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Click here for the full text of this decision FACTS:Authorities charged Eduardo Rivas Delgado with one count of possession with intent to distribute between four and 200 grams of cocaine and a second count of simple possession of between four and 200 grams of cocaine. The evidence at trial showed that undercover narcotics officers were conducting surveillance of the Mi Casa bar, a well-known site for drug sales. One of the officers saw a woman go into the bar, then come out a few minutes later. A man, Carlos Morales, then came out of the bar and called out to her. She came over to him, took “something” from Morales’ hand, and handed him money. Then she left. The officer suspected that he had just seen a drug sale. Officers detained Morales and found cocaine in his pocket. Morales told the officers that he had gotten the cocaine from a man sitting at the bar in Mi Casa. He described that man and his location in the bar. When undercover officers entered Mi Casa, they saw Delgado sitting at the bar. He matched Morales’ description of the man who had supplied him with the cocaine. As the officers approached, Morales saw them. He reached into his pocket, took something out, then boosted himself up and dropped that “something” behind the bar. One officer went behind the bar and discovered two clear plastic baggies containing a total of 0.81 grams of cocaine on top of a trash container. Each baggie had a picture of dice on it. The officers arrested Delgado and took him outside. Delgado consented to a search of his car, which was in the Mi Casa parking lot. The officers found seven individually wrapped plastic baggies in a zippered pouch inside the car. The total weight of the cocaine in those seven baggies was 4.92 grams. Two of those baggies had the same picture of dice on them that the baggies found behind the bar had. The jury acquitted Delgado on the first count, possession with intent to distribute between four and 200 grams of cocaine but convicted him of simple possession of between four and 200 grams of cocaine. The trial judge sentenced him to three years of confinement, suspended the sentence and placed him on five years of community supervision. The state filed a pretrial Notice of Intent to Offer Extraneous Offenses that stated: “Before being arrested for the charged offense, the Defendant, on or about September 10, 2004, did deliver cocaine of an unknown amount to Carlos Morales at the Mi Casa Bar, in Fort Worth, Tarrant County, Texas.” Immediately before trial began, Delgado’s attorney noted that the state had filed a written notice concerning this “extraneous offense” and asked that the prosecutor approach the bench before mentioning it. The prosecutor responded that he filed that notice in an abundance of caution but that he intended to offer this evidence at the very beginning of the trial, because it showed how and why the officers approached Delgado as he sat in the bar. The prosecutor invoked the concept of “same transaction contextual evidence” without explicitly using the term. The trial judge inquired whether both events had occurred in the same time frame. When the prosecutor said that they were just minutes apart, the judge agreed that the evidence was admissible. Delgado’s attorney did not object to any of the evidence concerning Morales, the transaction between Morales and the unknown woman, or Morales’ statement about Delgado supplying the cocaine. He did not ask for a limiting instruction at the time the evidence was offered or at the jury-charge conference. When the trial judge gave copies of his proposed jury charge to both sides and asked if there were any objections, Delgado’s attorney did not request any instruction on extraneous offenses or object to the lack of any such instruction in the jury charge. HOLDING:Affirmed. Texas Code of Criminal Procedure Art. 36.14 requires the trial judge to deliver to the jury “a written charge distinctly setting forth the law applicable to the case.” The trial judge, the CCA stated, has a sua sponte duty to prepare a jury charge that accurately sets out the law applicable to the specific offense charged. But it does not inevitably follow that the judge has a similar sua sponte duty to instruct the jury on all potential defensive issues, lesser-included offenses or evidentiary issues. These are issues that frequently depend upon trial strategy and tactics. For example, in the 1998 case Posey v. State, the CCA stated that “which defensive issues to request are strategic decisions generally left to the lawyer and client.” Because of the strategic nature of the decision, the CCA stated it is appropriate for the trial court to defer to the implied strategic decisions of the parties by refraining from submitting lesser offense instructions without a party’s request. The defense, the CCA stated, may not claim error successfully on appeal due to the omission of a lesser-included offense if the defense refrained from requesting one. Likewise, the defense waives any error in the improper submission of a lesser-included instruction if the defense fails to object to the instruction. The CCA also reiterated its previously holding that if a defendant does not request a limiting instruction under Rule 105 at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. Under Art. 37.07, extraneous-offense evidence is admissible for any relevant purpose during the punishment phase but only if the state can offer proof that would allow a reasonable factfinder to conclude, beyond a reasonable doubt, that the defendant could be held criminally responsible for that act. Thus, the trial judge must sua sponte instruct the jury at the punishment phase concerning that law, including the fact that the state must prove any extraneous offenses beyond a reasonable doubt. In the present case, Delgado argued that the trial judge should have sua sponte given the jury an instruction at the guilt phase concerning the state’s burden of proof for extraneous offenses. Delgado argued that because the trial judge has such a duty at the punishment phase, it naturally follows that the trial judge has that same duty during the guilt phase, even though there is no statutory or legal requirement to give any instructions concerning the use of extraneous offenses absent a timely request. The CCA, however, stated that Delgado was mistaken in that argument. Regardless of whether Delgado’s attorney actually agreed that the evidence of extraneous offenses was admissible for all purposes, the attorney may well have decided, as a matter of trial strategy, not to object to its admission or request a limiting instruction. He may not have wanted to emphasize the evidence that Delgado apparently delivered cocaine to Morales who sold it to the unknown woman. If this was the strategy of Delgado’s attorney, it was an eminently successful one. The jury did not convict Delgado of possession with intent to deliver cocaine but convicted him only of the lesser offense of simple possession of cocaine. Even if a limiting instruction on the use of an extraneous offense would have been appropriate here under Rule 404(b), the court found that the trial judge had no duty to include one in the jury charge for the guilt phase, because Delgado failed to request one at the time the evidence was offered. Because the trial judge had no duty to give any limiting instruction concerning the use of an extraneous offense in the guilt-phase jury charge, the court stated that the judge had no duty to instruct the jury on the burden of proof concerning an extraneous offense. OPINION:Cochran, J., delivered the opinion of the court in which Meyers, Price, Johnson, Keasler, Hervey and Holcomb, JJ., joined. CONCURRENCE:Keller, P.J., filed a concurring opinion. “Crucial to the Court’s analysis is its determination that the evidence at issue constituted”same transaction contextual evidence’ and a party is not entitled to a limiting instruction with respect to that type of evidence. Because the trial judge had no duty to give a limiting instruction for that type of evidence, the Court concludes that he also had no duty to give a burden of proof instruction. That conclusion, however, does not depend upon whether appellant requested the instruction; limiting instructions are never required for same transaction contextual evidence. If entitlement to a burden of proof instruction depends upon entitlement to a limiting instruction, and a party is never entitled to a limiting instruction for same transaction contextual evidence, then, necessarily, a party is never entitled to a burden of proof instruction for same transaction contextual evidence. Consequently, the Court does not really resolve the issue framed at the beginning of its opinion and articulated in appellant’s ground for review: whether an instruction on burden of proof for extraneous offenses admitted at the guilt phase must be included sua sponte or only upon request.” Womack, J., concurred in the result without a written opinion.

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