defendant requests instruction in Texas

2011Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim.

2010See Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000).

2006Thomas v. State , 723 S.W.2d 696, 707 (Tex. Crim.

1995“The trial court must instruct the jury to disregard evidence obtained illegally if the defendant requests the instruction and raises a fact issue concerning the manner in which the evidence was obtained.” Sen dejo v. State, 841 S.W.2d 856, 859 (Tex.App.—Corpus Christi 1992, no pet.) (citing Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986)).

1999In addressing McQueen’s contentions, however, we relied uponMitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996), and held that the trial court is required to give an instruction on reasonable doubt in the punishment phase only if the defendant requests the instruction, and that the Texas Court of Criminal Appeals would have specifically addressed the matter if it had wanted to impose a duty upon trial courts to include the instruction sua sponte.

1999Relying upon Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App.1996), we held that the trial court is required to give an instruction on reasonable doubt in the punishment phase only if the defendant requests the instruction. 8 We reasoned that the Texas Court of Criminal Appeals would have specifically addressed the matter in the Mitchell case if it had wanted to impose a duty upon trial courts to include the instruction sua sponte.

2021Jury Charge Error “The first requirement for obtaining a jury instruction under Article 38.23, is that the defendant requests an instruction on a specific historical fact or facts.” Madden v. State, 242 S.W.3d 504, 511 (Tex. Crim.

2015“The first requirement for obtaining a jury instruction under Article 38.23, is that the defendant requests an instruction on a specific historical fact or facts.” Madden, 242 S.W.3d at 511 .

2002Balentine v. State, 71 S.W.3d 763, 773-74 (Tex.Crim.App.2002) (citing Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986)); Espericueta v. State, 838 S.W.2d 880, 883 (Tex.App.-Corpus Christi 1992, no pet.).

2002Balentine v. State , 71 S.W.3d 763, 773-74 (Tex. Crim.

2012Flores v. State, 245 S.W.3d 432, 439 (Tex.Crim.App.2008).

2012Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim.

2011See Garza , 126 S.W.3d at 84–85.

2011See Garza, 126 S.W.3d at 84–85.

2024Miller v. State, 605 S.W.3d 877 , 882 (Tex. App.—Houston [1st Dist.] 2020, pet ref’d.); see also Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim.

2023Absent such a request or objection, “the failure to include a no-adverse-inference instruction is not jury charge error.” Duke v. State, 365 S.W.3d 722, 727 (Tex. App.—Texarkana 2012, pet. ref’d); see Michaelwicz, 186 S.W.3d at 624 ; see also Foster v. State, No. 11-21-00175- CR, 2022 WL 5237134 , at *3 (Tex. App.—Eastland Oct. 6, 2022, pet. ref’d) (mem. op., not designated for publication); King v. State, No. 09-18-00196-CR, 2019 WL 5406433 , at *7 (Tex. App.—Beaumont Oct. 23, 2019, no pet.) (mem. op., not designated for publication); Cox v. State, No. 12-15-00228-CR, 2016 WL 4538610 , at *1

2023Absent such a request or objection, “the failure to include a no-adverse-inference instruction is not jury charge error.” Duke v. State, 365 S.W.3d 722, 727 (Tex. App.—Texarkana 2012, pet. ref’d); see Michaelwicz, 186 S.W.3d at 624 ; see also Foster v. State, No. 11-21-00175- CR, 2022 WL 5237134 , at *3 (Tex. App.—Eastland Oct. 6, 2022, pet. ref’d) (mem. op., not designated for publication); King v. State, No. 09-18-00196-CR, 2019 WL 5406433 , at *7 (Tex. App.—Beaumont Oct. 23, 2019, no pet.) (mem. op., not designated for publication); Cox v. State, No. 12-15-00228-CR, 2016 WL 4538610 , at *1

2023And the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege.” (cleaned up))); see Michaelwicz, 186 S.W.3d at 622 ; see also Solis v. State, No. 13-97-462-CR, 2000 WL 34249402 , at *2 (Tex. App.—Corpus Christi– Edinburg May 25, 2000, no pet.) (mem. op., not designated for publication) (“A criminal 4 defendant is entitled to have the jury instructed to disregard his failure to testify, provided the defendant requests such an instruction or objects to its omission.”).

