Henry v. State

OPINION

BURGESS, Justice.

A jury found appellant guilty of burglary of a habitation. They further found that he had been previously convicted of a felony, and assessed his punishment at 23 years in the Texas Department of Corrections. In addition, they imposed a fine of $5,000. Appellant brings forth a single point of error.

Prior to the charge on punishment being prepared, the trial judge indicated that the language of TEX.CODE CRIM.PROC. ANN. art. S7.07, sec. 4(c) (Vernon Supp. 1987) would be included in the charge. Appellant specifically objected to the inclusion of that language. The trial court sustained the objection and submitted the charge to the jury without the provision. Appellant now claims that the failure to include the provision is fundamental error. Appellant must now make the claim of fundamental error because he did not object to the court’s failure to include the language. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). In short, he must show “egregious harm.” Almanza, supra. It has long been the law in this state that a defendant cannot complain of error where he requested the charge as given to the jury. Gutierrez v. State, 659 S.W.2d 423 (Tex.Crim.App.1983). The rule is no different when a defendant objects to the charge and receives the relief sought. This cannot lead to egregious harm. The point of error is overruled. The judgment is affirmed.

AFFIRMED.