Derrick Leonard v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NOS. 02-10-00277-CR
02-10-00278-CR
DERRICK LEONARD APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
Derrick Leonard pled guilty to a jury in two different cause numbers to theft
and burglary of a motor vehicle. In a single issue, appellant contends the trial
court erred by refusing to include his requested jury instruction in the charge in
the theft case. We affirm.
1
See Tex. R. App. P. 47.4.
Appellant was intoxicated when he committed the theft offense.2 He
requested an instruction in the jury charge on punishment stating that evidence
of temporary insanity caused by intoxication “should be considered in mitigation
of the penalty, if any, attached to the offense.” [Emphasis added.] The trial court
instructed the jury instead that evidence of temporary insanity caused by
intoxication “may, but is not required to be, considered in mitigation of the
penalty, if any, attached to the offense.” [Emphasis added.]
Section 8.04 of the penal code provides that although voluntary
intoxication is not a defense to the commission of a crime, “[e]vidence of
temporary insanity caused by intoxication may be introduced by the actor in
mitigation of the penalty attached to the offense for which he is being tried.” Tex.
Penal Code Ann. § 8.04(a), (b) (Vernon 2003). Appellant contends that the trial
court’s instruction fails because it does not direct the jury to actually consider any
evidence of temporary insanity caused by intoxication. But “the law does not
require a juror to consider any particular piece of evidence as mitigating; all the
law requires is that a defendant be allowed to present relevant mitigating
evidence and that the jury be provided a vehicle to give mitigating effect to that
evidence if the jury finds it to be mitigating.” Raby v. State, 970 S.W.2d 1, 3
(Tex. Crim. App.), cert. denied, 525 U.S. 1003 (1998). Accordingly, the trial
2
Appellant does not challenge his burglary conviction.
2
court’s instruction was proper.3 See Ramos v. State, 991 S.W.2d 430, 434–35
(Tex. App.––Houston [1st Dist.] 1999, pet. ref’d). We overrule appellant’s sole
issue and affirm the trial court’s judgments.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 10, 2011
3
Moreover, appellant’s requested charge, which tracks the pattern jury
charge, is more appropriate to a case in which the defendant has pled not guilty,
and the jury must be instructed that the temporary-insanity-caused-by-
intoxication is not to be considered at guilt-innocence, but rather, “should be
considered” instead as relevant to punishment. Here, appellant pled guilty to the
jury, so the trial court’s departure from the pattern jury charge, while nevertheless
a proper statement of the law, was also appropriately tailored to the situation at
hand.
3