Cory Don Crosby v. State ( 2018 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-17-00179-CR
CORY DON CROSBY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 52nd District Court
Coryell County, Texas
Trial Court No. 16-23730
Before Morriss, C.J., Moseley and Burgess, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
A Coryell County jury found Cory Don Crosby guilty of injury to a child.1 After Crosby
pled true to the State’s enhancement allegation, the trial court sentenced him to twenty years’
imprisonment and ordered him to pay a $5,000.00 fine. In his sole point of error on appeal, Crosby
argues that the trial court erred by failing to sua sponte instruct the jury on lesser-included offenses
of criminally negligent or reckless injury to a child.
In Tolbert v. State, the Texas Court of Criminal Appeals explained that while trial courts
are obligated to prepare a jury charge that accurately states the law applicable to the case, a “trial
court ha[s] no duty to sua sponte instruct the jury on . . . lesser-included offense[s],” because they
are “not ‘applicable to the case’ absent a request by the defense for its inclusion in the jury charge.”
Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010). In explaining why there is no duty
to sua sponte include lesser-included offenses in the jury charge, the Texas Court of Criminal
Appeals wrote that “lesser-included instructions are like defensive issues,” which “frequently
depend on trial strategy and tactics,” and counsel can engage in the valid trial strategy of the “all
or nothing” approach. Id. at 780, 781 (quoting Delgado v. State, 235 S.W.3d 244, 249–50 (Tex.
Crim. App. 2007)).
Here, it is undisputed that Crosby’s counsel failed to request the inclusion of any lesser-
included offenses in the jury charge. “It is clear that the defense may not claim error successfully
on appeal due to the omission of a lesser included offense if the defense refrained from requesting
1
Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
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one.” Tolbert, 306 S.W.3d at 781 (quoting Delgado, 235 S.W.3d at 250). Because the trial court
has no duty to instruct the jury on lesser-included offenses in the absence of a request by the
defense, we overrule Crosby’s sole point of error.
We affirm the trial court’s judgment.
Bailey C. Moseley
Justice
Date Submitted: March 22, 2018
Date Decided: March 23, 2018
Do Not Publish
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