Cory Don Crosby v. The State of Texas Appeal from 52nd District Court of Coryell County (memorandum opinion)
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-17-00179-CR CORY DON CROSBY, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 52nd District Court Coryell County, Texas Trial Court No. 16-23730 Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION A Coryell County jury found Cory Don Crosby guilty of injury to a child.1 After Crosby pled true to the State’s enhancement allegation, the trial court sentenced him to twenty years’ imprisonment and ordered him to pay a $5,000.00 fine. In his sole point of error on appeal, Crosby argues that the trial court erred by failing to sua sponte instruct the jury on lesser-included offenses of criminally negligent or reckless injury to a child. In Tolbert v. State, the Texas Court of Criminal Appeals explained that while trial courts are obligated to prepare a jury charge that accurately states the law applicable to the case, a “trial court ha[s] no duty to sua sponte instruct the jury on . . . lesser-included offense[s],” because they are “not ‘applicable to the case’ absent a request by the defense for its inclusion in the jury charge.” Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). In explaining why there is no duty to sua sponte include lesser-included offenses in the jury charge, the Texas Court of Criminal Appeals wrote that “lesser-included instructions are like defensive issues,” which “frequently depend on trial strategy and tactics,” and counsel can engage in the valid trial strategy of the “all or nothing” approach. Id. at 780, 781 (quoting Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007)). Here, it is undisputed that Crosby’s counsel failed to request the inclusion of any lesserincluded offenses in the jury charge. “It is clear that the defense may not claim error successfully on appeal due to the omission of a lesser included offense if the defense refrained from requesting 1 Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3. 2 one.” Tolbert, 306 S.W.3d at 781 (quoting Delgado, 235 S.W.3d at 250). Because the trial court has no duty to instruct the jury on lesser-included offenses in the absence of a request by the defense, we overrule Crosby’s sole point of error. We affirm the trial court’s judgment. Bailey C. Moseley Justice Date Submitted: Date Decided: March 22, 2018 March 23, 2018 Do Not Publish 3
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