AFFIRMED as MODIFIED and Opinion Filed December 19, 2018 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-00918-CR AUGUSTINE PINA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F-1751152-Q 

### MEMORANDUM OPINION Before Justices Stoddart, Whitehill, and Boatright Opinion by Justice Whitehill Appellant pled not guilty to po ssession with intent to deliver cocaine and the jury found him guilty of the lesser-included offense of possession of coca ine. The court assessed punishment at thirty years imprisonment. In a single issue, appellant argue s that the trial court erred by submitting a jury instruction on the lesser-included offense because it was not requested by either party and was not the law of the case. In a cross-point, the State requests that we modify the judgmen t to reflect that the court assessed punishment. We conclude that we are bound by precedent from the Texas Court of Criminal Appeals and a prior decision of this cour t holding that a trial court m ay submit a lesser-included offense–2– instruction, even though neither side requested it and even ove r defendant’s objection. We therefore modify the judgment, and as modified, affirm.
I. B ACKGROUND Appellant was apprehended on a south-bound bus with 332 grams of cocaine stuffed in his pants and subsequently charged with possession with the intent to deliver. 1 He pled not guilty to the charge. The case was tried to the jur y and both parties tried the case as an “intent to deliver” case. Detective Jose Cerda, the narcotics officer who apprehended app ellant, testified that on the day in question, the police were looking for people trafficking in nar cotics. Appellant was nervous and fidgety when he spoke to Cerda and Cerda thought he might be re aching for a weapon. After appellant consented to a p at down, Cerda felt an object t hat was not part of appellant’s anatomy, and told appellant he f elt something hard. Appellant denied it. But when the detectives removed appellant from the bus, he admitted that he was carryin g cocaine. A packet containing 332 grams of cocaine was r ecovered on his person. Cerda gave several examples of i ndicators of drug trafficking, and said that appellant met some of these indicators. He admitted, however, that appellant did not fit all of the indicators. Irving police detective Steven Junker provided expert testimony about drug trafficking based on his work on a special task for ce targeting drug cartels. Junke r opined that a person possessing 332 grams of cocaine would be in po ssession with intent to deliver. Appellant did not testify and did not dispute that he possessed the cocaine. His defensive theory at trial was that the State did not prove that he had th e intent to deliver the cocaine. During closing argument, the State argued that the only issue was whet her appellant intended to deliver

1 The total weight, including p ackaging, was 396.5 grams.–3– the drugs. Likewise, defense counsel reminded the jury that no t all the indicators for intent to deliver were present and theref ore appellant was not guilty of the charged offense. Neither party requested that the lesser-included possession off ense be included in the charge, but the trial judge incl uded it anyway. Defense counse l objected that the jury should not be charged on lesser-included possession offense because (i) he was never offered a plea bargain to the charge of possession, (ii) the only charge ever discusse d was possession with intent to deliver, and (iii) all of the State’s witnesses believed he was in possession with intent to deliver. The trial court overruled the objection. The jury sent the court a note during its deliberations, asking “If we are not unanimous on intent to deliver, do we have to find him guilty of possession or if we remain deadlocked, will there be a mistrial. We have one juror who does not believe there wa s intent to deliver and the other 11 do not want to just find possession. Can we please have a defi nition of constructive delivery (that might help).” The judge responded that the court could not ans wer the question and they should consider the instructions they had been given and continue its deliberations. The jury convicted appellant of the lesser-incl uded offense of possession of cocai ne. II. A NALYSIS A

. First Issue: Did the trial cour t abuse its discretion by submi tting an unrequested issue on the lesser-included offense? We review the trial court’s decision to submit a lesser include d offense for an abuse of discretion. Jackson v. State , 160 S.W.3d 568, 575 (Tex. Crim. App. 2005). We apply a twopronged test to determine if the trial court should have given a jury charge on a lesser-included offense. Hall v. State , 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). We first dete rmine if the proof necessary to establish the charged offense includes the l esser offense. Id . If it does, we then review the evidence to determine that if appellant is guilty, h e is guilty only of the lesser offense.
Id .at 536.–4– The second step is a fact question and is based on the evidence presented at trial. Cavazos
v. State , 382 S.W.3d 377, 383 (Tex. Crim. App. 2012). This step requir es us to determine whether “there is some evidence in the record which would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-included o ffense.” Rice v. State , 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). This evidence must show the l esser included offense is a “valid, rational alternative to the charged offense.” Id . Moreover, it “is not enough that the jury may disbelieve crucial evidence pert aining to the greater offense. Rather there must be some evidence directly germane to a lesser-included offense for the factfinde r to consider before an instruction on a lesser-included offense is warranted.” Skinner v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997). The goal of a jury charge is to guide the jury’s deliberations in reaching an accurate verdict based upon the facts and the law. Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). “In a prosecution for an offense with lesser included offenses, the jury may find the defendant not guilty of the greater offense, but guilty of any lesser include d offense.” T EX

