error so long as they could show that they were not "trying to game the appellate system" by first seeking outright acquittal at trial and then reversal based on the failure to give an unrequested lesser-included offense instruction on appeal.
Second, even if his trial strategy was relevant, Arredondo did seek acquittal on two grounds. He asserted that he acted under duress, which his counsel argued in closing. Had the jury accepted this affirmative defense, it would have acquitted Arredondo. TEX. PENAL CODE § 8.05(a); Wood v. State, 18 S.W.3d 642, 652 (Tex. Crim. App. 2000). In closing, defense counsel additionally argued that the State had charged Arredondo with capital murder and nothing else:
The State has charged him with capital murder. The government is saying this young man is guilty of capital murder. There is no aggravated robbery. There is no theft from a person. There is no unlawful use of a weapon. It's none of that. It's capital murder, or it's nothing. So if you go back there and you think to yourself, you know what, I think he's guilty of something, can we just call it aggravated robbery and give him a few years or put him on probation, no, you don't have that opportunity. What you have to do is decide whether or not—whether the State has proved its case beyond a reasonable doubt for capital murder. That's what you have to decide.Thus, like the defendant in Tolbert, Arredondo asserted an "all or nothing" defense that was entirely consistent with the strategic omission of a lesser-included offense instruction. The failure of his trial strategy does not make the omission of a lesser-included offense instruction that he never sought erroneous. Tolbert, 306 S.W.3d at 781-82.
CONCLUSION
We affirm the judgment of the trial court.
Jane Bland
Justice Panel consists of Chief Justice Radack and Justices Higley and Bland. Do not publish. TEX. R. APP. P. 47.2(b).