Gutierrez v. State
Decision Date | 02 November 1983 |
Docket Number | No. 004-82,004-82 |
Citation | 659 S.W.2d 423 |
Parties | Luis R. GUTIERREZ, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
F.J. Stenberg, San Antonio, for appellant.
Bill M. White, Dist. Atty. and Hipolito Canales, Jr., Elizabeth H. Taylor and Gregory S. Long, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
This is a petition for discretionary review brought by the State from the San Antonio Court of Appeals. Appellant was convicted of theft over $200 and assessed a punishment of five years', probated. The Court of Appeals, 625 S.W.2d 58, reversed the conviction because of unassigned fundamental error in the jury charge. Specifically, they found that fundamental error occurred when the trial court charged the jury in the abstract on the defense of mistake of fact but did not thereafter apply that defense to the facts. Appellant did not object to this omission.
Although not mentioned in the opinion of the Court of Appeals, our review of the record in this case shows that appellant made the following objection to the charge:
The record further shows that the trial court charged the jury with the exact language requested by appellant as to the defense of mistake of fact.
This Court has held many times that if a defendant requests a charge and that charge is submitted as requested the defendant is in no position to complain of fundamental error in the charge. Ayers v. State, 606 S.W.2d 936 (Tex.Cr.App.1980) (on rehearing). A situation very similar to the instant case arose in Cadd v. State, 587 S.W.2d 736 (Tex.Cr.App.1979). We quote from that opinion:
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