Vasquez v. State

• Decision Date: 10 April 1996
• Docket Number: No. 0872-95,0872-95
• Citation: 919 S.W.2d 433
• Parties: Frank Christopher VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 433

919 S.W.2d 433

Frank Christopher VASQUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 0872-95.

Court of Criminal Appeals of Texas,

En Banc.

April 10, 1996.

Shawna L. Reagin, Houston, for appellant.

Alan Curry, Assist. Dist. Atty., Houston, Robert A. Huttash, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

A jury convicted appellant of murder and assessed punishment at confinement for sixty years. The Court of Appeals affirmed. Vasquez v. State, 902 S.W.2d 627 (Tex.App.--El Paso 1995). We granted review to determine whether a defendant, in order to preserve the issue for appellate review, must obtain an adverse ruling after requesting a special charge. ¹ We will reverse and remand.

I.

At the conclusion of the evidence and prior to the submission of the court's charge to the jury, appellant requested the trial judge instruct the jury that Bryant Martinez was an accomplice as a matter of law. See, Tex.Code Crim.Proc.Ann. art. 38.14. That request was denied. Appellant then requested the trial judge instruct the jury to determine if Martinez was an accomplice as a matter of fact. Appellant dictated the proposed charge to the court reporter, whereupon the trial judge took the matter under advisement. The trial judge never ruled on the request and the instruction was not included in the jury charge. Vasquez, 902 S.W.2d at 636-37.

On direct appeal, appellant contended the trial judge erred in refusing to submit the requested instruction of the accomplice status of Martinez to the jury. Id., 902 S.W.2d at 636. The Court of Appeals recognized the general rule that in order to preserve a matter for appellate review, the defendant must pursue the matter to its ultimate end by obtaining an adverse ruling or objecting to the trial judge's refusal to rule. Ibid. The Court then held appellant's failure to pursue a ruling on the requested charge amounted to an abandonment of the claim. Ibid. The Court then, assuming the trial judge erred in failing to include the requested instruction, conducted the egregious harm analysis of Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1984) (op'n on reh'g). The Court found no egregious harm and overruled the point of error. Vasquez, 902 S.W.2d at 638.

II.

A.

In addressing whether the error was preserved, the Court of Appeals relied wholly on Tex.Code Crim.Proc.Ann. art. 36.14 which in relevant part provides:

... Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided.... Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defendant to except to the action of the court in over-ruling defendant's exceptions or objections to the charge. ²

The Court of Appeals did not consider Tex.Code Crim.Proc.Ann. art. 36.15 entitled "Requested Special Charges." That statute provides:

Before the court reads his charge to the jury, counsel on both sides shall have a reasonable time to present written instructions and ask that they be given to the jury. The requirement that the instructions be in writing is complied with if the instructions are dictated to the court reporter in the presence of the court and the state's counsel, before the reading of the court's charge to the jury. The court shall give or refuse these charges. The defendant may, by a special requested instruction, call the trial court's attention to error in the charge, as well as omissions therefrom, and no other exception or objection to the court's charge shall be necessary to preserve any error reflected by any special requested instruction which the trial court refuses.

Any special requested charge which is granted shall be incorporated in the main charge and shall be treated as a part thereof, and the jury shall not be advised that it is a special requested charge of either party. The judge shall read to the jury only such special charges as he gives.

When the defendant has leveled objections to the charge or has requested instructions or both, and the court thereafter modifies his charge and rewrites the same and in so doing does not respond to objections or requested charges, or any of them, then the objections or requested charges shall not be deemed to have been waived by the party making or requesting the same, but shall be deemed to continue to have been urged by the party making or requesting the same unless the contrary is shown by the record; no exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge. ³

B.

In order to preserve error relating to the jury charge there must either be an objection or a requested charge. Boles v. State, 598 S.W.2d 274, 278 (Tex.Cr.App.1980). We have interpreted articles 36.14 and 36.15 as dealing with those two distinct situations: an objection to the charge and a requested special instruction, respectively. Frank v. State, 688 S.W.2d 863 (Tex.Cr.App.1985). Under art. 36.14 the defendant is required to object and obtain an adverse ruling to preserve any error. However, under art. 36.15, if the defendant requests a special charge no objection is required...