Alonzo v. State

1

Ruben Alonzo, Appellant v. The State of Texas, Appellee

No. 03-22-00518-CR

Court of Appeals of Texas, Third District, Austin

August 30, 2023

Do Not Publish

FROM THE 331ST DISTRICT COURT OF TRAVIS COUNTY NO D-1-DC-20-300050, THE HONORABLE CHANTAL ELDRIDGE, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Baker and Triana

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

A jury found Ruben Alonzo guilty of "assault family violence." See Tex. Penal Code § 22.01(a). The trial court imposed a two-year term of community supervision conditioned on service of thirty days in jail. Alonzo complains that he was not indicted for the misdemeanor assault for which he was convicted and that the court erred by overruling his objection to the submission of a jury charge on that offense. He also contends that prosecution for the misdemeanor assault offense was barred by limitations. We will affirm the judgment.

BACKGROUND AND APPLICABLE LAW

The grand jury indicted Alonzo on May 4, 2021, for felony assault with family violence by impeding the normal breathing and circulation of blood by applying pressure to the victim's throat or neck or by blocking her nose or mouth. The grand jury also indicted Alonzo for a misdemeanor assault. At trial, the court instructed the jury to determine Alonzo's guilt for "Assault Family Violence Strangulation" and, over Alonzo's objection, for "the lesser included offense of Assault Family Violence." The jury found Alonzo guilty of the lesser offense.

Alonzo appealed, representing himself pro se. Although we construe pro se briefs liberally, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable rules of procedure. Griffis v State, 441 S.W.3d 599, 612 (Tex. App.- San Antonio 2014, pet. ref'd); Kindley v. State, 879 S.W.2d 261, 264 (Tex. App.-Houston [14th Dist.] 1994, no pet.); see Tex. R. App. P. 38.9. Generally, to preserve error for appeal, a defendant must make a timely, specific objection, request, or motion to the trial court stating the specific grounds for the ruling sought by the complaining party, unless the specific grounds were apparent from the context. Tex.R.App.P. 33.1(a); Burg v. State, 592 S.W.3d 444, 448-49 (Tex. Crim. App. 2020). An appellant requesting a partial reporter's record must include in the request a statement of the points or issues to be presented on appeal. Tex. R. App. 34.6(c)(1). Appellant's brief must state concisely all issues or points presented for review and set forth clear and concise arguments with appropriate citations to authorities and the record. Id.. R. 38.1(f), (i); see Wolfe v. State, 509 S.W.3d 325, 343 (Tex. Crim. App. 2017) (discussing appellate briefing requirements).

DISCUSSION

Alonzo raises eight issues. He generally does not cite to the record and discusses and cites authorities for only the issues concerning the jury charge on the "lesser included" offense of assault family violence.

Three issues are waived for failure to supply appropriate citations to authority and to the record. See Tex. R. App. P 38.1(i); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000). Further, even if we assume these issues were preserved, they fail on their merits. Alonzo complains of the court's grant of the State's motion in limine as somehow violating his right to self-representation because he did not participate in the discovery process. Alonzo does not demonstrate the connection between the grant of the motion in limine and his participation in the discovery process or his right to self-representation. The grant of a motion in limine is not ordinarily sufficient to preserve for appellate review a complaint regarding the exclusion of evidence because there is no adverse ruling on the admissibility of such evidence until it is tendered and an objection interposed. Armitage v. State, 637 S.W.2d 936, 938 (Tex. Crim. App. 1982). Alonzo does not explain why or persuade us that his complaint is an exception to this general rule. Alonzo complains further that he did not sign "the certificate of compliance." He does not explain what this certificate is or why the absence of his signature from the certificate demonstrates reversible error by the trial court. He also complains that the prosecutor offered to dismiss the lesser-included offense a month and a half after he was found guilty, but Alonzo declined because, he says, accepting the dismissal deal would save the prosecutor from legal error. This complaint is not supported by the record before us. Further, Alonzo does not explain how a post-trial offer to dismiss that he declined-leaving the judgment unchanged-shows reversible error by the trial court. We resolve all three issues in favor of the judgment.

