Alberto Palacio v. State, 580 S.W.3d 447

Alberto Palacio (defendant) was charged with burglary of a habitation with intent to commit assault; indictment also alleged he used/exhibited a deadly weapon (broken glass) and contained two enhancement paragraphs.
Facts: Palacio was on his sister’s property against her wishes, smashed a patio chair through the front-door window, grabbed and twisted the sister through the window causing cuts from glass, threatened to kill her, then fled before police arrived.
Jury found Palacio guilty; he pleaded true to both enhancements; judge made a negative deadly-weapon finding, assessed punishment, and sentenced Palacio to 45 years' imprisonment.
On appeal Palacio raised three issues: (1) trial court allowed the State to define "deadly weapon" during voir dire, (2) trial court denied two motions for mistrial after alleged improper testimony, and (3) trial court refused to charge assault as a lesser-included offense of the charged burglary.
The court reviewed preservation, trial-court discretion on voir dire and mistrial rulings, and the two-prong test for lesser-included offenses under Texas law.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Palacio)	Held
1. Voir dire: State defined "deadly weapon" before jury	Def. of deadly weapon was relevant to State’s case-in-chief and voir dire; limiting instruction was given	Definition discussion prejudiced jury because judge would assess punishment and deadly-weapon finding should be for judge	No reversible error: trial court within discretion; even if error, harmless because panel already heard indictment and court limited scope
2. Mistrial after officer’s testimony about prior assaults	Any mention of prior arrests/assaults was brief and curable by instruction; evidence of guilt was strong	Officer violated in limine order and testified to hearsay that sister said def. kicked in door; mistrial required	No abuse of discretion: defendant failed to preserve first motion; second comment was minimally prejudicial and conviction supported by other evidence
3. Lesser-included offense: assault instruction requested	(State) Assault is not a lesser-included offense of burglary with intent to commit assault under the indictment’s charging language	Assault should have been submitted because facts supported an assault instruction	Denied: under first-prong legal test assault is not established by proof of the same or less than burglary with intent-to-commit-assault; trial court did not err

Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) (trial court has broad discretion over voir dire)
Hill v. State, 913 S.W.2d 582 (Tex. Crim. App. 1995) (better practice to submit deadly-weapon issue during guilt/innocence phase)
Ocon v. State, 284 S.W.3d 880 (Tex. Crim. App. 2009) (mistrial is an extreme remedy; denial reviewed for abuse of discretion)
Meru v. State, 414 S.W.3d 159 (Tex. Crim. App. 2013) (two-prong test for lesser-included offense submission)
Jacob v. State, 892 S.W.2d 905 (Tex. Crim. App. 1995) (aggravated assault is not a lesser-included offense of burglary with intent to commit aggravated assault)