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Palacio v. State

Court of Appeals of Texas, Fourteenth District

June 27, 2019


          On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 1470978

          Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.


          Kem Thompson Frost Chief Justice.

         Appellant Alberto Palacio appeals his conviction for burglary of a habitation. In three issues he complains that the trial court (1) allowed the State to define and discuss "deadly weapon" during voir dire, (2) failed to grant a mistrial, and (3) failed to instruct the jury on an alleged lesser-included offense of assault. We affirm.

         I. Factual and Procedural Background

         Appellant had a violent history with his sister, the complainant, who had suffered physical abuse at appellant's hands since childhood. Their mother lived with the sister and the sister's two children. Appellant was not welcome on the sister's property. Posted notices stated appellant was banned from the premises. Nonetheless, appellant would visit his mother at the sister's house while the sister was at work. On the day in question, appellant was visiting his mother at the sister's house. Appellant's mother asked appellant to leave before the sister returned home. He did not.

         When the sister came home and found appellant in her yard with their mother, the sister told appellant to leave. Then the two women went inside the house. The sister asked the mother to call the police. Before help arrived, appellant smashed a patio chair through the front-door window. He then grabbed the sister through the window as she was trying to keep the front door closed. Appellant began twisting and turning her with his hands, holding on to her upper body. The movement caused the window glass to cut the sister's flesh. She suffered gashes in her arms. Both the mother and the sister feared that appellant would harm the sister severely. Appellant threatened to kill his sister and then fled the premises before the police arrived.

         Appellant was charged with burglary of a habitation with intent to commit assault. The primary paragraph of the indictment contained the elements of a charge of burglary under Penal Code section 30.02(a)(1) involving entry of a habitation with intent to commit assault. The second paragraph contained an allegation that appellant used and exhibited a deadly weapon, namely, a broken glass, during the commission of the offense. The last two paragraphs contained allegations of two prior convictions, one for aggravated assault with a deadly weapon (2002) and the other for assault of a family member (2010).

         The jury found appellant guilty as charged. Appellant pleaded "true" to both enhancement paragraphs. The trial judge made a negative finding on the deadly-weapon issue, assessed punishment, and sentenced appellant to forty-five years' confinement.

         II. Issues and Analysis

         A. Did the trial court commit harmful error when it permitted the State to define "deadly weapon" during voir dire?

         In his first issue, appellant asserts that the trial court erred when it overruled his objection to the State defining "deadly weapon" during voir dire after he had elected that the trial court assess punishment.

         Did appellant preserve error on his complaint?

         We first consider whether appellant preserved error on his complaint. In conducting voir dire, the trial judge began by introducing the court, the process, the parties, and the subject matter of the case. Midway in this first phase, the judge read the indictment's primary paragraph and deadly-weapon paragraph. After interacting with the jury panel, the trial court called on the attorneys to introduce themselves and to conduct their own voir dire. At that juncture, appellant's attorney lodged an anticipatory objection to prevent the State from defining the term "deadly weapon" during its voir dire examination. Appellant's counsel argued that because the trial judge would be deciding punishment, the judge also should make the fact-finding on the deadly-weapon issue, and thus the matter would not be relevant to jury's consideration.

         The trial court did not immediately decide at which phase the deadly-weapon issue would be determined, but the trial court decided regardless that "the State should be allowed to define a deadly weapon is since that appears to be relevant to their case-in-chief of burglary of a habitation with intent to commit assault." Appellant's counsel argued that if the jury was not making a decision on the deadly-weapon issue, a discussion about the definition of "deadly weapon" would taint the jury determination of appellant's guilt. The trial court overruled the objection but restricted the State from "explain[ing] anything about the special issue and that they're going to get a charge" on the issue, and limited the State to "defin[ing] what a deadly weapon is under the law."

         The State read the Penal Code's definition of "deadly weapon" and then solicited thoughts from the panel about their impression of objects that fit the definition. Appellant's counsel raised no further objection. Appellant's counsel engaged the panel on a definition using his own hypothetical.

         The State contends appellant did not preserve error on his complaint that the trial court overruled appellant's objection to the State's discussion of the legal definition for "deadly weapon" because appellant did not first object when the trial court read the deadly-weapon paragraph to the panel. We presume for the sake of argument that appellant timely ...

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