2023See Delgado, 235 S.W.3d at 252, 254 (holding trial court was not required to sua sponte include limiting instruction); Hammock, 46 S.W.3d at 893 (holding trial court did not err by denying defense request to include limiting instruction in jury charge).

2023See Delgado, 235 S.W.3d at 252, 254 (holding trial court was not required to sua sponte include limiting instruction); Hammock, 46 S.W.3d at 893 (holding trial court did not err by denying defense request to include limiting instruction in jury charge).

2022Flores, 573 S.W.3d at 868 ; see Celis, 416 S.W.3d at 430 (“When he raises evidence of a mistaken belief as to the culpable mental state of the offense, a defendant is entitled to an instruction on mistake of fact upon request.”).

2019Wooten, 400 S.W.3d at 605 ; Trevino v. State, 100 S.W.3d 232, 237 (Tex. Crim.

2017If 2 As stated in Corley v. State, 987 S.W.2d 615, 621 (Tex.App.—Austin 1999, no pet.), “Although we no longer presume that a trial court will disregard inadmissible evidence, see Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App. 1992), when a case is tried to a trial court rather than to a jury, the danger that the trier of fact will consider extraneous offense evidence for anything other than the limited purpose for which it is admitted is reduced, and the likelihood that the extraneous evidence will unfairly prejudice the defendant is diminished.” 25 the jury is the fact finder at puni

2017If 2 As stated in Corley v. State, 987 S.W.2d 615, 621 (Tex.App.—Austin 1999, no pet.), “Although we no longer presume that a trial court will disregard inadmissible evidence, see Gipson v. State, 844 S.W.2d 738, 740-41 (Tex.Crim.App. 1992), when a case is tried to a trial court rather than to a jury, the danger that the trier of fact will consider extraneous offense evidence for anything other than the limited purpose for which it is admitted is reduced, and the likelihood that the extraneous evidence will unfairly prejudice the defendant is diminished.” 25 the jury is the fact finder at puni

2017Id.

2015The factual issue is not “Did appellant’s face tremble and his hands shake in nervousness?” It is, “Did Trooper Lily reasonably believe that appellant’s face trembled and his hands shook in nervousness?”). 20 Hill v. California, 401 U.S. 797, 802-05 (1971). 6 No complaint was preserved Assuming there was a disputed issue of material fact fit for a jury instruction, the court of appeals chose the wrong standard of harm.21 “The first requirement for obtaining a jury instruction under Article 38.23, is that the defendant requests an instruction on a specific historical fact or facts.”22 Appellant

2015The Court of Criminal Appeals provided an example of a specific, fact-based Article 38.23 instruction in Oursbourn v. State, 259 S.W.3d 159, 173-74 (Tex.Crim.App. 2008) (“Do you believe that Officer Obie held a gun to the defendant’s head to extract his statement?

2014In McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App. 2006), we explained that when a defendant requests an instruction on a lesser-included offense, he is not admitting that the evidence is sufficient to prove that lesser offense. 21 .

2010See id. ; Rivera v. State , 233 S.W.3d 403, 406 (Tex. App.—Waco 2007, pet. ref’d).

2007The trial court must so instruct “regardless of whether the defendant requests such an instruction or objects to its omission.” Id. at 720 . 5 On appeal, we consider whether the defendant “was harmed by the improper omission of the instruction, not by the admission of evidence of extraneous offenses.” Rodgers, 180 S.W.3d at 724 ; see Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App.2002).

2002Balentine v. State, 71 S.W.3d 763, 773-74 (Tex.Crim.App.2002) (citing Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App.1986)); Espericueta v. State, 838 S.W.2d 880, 883 (Tex.App.-Corpus Christi 1992, no pet.).

2000See Kucha v. State, 686 S.W.2d 154, 155 (Tex.Crim.App.1985) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g)); Coleman v. State, 979 S.W.2d 438, 444 (Tex.App.—Waco 1998, no pet.); Cormier v. State, 955 S.W.2d 161, 163 (Tex.App.—Austin 1997, no pet.). 2 The Court of Criminal Appeals has recently held that article 37.07, section 3(a) requires a trial court to submit a reasonable doubt instruction in the punishment charge regardless of whether the defendant requests such an instruction.