Berghahn v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of murder. The Court of Appeals, 660 S.W.2d 877, found fundamental error in the charge and reversed the conviction. We granted the State’s petition for review to consider the issue.

The verdict form attached to the charge included alternatives for the jury to find appellant guilty of murder, voluntary manslaughter, involuntary manslaughter, criminally negligent homicide, reckless injury to a child, and criminally negligent injury to a child. It did not include a form for finding appellant not guilty. In a hearing conducted by the trial court after the trial, the court reporter testified that after preparing the original charge and verdict form, which did include a form for finding appellant not guilty, the alternatives for injury to a child were added and in the process of correcting the page of form verdicts, the not guilty form was omitted. She also testified that the changes were made under the direction of defense counsel. The Court of Appeals held omission of the not guilty form was fundamental error, there being no objection to the omission.

In Bolden v. State, 489 S.W.2d 300, it was held that alleged error in the verdict form was not preserved for review where there was no objection at trial. The form used in that case recited:

“(If you find the defendant guilty, use the verdict form shown immediately below:)
We, the jury, find the defendant guilty of robbery as charged in the indictment.
Foreman.
“(If you find the defendant not guilty, use the verdict form shown immediately below:)
Foreman.”

In this case, unlike Bolden, there was no mention of a not guilty verdict on the sheet of verdict forms. Like Bolden, however, there was no trial objection.

In Cadd v. State, 587 S.W.2d 736, it was stated “if a defendant requests a charge and that charge is given just as requested, he is in no position to complain of any error therein, [citations omitted].” Although the issue in that case involved the substantive charge instead of the verdict forms, *699the rule should be equally applicable to both.

In this case appellant’s counsel supervised the alteration of the verdict form page by the court reporter and made no objection to omission of a not guilty form. Under the combined authorities of Bolden and Cadd we hold no reversible error is shown.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration of appellant’s other grounds of error.

MILLER, J., concurs in the result.