Posey v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge,

delivered the opinion of the Court

joined by MANSFIELD, KELLER, PRICE and HOLLAND, Judges.

A jury convicted appellant of unauthorized use of a motor vehicle. See V.T.C.A., Penal Code, Section 31.07. After finding the indictment’s two enhancement paragraphs “true,” the trial court sentenced appellant to thirty-five (35) years’ confinement.

The State’s evidence shows Wanda Thomas owned a black 1988 Jaguar that usually was driven by her friend, “Chuck” Williams. On November 4, 1993, Williams parked the Jaguar at Hobby Airport in Houston from where Williams caught a flight to Corpus Christi. When Williams left the Jaguar at the airport, the car was locked, undamaged and in good condition with its alarm system activated. A spare key to the Jaguar was in the console.

On November 7, 1993, Deputy Ervin saw appellant driving the Jaguar. Ervin stopped appellant because the registration sticker on the Jaguar was expired. A key was in the Jaguar’s ignition. Appellant could not produce a driver’s license or proof of insurance. After Ervin checked the Jaguar’s registration and found out it belonged to Thomas, appellant told Ervin that someone he had just met named “Chuck,” whose last name and address appellant did not know, gave appellant permission to drive the Jaguar. Inside the glove compartment of the Jaguar were some repair bills with the name “Chuck” written on them. Ervin noticed the inside door panel on the driver’s side of the Jaguar was pulled back and the wires to its alarm system were cut. Ervin arrested appellant. Thomas and Williams testified they never gave appellant permission to drive the Jaguar.

Appellant did not testify at trial. However, he presented the testimony of two witnesses — Larry Harris and Kenneth Posey, who was appellant’s cousin. These witnesses testified they saw a man named Charles Yates give appellant the keys to the Jaguar *59on November 7, 1993.1 Neither of these witnesses claimed “Chuck” Williams and Charles Yates were the same person. Both of appellant’s witnesses were convicted felons. As far as we can tell from the record, Charles Yates was never located, and no one named Charles Yates testified at appellant’s trial that he gave appellant permission to drive the Jaguar.

In addition, on cross-examination, Harris testified Charles Yates lived with him for about a week in early November 1993 even though he had met Yates only about a week or two prior to this time. Harris also testified he saw Yates give appellant the keys to the Jaguar about twenty minutes after Harris introduced appellant to Yates. Harris also testified he did not know what Yates did for a living and he did not know where Yates was at the time of trial.

On cross-examination, appellant’s other witness, his cousin Posey, testified he did not personally know Charles Yates; he knew “of him.” Posey also testified he was in the Jaguar with appellant when Ervin stopped it, and he observed no damage to the Jaguar including anything that could be interpreted as damage consistent with an auto theft which was contrary to what Ervin observed after he stopped the Jaguar. Posey also testified the thought crossed his mind that it was a “bit unusual” for appellant to be driving a Jaguar.

“Q. You didn’t think it was the least bit unusual that [appellant] would be driving a 1988 black Jaguar?”
“A. Well, it ran across my mind.”

During closing arguments, appellant argued the jury should acquit him because appellant had permission to drive the car from Charles Yates whom appellant thought had rightful possession of the car. The prosecutor argued, among other things, that appellant’s witnesses and the story they told were unworthy of belief.

“We talked about on voir dire when is the last time you loaned your car to somebody you didn’t know their last name? When is the last time you borrowed a car from somebody you didn’t know their last name?
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“[Appellant] is driving a car, a black ’88 Jag from a guy he just met, supposedly, with the door bent back and the alarm cut, from a friend he didn’t know the last name of and had only known for a couple of days.”

The application paragraph of the jury charge instructed the jury to convict appellant if it found appellant operated the Jaguar without the effective consent of Thomas. The jury convicted appellant.

On direct appeal to the Court of Appeals, appellant complained for the first time that the trial court reversibly erred by not sua sponte instructing the jury on the defense of mistake of fact. See V.T.C.A., Penal Code, Section 8.02(a).2 It is undisputed that at trial appellant did not request this instruction and he did not object to the absence of this instruction in the jury charge.