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. art. 37.08. Both the prosecution and the defense are “equally entitled” to an instruction on a lesser included offense. Grey v. State , 298 S.W.3d 644, 654 (Tex. Crim. App. 2009) (Cochran, J., concurring). Moreover, the trial court may include an instruct ion on a lesser-included offense, regardless of the parties’ desires, requests, or objections . See id. (citing Humphries v. State , 615 S.W.2d 737, 738 (Tex. Crim. App. 1981) (trial judge may submit lesser-included-offense instruction even over defendant’s objection). Possession of cocaine is a lesser-included offense of possessi on with intent to deliver cocaine. Price v. State , 15 S.W.3d 577, 578 (Tex. App.—Waco 2000, pet. ref’d). Neithe r party disputes this proposition here. I nstead, appellant argues that the trial court’s sua sponte inclusion–5– of the lesser-included offense in struction in the charge was er ror because it was not the “law of the
case.” Appellant argues that nothing in article 36.14 imposes a duty on a trial judge to sua sponte instruct the jury on unrequested defensive issues because an un requested defensive issue is not the “law applicable to the case.” Appellant’s argument is premised is part on a court of criminal appeals opinion concerning the in clusion of a reasonable doubt instruction in the charge which
states: The trial judge has an absolute 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 he has a similar sua sponte duty to instruct the jury on all potential defensive issues, lesse r-included offenses, or eviden tiary issues. These are issues that frequently depend upon trial strategy and tacti cs. Delgado v. State , 235 S.W.3d 244 (Tex. Crim. App. 2007); see also Tolbert v. S tate, 306 S.W.3d 776, 779–82 (Tex. Crim. App. 2010) (trial court is not statutor ily required to sua sponte instruct jury on lesser-included offenses because whether to instruct on these issues frequently depends on trial strategy and tactics). A ccording to appellant, this case was not tried as a possession case, but rather, was a possession with intent to deliver case from begin ning to end. Therefore, the lesserincluded offense of possession was n ot the “law applicable to t he case.” The case law does not provide any in-depth analysis regarding what constitutes the “law applicable to the case” in this context, and Delgado does seem to suggest that the definition will vary from case to case depending on trial strategy and tactics. But the court of criminal appeals and this court have held that a trial court may submit a lesser -included offense instruction, even though defendant did not request the charge and even over defen dant’s objection. See Humphries
v. State , 615 S.W.2d 737, 738 (Tex. Crim. App. [Panel Op.] 1981); Le v. State , No. 05-16-01324, 2018 WL 2001609, at *10 (T ex. App.—Dallas Ap r. 30, 2018, no pet .) (mem. op.). We are bound by these decisions. See State v. Hamlin , 871 S.W.2d 796, 799 (Tex. App.—Houston [14th Dist.]–6– 1984, pet. ref’d) (courts of appeal bound by prior decisions of court of criminal appeals); Johnson
v. State , No. 05-92-01060-CR, 1993 WL 332444 at *4 (Tex. App.—Dallas Au g. 26, 1993, pet. ref’d) (mem. op.) (Morris, concurring) (following prior decisio n from this court as precedent). We thus resolve appellant’s issue against him. B. Cross-point: Should the judgment be reformed? The State requests that we modify the judgement to reflect that the court, rather than the jury, assessed punishment. We ar e authorized to reform a judgm ent to make the record speak the truth when we have the necessary information to do so. Bigley v. State , 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). Here, the record reflects that the court assessed punishment. We therefore sustain the State’s cross-point and modif y the judgment accordingly.
III. C ONCLUSION We resolve appellant’s sole issue against him, sustain the Stat e’s cross-point, and modify the judgment to reflect that th e court assessed punishment. As modified, we affirm.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
AUGUSTINE PINA, Appellant
No. 05-17-00918-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 204th Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1751152-Q. Opinion delivered by Justice Whitehill. Justices Stoddart and Boatright participating. Based on the Court’s opinion of t his date, the judgment of the trial court is MODIFIED to reflect that the court assessed punishment.
As REFORMED , the judgment is AFFIRMED

. Judgment entered December 19, 2018.