Appeal from the 174th District Court Harris County, Texas
Trial Court Cause No. 1470978
consists of Chief Justice Frost and Justices Zimmerer and
Thompson Frost Chief Justice.
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.
Factual and Procedural Background
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
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.
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).
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
Issues and Analysis
Did the trial court commit harmful error when it permitted
the State to define "deadly weapon" during voir
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.
appellant preserve error on his complaint?
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.
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."
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.
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 ...