MERCED BENJAMIN FONSECA v. THE STATE OF TEXAS--Appeal from 24th District Court of Victoria County

NUMBER 13-01-153-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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  MERCED BENJAMIN FONSECA, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

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On appeal from the 24th District Court

of Victoria County, Texas.

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O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Justice Rodriguez

A jury found appellant, Merced Benjamin Fonseca, guilty of felony driving while intoxicated (DWI). See Tex. Pen. Code Ann. ' 49.04 (Vernon Supp. 2002). The trial court assessed punishment at twelve years imprisonment in the Institutional Division of the Texas Department of Corrections.[1] By one point of error, Fonseca contends the trial court erred in failing to instruct the jury on a lesser included offense. We affirm.

In his sole point of error, Fonseca asserts public intoxication is a lesser included offense of DWI, and, thus, a jury instruction on a lesser included offense should have been given.

Section 49.04 of the Texas Penal Code provides A[a] person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.@ Id. at ' 49.04(a). Section 49.02 states A[a] person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.@ Id. at ' 49.02(a). However, section 49.02(d) also clearly states A[a]n offense under this section is not a lesser included offense under Section 49.04.@ See id. at 49.02(d). Thus, public intoxication is prevented by statute from being a lesser included offense of DWI. See Ford v. State, 38 S.W.3d 826, 842 n.3 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d).

In reviewing alleged jury charge error, we must determine whether the charge was erroneous, and if so, whether the error was harmful to the defendant. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Jones v. State, 900 S.W.2d 103, 104 (Tex. App.BHouston [14th Dist.] 1995, no pet). Because public intoxication cannot be a lesser included offense of DWI, the court did not err in denying Fonseca=s request. The first prong of Almanza fails. See Almanza, 686 S.W.2d at 171.

Furthermore, Fonseca=s reliance on Royster v. State, 622 S.W.2d 422 (Tex. Crim. App. [Panel op.] 1981), and Mello v. State, 806 S.W.2d 875 (Tex. App.BEastland 1991, pet. ref=d), is misplaced. Neither case involves a statute that precludes an offense from being a lesser included offense of the primary charge. In Mello, the facts did not prove delivery of cocaine as charged, but did prove the defendant was in possession of cocaine, a lesser included offense. Mello, 806 S.W.2d at 878. Similarly, in Royster, the question was whether the evidence raised issues which would have required the court to submit to the jury the requested charges on the lesser included offenses of assault causing bodily injury and theft, when the charged offense was robbery. See Royster, 622 S.W.2d at 443-44.

Finally, Fonseca relies on Attorney General Opinion MW-197, 1980, in which the attorney general concluded public intoxication could be a lesser included offense of DWI. However, this 1980 opinion was issued prior to September 1, 1994, the effective date of section 49.02. See Tex. Pen. Code Ann. ' 49.02 (Vernon Supp. 2002).

Fonseca=s sole point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.3.

Opinion delivered and filed

this 18th day of April, 2002.

[1]Fonseca=s punishment was enhanced pursuant to sections 49.04 and 49.09 of the Texas Penal Code. See Tex. Pen. Code Ann. ''49.04 & 49.09 (Vernon Supp. 2002). The court also assessed a fine, costs of court, and the suspension of Fonseca=s driver=s license.