Darrell Wayne Brown v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 19, 2025
• Docket: 09-23-00048-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________ NO. 09-23-00048-CR ________________

DARRELL WAYNE BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________________________________________________

On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. 22-40671 ________________________________________________________________________

MEMORANDUM OPINION

A jury found Darrell Wayne Brown guilty of manslaughter, a second-degree

felony. See Tex. Penal Code Ann. § 19.04. In his sole issue on appeal, appellant

Darrell Wayne Brown complains that the trial court erred during the guilt-innocence

phase of the trial by not submitting a lesser-included jury instruction on the offense

of criminally negligent homicide for the jury to consider. See id. § 19.05. We affirm

the trial court’s judgment.

1 Pertinent Procedural Background

In September 2022, a grand jury indicted Brown for manslaughter. At

Brown’s trial, the jury charge did not contain an instruction on the lesser-included

offense of criminally negligent homicide. Brown did not request an instruction on

the lesser-included offense of criminally negligent homicide nor did he object to its

exclusion from the charge. The jury found Brown guilty of manslaughter and

assessed punishment at ten years of incarceration. Brown timely appealed.

Analysis

In his sole issue, Brown complains that the trial court erred by not submitting

the lesser-included offense of criminally negligent homicide for the jury to consider

during the guilt-innocence phase of the trial. The State argues there was no error

because Brown did not ask the trial court to include a criminally negligent homicide

instruction and did not object to its absence from the charge.

When reviewing alleged charge error, we determine whether error existed in

the charge and, if so, whether sufficient harm resulted from the error to compel

reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). “Only if we

find error do we then consider whether an objection to the charge was made and

analyze for harm.” Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st

Dist.] 2009, pet. ref’d) (citations omitted). If charge error exists but the defendant

2 did not object to the alleged error at trial, we may reverse the judgment only if the

error is so egregious that the defendant did not receive a fair and impartial trial.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see

also Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). “Jury charge error

is egregiously harmful if it affects the very basis of the case, deprives the defendant

of a valuable right, or vitally affects a defensive theory.” Allen v. State, 253 S.W.3d

260, 264 (Tex. Crim. App. 2008) (citation omitted). In assessing the degree of harm,

we must consider the entire jury charge, the state of the evidence, the argument of

counsel, and any other relevant information revealed by the record. See id.; Almanza,

686 S.W.2d at 171.

“But when the complained-of error is the lack of a defensive instruction, the

Almanza framework does not apply[,]” and “unrequested defensive instructions are

still subject to ordinary rules of procedural default.” Williams v. State, 662 S.W.3d

452, 461 (Tex. Crim. App. 2021) (citing Posey v. State, 966 S.W.2d 57, 61 (Tex.

Crim. App. 1998)); see also Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App.

2010) (citations omitted) (collecting cases showing that a lesser-included offense

instruction is a “defensive issue”). A trial court is required to submit instructions

only on “the law applicable to the case[.]” Tex. Code Crim. Proc. Ann. art. 36.14.

Whether to request an instruction on a lesser-included defense is frequently a

3 strategic decision made by the defense. See Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007). Therefore, in the absence of a request from the defense, an

instruction regarding a lesser-included offense is not “the law applicable to the case,”

and article 36.14 imposes no duty on the trial court to provide such an instruction

sua sponte. Tolbert, 306 S.W.3d at 781; Williams, 662 S.W.3d at 461. Article 36.14

provides guidance on preserving appellate review for exceptions or objections in a

jury charge. Williams, 662 S.W.3d at 461. A defendant must “either present his

objections in writing or dictate them to the court reporter[,] [and] [t]he objections

may embody errors claimed to have been committed in the charge, as well as errors

claimed to have been committed by omissions therefrom or in failing to charge upon

issues arising from the facts.” Id. (internal quotations and citations omitted). Charge

error regarding a lesser-included offense will not be considered on appeal absent a

request or objection by the defense. See Chavez v. State, 666 S.W.3d 772, 778 (Tex.

Crim. App. 2023) (citing Tolbert, 306 S.W.3d at 781) (explaining a trial court’s duty

to submit lesser-included offense instruction “upon request”).

Criminally negligent homicide is a lesser-included offense of manslaughter.

Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005). We conclude the trial

court did not err by failing to sua sponte submit a criminally negligent homicide

instruction during the guilt-innocence phase because Brown did not request an

4 instruction or object to its absence. See Posey, 966 S.W.2d at 62. Since no error

exists, we need not analyze for harm. See Tolbert, 306 S.W.3d at 782. We overrule

Brown’s sole issue and affirm the trial court’s judgment.

AFFIRMED.

KENT CHAMBERS Justice

Submitted on October 15, 2024 Opinion Delivered February 19, 2025 Do Not Publish

Before Golemon, C.J., Johnson and Chambers, JJ.