Three issues relate to the jury charge. Alonzo contends that he objected to inclusion of the instruction on the lesser-included offense. He also complains that he was not indicted or reindicted for that offense and that, therefore, the State violated his due-process right to know what charges have been brought against him and the nature of those charges. We review asserted jury-charge error in two steps: first, we determine whether error exists; if it does, we then evaluate whether sufficient harm resulted from the error to require reversal. See Alcoser v. State, 663 S.W.3d 160, 165 (Tex. Crim. App. 2022) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)). The standard of review for jury-charge error depends on whether the error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza, 686 S.W.2d at 171). If error was preserved with a timely objection, then such error is reversible if it caused "some harm." Almanza, 686 S.W.2d at 171. When the appellant complains of jury-charge error on appeal to which he did not object at trial, we must determine whether the error caused the appellant "egregious harm." Id. Under both standards, appellant must have suffered some actual-rather than merely theoretical-harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).

Alonzo made an unspecified objection to the inclusion of the lesser-included offense in the jury charge. Alonzo did not cite to a written objection in the clerk's record. In the one-page excerpt from the discussion of the jury charge requested by the State, the trial court stated to Alonzo, "You have one objection because you did not want the lesser included, assault family violence, included in the instructions. The State has requested it, and I am granting it." This excerpt does not reveal the basis of Alonzo's objection other than that he did not want the court to give the instruction on the misdemeanor offense. In order to preserve error on appeal, a party must specifically object and obtain a ruling from the trial court, or object to the trial court's refusal to rule. Tex.R.App.P. 33.1. But see Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (trial judge ultimately responsible for accuracy of jury charge and accompanying instructions, so "[a] consequence of this sua sponte duty is that, even if the defendant 'fails to object' to some error in the court's charge on the 'law applicable to the case,' the resulting claim of jury-charge error is not necessarily forfeited on appeal."). Errors that are presented at trial and preserved are reviewed under the "some harm" standard, while errors that are not presented at trial are reviewed under the "egregious harm" standard. Mendez, 545 S.W.3d at 552 (citing Almanza, 686 S.W.2d at 171).

Even if we assume that Alonzo's objection at trial fully preserved his appellate complaints that the inclusion of the misdemeanor assault charge was error because it was not properly included in the indictment, those complaints do not show error in the record presented. Trial courts may instruct a jury on a lesser-included offense on the State's request if there is sufficient evidence to support a conviction on a lesser-included offense, even where the defendant did not request the charge and even over the defendant's objection. Grey v. State, 298 S.W.3d 644, 651 (Tex. Crim. App. 2009); Humphries v. State, 615 S.W.2d 737, 738 (Tex. Crim. App. [Panel Op.] 1981); Gordy v. State, No. 05-19-00444-CR, 2022 WL 632169, at *9 (Tex. App.-Dallas Mar. 4, 2022, pet. ref'd) (mem. op.). When the defense requests instruction on a lesser-included offense, courts assess two issues: (1) Are the elements of the lesser-included offense included within the proof necessary to establish the elements of the charged offense? (2) Is there evidence in the record that could allow a jury to find the defendant guilty of only the lesser-included offense? See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). However, when the State requests the instruction, the second prong is inapplicable. Grey, 298 S.W.3d at 645, 649-51.

The Court of Criminal Appeals has held that

An offense is a lesser-included offense of another offense, under Article 37.09(1) of the Code of Criminal Procedure, if the indictment for the greater-inclusive offense either: 1) alleges all of the elements of the lesser-included offense, or 2) alleges elements plus facts (including descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice) from which all of the elements of the lesser-included offense may be deduced.

Ex parte Watson, 306 S.W.3d 259, 273 (Tex. Crim App. 2009) (op. on reh'g) (citations omitted). The elements of the lesser-included offense do not have to be pleaded in the indictment if they can be deduced from facts alleged in the indictment. State v. Meru, 414 S.W.3d 159, 162 (Tex. Crim. App. 2013). Thus, Alonzo's appellate contentions that the judgment...