Applying this Court’s opinion in Almanza v. State, 686 S.W.2d 167,160-74 (Tex.Cr.App. 1984) (op. on reh’g), the Court of Appeals reversed appellant’s conviction and remanded the cause for a new trial upon determining appellant was “egregiously harmed” by the absence of a mistake of fact instruction in the jury charge. See Posey v. State, 916 S.W.2d 88 (Tex.App.-Houston [1st Disk] 1996) (not yet reported). Citing this Court’s opinion in Yasquez v. State, 830 S.W.2d 948, 951 (Tex. Cr.App.1992), the Court of Appeals concluded appellant was “egregiously harmed” be*60cause the jury was precluded from considering appellant’s only defense.3

We granted the State’s petition for discretionary review to decide whether Almanza applies to the omission in the jury charge of defensive issues that have not been properly preserved by a defendant’s request or objection. We hold Almanza does not apply in these circumstances.

The State argues Almanza applies only to an “error” in the jury charge and it cannot be said a trial court errs in failing to charge the jury on a defensive issue that was never requested or otherwise brought to the trial court’s attention. The State claims any other holding would distort “the entire nature of our adversarial system” by interfering with strategic decisions that should be left to the discretion of the defendant and his lawyer. The State also claims any other holding would effectively impose a duty on trial courts to sua sponte instruct the jury on defensive issues.4

In Almanza^ this Court set out the “basic framework for analysis” on appeal to preserved and unpreserved “errors” in the jury charge. See Almanza, 686 S.W.2d at 171-74. This framework is not a court-made rule; it is based on this Court’s interpretation of Article 36.19, V.A.C.C.P., and its statutory predecessors which this Court construed as separately containing the “harm” standards for both “fundamental error and ordinary reversible error” in jury charges. See Al-manza, 686 S.W.2d at 171. Almanza also disapproved of this Court’s cases which suggested jury charge error requires an “automatic” reversal. See Almanza, 686 S.W.2d at 172-74; but see Reyes v. State, 938 S.W.2d 718 (Tex.Cr.App.1996) (trial court’s failure to submit “reasonable doubt” jury instruction requires “automatic” reversal).

Neither “harm” standard set out in Article 36.19 as construed by Almanza applies unless an appellate court first finds “error” in the jury charge. See Almanza, 686 S.W.2d at 174 (finding error in the court’s charge to the jury begins — not ends — the inquiry). Neither Article 36.19 nor Almanza have any application in determining whether there is “error” in the jury charge. This is because neither “harm” standard to jury charge “error” set out in Article 36.19 as construed by Almanza applies unless the record first shows that any requirement of various statutory provisions referenced in Article 36.19 “has been disregarded.” 5 This defines the “error” for purposes of Almanza. The primary statutory provision referenced in Article 36.19 that could apply or be “disregarded” in cases like this is Article 36.14, V.A.C.C.P.

Therefore, the question boils down to whether Article 36.14 imposes a duty on trial *61courts to sua sponte instruct the jury on defensive issues,6 or whether Article 36.14 permits a defendant to complain for the first time on appeal about the omission of unrequested defensive issues in the charge. In other words, pursuant to the “plain” language of Article 36.19, the issue in this ease is whether “any requirement” of Article 36.14 “has been disregarded.” This presents a question of legislative intent.

Consistent with general rules of procedural default,7 the “plain” language of Article 36.14 mandates that a defendant must object in writing to claimed “errors” of commission and omission in the charge. The “plain” language of Article 36.14 further provides that this “is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof ” (Emphasis Supplied). The “plain” language of Article 36.14 makes clear that a defendant must object to the charge before he may be heard to complain on appeal about “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.”8

Therefore, under this portion of Article 36.14, there generally is no “error” in the charge unless the defendant objects in writing to claimed “errors” of commission and omission in the charge.9 When, under general rules of procedural default, an appellate court holds a defendant has procedurally defaulted a particular claim by not timely raising it in the trial court, the appellate court does not concede that “error” has occurred. In these situations, all the appellate court is saying is that it will not address the merits of a claim raised for the first time on appeal. This is important because Almanza does not apply unless the appellate court first finds “error” in the jury charge. See Almanza, 686 S.W.2d at 174 (analytical framework applies to jury charge “error”).

*62Article 36.14 also mandates that a trial court submit a charge setting forth the law “applicable to the case.” The question in this case is whether this imposes a duty on trial courts to sua sponte instruct the jury on unrequested defensive issues.10 We hold Article 36.14 imposes no such duty.

