Henry v. State

BROOKSHIRE, Justice,

concurring.

Appellant’s attorney specifically objected to including any part of TEX.CODE CRIM. PROC.ANN. art. 37.07, sec. 4(c) (Vernon Supp.1987), in the Court’s Charge, at the punishment stage. Then the District Judge said, in effect, that the trial court was going to observe the Defendant’s [Appellant’s] objection and that he would not submit any part of the instructions as set out in art. 37.07, sec. 4(c). Next, the court below prepared a charge excluding those materials and instructions objected to by the Defendant [Appellant] and resubmitted the punishment charge to the Appellant’s attorney. The trial judge asked:

“Does the defendant have any objection to the Charge as presented?
“MR. PRICE: No, Your Honor.”

TEX.CODE CRIM.PROC.ANN. art. 36.-19 (Vernon 1981) requires that:

“All objections to the charge and to the refusal of special charges shall be made at the time of the trial.”

Surprisingly, the only point of error that the Appellant presents on appeal is that the trial court erred in failing to include in the charge the provisions set out in art. 37.07, sec. 4(c). Only fundamental error is urged and argued to us. This Appellant failed to make any objection whatsoever to the court’s final charge. We decide nothing is presented for appellate review. DeRusse v. State, 579 S.W.2d 224 (Tex.Crim.App.1979). Additionally, there is nothing presented for appellate review where the Defendant [Appellant] below obtained all the relief that he had requested. Reese v. State, 531 S.W.2d 638 (Tex.Crim.App.1976).

*445I would hold that TEX. CODE CRIM. PROC.ANN, art. 36.19 (Vernon 1981) disallows any successful, favorable appellate review of the Appellant’s sole point of error. No fundamental error is presented. Indeed, if there was any error — and I think there is none — it would be a species of invited error. Appellant cannot complain, on appeal, of that which he invites.

I do not think that it is necessary that we reach the question of “egregious harm”. Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984).

I concur in the affirmance.