Criminal jury charges contain "law applicable to the case," and often "defensive issues." To obtain review on appeal, complaints involving "law applicable to the case" need not be preserved at trial but "defensive issues" must be preserved. Did the Fifth Court of Appeals wrongly hold that where a defendant states "no objection" to the proposed charge and then complains on appeal about the omission of a lesser-included offense instruction, the Almanza standard applies? (Vi r.r. at 64).
As you can probably tell from the issue presented, the State charged Tolbert with capital murder, but did not request a lesser-included offense instruction on murder (or object to the lack of one). However, on appeal, Tolbert complained that lesser-included offense instructions are "the law applicable to the case" and therefore do not require an objection or a request.
The court of appeals, in an unpublished opinion, reversed because the defendant told a friend that she had just gotten mad and started stabbing the victim. This, coupled with the fact that a gold necklace wasn't taken from the murder scene made murder a valid rational alternative to the offense of capital murder, according to the court of appeals. Tolbert never requested the lesser, but the State did request one. The trial court denied the request. For all these reasons, the court of appeals held that the trial court should've included the instruction and the failure to do so amounted to egregious harm.
Here's a link to the court of appeals case info.
[It seems that in light of Trejo, the answer to the issue will be that lesser-includes are "the law applicable to the case" and that the failure to so instruct will lead to a consideration of harm under Almanza. I mean, if a conviction on an unrequested lesser results in consideration of egregious harm, the failure to instruct seems to follow, right? Right? I hate one-sided doctrines.]