A holding that Article 36.14 imposes such a duty on trial courts would render the portion of Article 36.14 just discussed as well as its clear legislative intent meaningless. Our holding that Article 36.14 imposes no duty on trial courts to sua sponte instruct the jury on unrequested defensive issues also is consistent with general rules of procedural default and the policies they promote. See Tex. R.App.Proc. 33.1(a); Marin v. State, 851 S.W.2d 275, 278 (Tex.Cr.App.1993) (rights of litigants in our system of adjudication are usually forfeited by a failure to exercise them); Lankston v. State, 827 S.W.2d 907, 909 (Tex.Cr.App.1992) (rules of procedural default require a defendant to object “at a time when the trial court is in a proper position to do something about it”); see also Norris v. State, 902 S.W.2d 428, 446 (Tex.Cr. App.), cert. denied, 516 U.S. 890, 116 S.Ct. 237,133 L.Ed.2d 165 (1995) (one reason rules of procedural default require a timely objection is to provide the trial court or the other party an opportunity to remove the basis of the objection).11

Therefore, consistent with general rules of procedural default as well as the policies expressed in other portions of the statutory provisions referenced in Article 36.19, we decide a defensive issue is not “applicable to the case” for purposes of Article 36.14 unless the defendant timely requests the issue or objects to the omission of the issue in the jury charge.12 Moreover, with one exception that we discuss in the next paragraph, this Court has never held a trial court commits “error” by failing to sua sponte instruct the jury on a defensive issue.

In Williams v. State, this Court effectively held the trial court erred in not sua sponte instructing the jury on the defensive issue of “release in a safe place” at the punishment phase of an aggravated kidnapping prosecution. See Williams v. State, 851 S.W.2d 282, 284, 287 (Tex.Cr.App.1993) (trial court’s failure to instruct the jury on the defensive issue of “release in a safe place” was “error” even though the defendant did not object to the absence of this instruction in the jury charge). However, the main issue this Court addressed in Williams was which party bore the burden of persuasion on the defensive issue once the evidence raised the issue. See Williams, 851 S.W.2d at 285-87.

This Court more or less assumed in Williams without any discussion that the trial court had a duty to instruct the jury on the defensive issue if the evidence raised it even though the defendant failed to request it or object to its absence in the jury charge. However, the questions of whether evidence raises a particular defensive issue and of when a trial court has a duty to instruct the jury on a particular defensive issue are different questions. Though the evidence might raise a defensive issue, it does not necessarily follow that a trial court has a duty to sua sponte instruct the jury on that issue when the defendant does not request such an instruction.

*63Moreover, Williams was based on prior V.T.C.A., Penal Code, Section 20.04(b), which provides that aggravated kidnapping is a first degree felony unless the actor voluntarily releases the victim alive and in a safe place in which event the offense is a second degree felony. See Acts 1973, 63rd Leg., p. 883, ch. 399, Section 1, eff. January 1,1974. Apparently in response to this Court’s decision in Williams, the Legislature amended Section 20.04. See Acts 1995, 74th leg., ch. 318, Section 4, eff. September 1,1995.

V.T.C.A., Penal Code, Section 20.04(d), now expressly requires the defendant to raise the issue of whether he voluntarily released the victim in a safe place and he has to prove “the issue in the affirmative by a preponderance of the evidence” at the punishment phase of an aggravated kidnapping prosecution. Under current Section 20.04(d), for a defendant to be entitled to a jury instruction on the defensive issue of “release in a safe place,” it is not sufficient that the evidence raises the issue as this Court apparently assumed in Williams. The defendant also will have to object to the absence of an instruction on the issue in the court’s charge or otherwise bring the matter to the trial court’s attention if he wants to complain on appeal about the absence of the instruction on the issue in the court’s charge. If Williams was decided today, this Court would have to hold the trial court had no duty to instruct the jury on the defensive issue of “release in a safe place” because the defendant failed to raise the issue by objecting to the absence of an instruction on the issue in the court’s charge. See Section 20.04(d).

We decline to follow an opinion— Williams — that effectively has been overruled by the Legislature. The Legislature’s amending Section 20.04(b) in response to this Court’s opinion in Williams is further evidence that the Legislature does not intend to impose a duty on trial courts to sua sponte instruct the jury on defensive issues.

