concurring and dissenting.
In Govan v. State, 682 S.W.2d 567 (Tex. Cr.App.1985) all but the writer of today’s majority opinion agreed that the objection made by the defendant to the jury charge was sufficient to apprise the trial court of the complained of error. Today, Presiding Judge Onion, with no recognizable changes, converts his lone dissent in Go-van, supra, into this Court’s majority opinion and dismisses the holding in Govan as “an aberration.” Since when is an opinion agreed upon by all members of this Court, save one, “an aberration?”
The majority, while acknowledging that the Texas Code of Criminal Procedure no longer requires defense counsel to file written exceptions to the jury charge or specially requested charges, nonetheless, implicitly requires the same before an objection will be deemed sufficient. In distinguishing Jaycon v. State, 651 S.W.2d 803 (Tex. Cr.App.1983) from the instant case, the majority points to the requested charge in Jaycon, supra. The significance in Jaycon, ignored by the majority in this case, is that the verbal objection is virtually identical to the objection in Govan. Thus I construe the majority’s definition of a specific objection to be a verbal objection coupled with a specially requested charge. This, of course, is not the law, as even the majority concedes. See Maj. opinion, p. 945, n. 2.
In my view, an objection which states: “We would object to the court’s charge, Your Honor, on the grounds that it fails to apply specifically [emphasis mine] the law of parties to the facts in this case,” as was voiced in the instant case and in Govan, adequately apprises the trial judge of the complained of error in the charge. Unless we are to assume that trial judges across this State are buffoons, unschooled in the law and incapable of understanding common language, this objection is sufficient. A trial judge, having heard this objection, is (1) referred to the “application paragraph” of the charge, and (2) referred to that portion of the “application paragraph” which applies the law of parties [emphasis mine] to the facts of the case. If we assume that the trial judge listened to the evidence presented at trial, and understands the law of parties, he can clearly read the charge and determine if it is proper.
The same degree of deference that should be accorded the trial judges of this State cannot be accorded lay juries, and therein lies the fatal flaw in the majority opinion, for there was no road map for the jury to follow in this case.
The majority correctly points out that the trial court in the instant case properly charged the jury abstractly on the law of parties pursuant to Y.T.C.A.Penal Code, Secs. 7.01(b) and 7.02(a)(2). Subsequently, *951“in another part of the charge to the jury” [the portion that I irreverently refer to as the “application paragraph”] the court charged the jury, inter alia, that:
“... the defendant, Charles Ray Brown, either acting alone or as a party, [emphasis in majority] did unlawfully ...”
The portion underscored represents the only reference to the “law of parties” in the application paragraph of the charge. Surely, when the appellant objected to the charge because “it fails to apply specifically the law of parties to the facts in this case” [emphasis mine] he was referring to the seven words underscored above. About this, surely rational minds would not differ.
Even were I to concede the majority is correct in holding that appellant’s objection to the charge was somehow flawed, I cannot reconcile nor subscribe to the majority’s ultimate catch all panacea for all jury charge problems, namely: read the charge as a whole. Indeed the majority opinion provides the bench and bar with the road map that the jury in this case sorely needed and did not get, to-wit, McClung, “Jury Charges For Texas Criminal Practice” (Rev.Ed.1985), p. 10:
“... ‘Now, if you find from the evidence beyond a reasonable doubt ..., ... either acting alone or with (or ‘another’) as a party to the offense, as that term is hereinbefore defined, did intentionally ...’”
It is readily apparent that the phrase “as that term is hereinbefore defined” is absent from the “application paragraph” of the charge in the instant case, rendering the “read the charge as a whole” cure a hollow incantation.
Having left intact that portion of Govan, supra, which the majority found benign, it concluded that even if appellant’s objection was sufficient, any error in charging on the law of parties was harmless because the evidence clearly supported appellant’s guilt as a primary actor. With this part of the Govan post mortem, I agree. But I vehemently dissent to the finding of a malignancy in a proposition of law pronounced overwhelmingly healthy twelve months ago.
TOM G. DAVIS, McCORMICK and MILLER, JJ., join this opinion.