Patrick Deon Lyons v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-94-032-CR

PATRICK DEON LYONS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 19777-CR

O P I N I O N

Patrick Deon Lyons was charged by two indictments with the capital murder of Donnie Mason and the attempted murder of Joey Hargers. See Tex. Penal Code Ann. 15.01, 19.02, 19.03 (Vernon 1994). The jury found him guilty of capital murder and of attempted voluntary manslaughter. This is an appeal from the attempted voluntary manslaughter conviction. The court sentenced Lyons to twenty-five years in prison.

In a single point, Lyons complains that the court erred in allowing his motion for new trial to be overruled by operation of law. Lyons' motion for new trial asserted that, although he was indicted for attempted murder, the evidence adduced at trial proves that he was guilty only of aggravated assault.

The jury was instructed on attempted murder, attempted voluntary manslaughter, and self-defense. The record does not reflect that Lyons objected to the charge or that he requested an instruction on aggravated assault. The standard of review in determining whether a court errs in denying a motion for new trial is abuse of discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). Lyons' motion for new trial asserted that he was guilty only of aggravated assault. Because an instruction on aggravated assault was not requested and the charge was not objected to, the court did not abuse its discretion in allowing Lyons' motion for new trial to be overruled as a matter of law.

We overrule the point and affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 24, 1995

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