Finally, our holding in this ease is consistent with many cases from this Court deeid-mg that which defensive issues to request are strategic decisions generally left to the lawyer and the client. See, e.g., Vasquez, 830 S.W.2d at 950 fn. 3 (though competent defense counsel recognizes a particular defense might be available to a particular offense, he could also decide for strategic reasons not to request the defense). For example, in a case like this, the lawyer and the client could decide not to request the defensive issue and risk losing their credibility with the jury because the evidence raising the defense is so unworthy of belief.13 Decisions as to the defensive theory of a case should be left to the defendant and his lawyer. This also is consistent with Article 36.14’s mandate permitting a defendant to request various charges at the risk of procedural default by his silence.

Moreover, a contrary holding in this case could impose on defendants unwanted defensive issues in the charge. We ultimately would be confronted with a case where a trial court gave a jury instruction on a defensive issue raised by the evidence with a defendant complaining about it on appeal. A contrary holding in this case also would be inconsistent with other legislative enactments intended to discourage parties from sandbagging or lying behind the log “to belatedly raise issues of error.” See Janecka v. State, 823 S.W.2d 232, 244 (Tex.Cr.App.1990) (op. on reh’g). In other words, a contrary holding might encourage a defendant to retry the case on appeal under a new defensive theory effectively giving him two bites at the apple.

It has been suggested that our holding is inconsistent with the “special rule” of Article 36.19 and Almanza because Almanza specifically refers to errors of commission and omission and gives them equal treatment. However, this begs the question and fails to take into account the “plain” language of Article 36.14 which clearly mandates that a defendant must object to claimed “errors” of commission and omission in the charge before he may be heard to complain on appeal. Moreover, when Almanza speaks of “erroneous” omissions of issues in the court’s charge, *64it speaks of omissions of issues upon which a trial court has a duty to instruct without a request from either party or issues that have been timely brought to the trial court’s attention. See, e.g., Almanza, 686 S.W.2d at 172 (e.g., error involving the omission of an entire element from the application paragraph of the court’s charge); see also Geesa v. State, 820 S.W.2d 154, 161-62 (Tex.Cr.App. 1991) (definitional instruction on “reasonable doubt” shall be submitted to jury in all criminal cases even in absence of objection or request by state or defendant). Our decision in this case in no way undercuts or limits Almanza’s analytical framework in cases to which Almanza applies.14

We reverse the judgment of the Court of Appeals and affirm the trial court’s judgment.

. For example, appellant’s cousin testified:

"Q. Okay. Now, when you saw Mr. Yates on the 7th of November, 1993, what was he doing? What did you see him do?"

“A. I saw him — after him and [appellant] conversating, whatever they conversate about, I see him hand back [appellant] the keys and we left.”

"Q. You and who left?”

"A. Me and [appellant], we left.”

. This Court has held in cases like this that a mistake of fact defense is raised when a defendant presents evidence his use of the car was with the permission of an acquaintance who apparently was authorized to consent to the use of the vehicle. See McQueen v. State, 781 S.W.2d 600, 602-03 (Tex.Cr.App.1989).

.This merely restates the alleged "error” that occurred in this case. Assuming the applicability of Almanza, both “harm” standards set out in Almanza require for jury charge "error” that the actual degree of harm "must be assayed in light of the entire jury charge, the state of the evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171. An appellate court should consider the quality and weight of the evidence in cases to which the Almanza “harm” standards apply to jury charge "error.” In Almanza, this Court stated:

" ‘But in determining whether the error is material ... we are to look to the whole record bearing upon the subject. What was the nature of the testimony supporting the verdict? Was it cogent and overwhelming? What was the character of the testimony presenting the phase or theory of the case omitted to be noticed in the charge, and upon which omission error is assigned? Was it at all reasonable? Did it present a theory which a reasonable mind could entertain, or was it supported by such testimony as was remotely calculated to destroy the State's case, as well as the charge as a whole? Was the phase of the case simply an addition to the case as made by the State and consistent therewith, or was it in direct conflict with the State’s theory? These are all important matters to be considered in passing upon the [degree of harm] in the omission or error_(Footnote Omitted). Al-manza, 686 S.W.2d at 173-74.

. Appellant's brief does not address the applicability of Almanza. Appellant assumes the applicability of Almanza, and argues the Court of Appeals did not err to find “egregious harm.”

. In other words, an appellate court will have to find a violation of one of the statutory provisions referenced in Article 36.19 before any of the "harm” standards to jury charge "error” set out in Article 36.19 as construed by Almanza even applies.

. If Article 36.14 imposes such a duty, then a trial court "errs” in failing to sua sponte instruct the jury on a defensive issue that is raised by the evidence.

. See Tex.R.App.Proc. 33.1(a).

. Other statutory provisions referenced in Article 36.19are consistent with this interpretation of Article 36.14. For example, Article 36.15, V.A.C.C.P., provides that when a defendant has made objections to the charge or has requested instructions or both and the trial court does not respond to these objections or requests, the "objections or requested charges shall not be deemed to have been waived by the party making or requesting the same.” (Emphasis Supplied). This is further evidence that the Legislature does not intend to allow a defendant to complain for the first time on appeal about the omission of defensive issues in the jury charge. On the contrary, the Legislature has clearly staled in several of the statutory provisions referenced in Article 36.19that a defendant must object to the charge before he may be heard to complain on appeal. See Article 36.14; Article 36.15; Article 36.16, V.A.C.C.P., (after a defendant has objected to the charge or has requested special instructions in the charge, "no further exception or objection shall be required of the defendant in order to preserve ” these objections or exceptions). (Emphasis Supplied).

. It has been suggested that our decision in this case effectively overrules Almanza. We disagree. Our decision in this case in no way undercuts or limits Almanza’s analytical framework in cases to which Almanza, applies. For example, Article 36.14 clearly mandates that a defendant must object to claimed "errors" of commission and omission in the charge before he may be heard to complain on appeal. When Almanza speaks of “errors” of commission and omission in the court’s charge, it speaks of issues upon which a trial court has a duty to instruct without a request or objection from either party ( in which case the failure to instruct would constitute "error” with Almanza’s "some” harm standard or "egregious” harm standard applying depending on whether the defendant objected to the claimed “error” of commission or omission) or of issues that have been timely brought to the trial court’s attention (in which case Almanza’s "some” harm standard would apply since the defendant brought the claimed "error” of commission or omission to the trial court’s attention).

Our decision in this case gives effect to Article 36.19as interpreted by Almanza and to the other statutory provisions referenced in Article 36.19. A contrary holding in this case would render the clear legislative intent of Article 36.14 meaningless by permitting a defendant to complain for the first time on appeal about the omission of a defensive issue in the court's charge. Article 36.14 clearly contemplates that a defendant must bring any claimed "error” of commission or omission in the jury charge to the trial court's attention before he may be heard to complain on appeal. See Article 36.14 ("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 other words, is an unrequested defensive issue that is raised by the evidence "applicable to the case?”

. For example, in this case had appellant timely objected to the absence of the mistake of fact instruction in the jury charge, the trial court would have had an opportunity to remove the basis of appellant’s objection by submitting the issue to the jury thus making it unnecessary for the Court of Appeals and now this Court to expend all these resources in deciding whether appellant may now complain for the first time on appeal about the absence of the mistake of fact defense in the charge. Appellant could have saved everyone a lot of time and trouble by simply making a timely objection in the trial court. Under these circumstances, he should not be heard to complain about the absence of the mistake of fact instruction in the jury charge.

.Of course, Almanza should be applicable to the omission in the jury charge of a defensive issue which a defendant timely requests and which is raised by the evidence. See Almanza, 686 S.W.2d at 171-74. In these circumstances, the defensive issue is "applicable to the case” primarily because the defendant timely requests the issue when the trial court is in a proper position to do something about it. See Lankston, 827 S.W.2d at 909.

. Even appellant’s own cousin testified he thought it a "bit unusual” that appellant would be drivmg a 1988 black Jaguar.

. It also is worth mentioning that the author of Almanza — the Honorable Judge Clinton — pointed out in another case that the statutory "precursors” to Article 36.19 had been interpreted as not requiring a trial court “to give instructions not asked for by” a party and a trial court’s failure to do so is not "error.” See Walker v. State, 823 S.W.2d 247, 249-50 fh. 2 (Tex.Cr.App.1991) (Clinton, J., concurring), cert, denied, 503 U.S. 939, 112 S.Ct. 1481, 117 L.Ed.2d 624 (1992) (court is not bound in any case to give instructions not asked for by the party and the mere "omission” to give instructions is not "error”).

Moreover, the author of this opinion was on the Court when Almanza was decided and the author’s recollection is that Almanza primarily was intended to do away with the "automatic reversal” rule for jury charge "error.” It was not intended to impose a duty on trial courts to sua sponte instruct the juty on defensive issues.