No. 04-08-00297-CR
Delivered and Filed: February 18, 2009. DO NOT PUBLISH.
Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2006-CR-6402, Honorable Pat Priest, Judge Presiding. AFFIRMED.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice. Opinion by: PHYLIS J. SPEEDLIN, Justice.
PHYLIS J. SPEEDLIN, Justice.
This is an appeal from the trial court's refusal to provide a supplemental jury instruction upon request of the jury during deliberations. We affirm the judgment of the trial court.
Background
Mauricio was charged with four counts of sexual assault of a child. The case was tried to a jury. During deliberations, the jurors submitted several questions to the court. One such question asked, "(1) define guilty, not guilty; [and] (2) define beyond a reasonable doubt." The court proposed to answer that "guilty" and "not guilty" are words of "common understanding," and that appellate courts "have ruled that the term beyond a reasonable doubt is a term which jurors must define for themselves." Counsel for Mauricio objected, requesting instead that the jury be told, in response to defining "guilty" and "not guilty," that they had the evidence and should continue to deliberate. Mauricio's attorney further stated that, "everything has been done to give [the jury] the definition" of "reasonable doubt," but that given their question it should be defined again. He opposed the court's proposed response to the reasonable doubt question as "nebulous." Mauricio's attorney summed up his opposition to the court's proposed response to the "reasonable doubt" question by stating, "I think if you are going to do anything at all at this point . . . tell them . . . you have all the evidence before you, continue to deliberate." The trial court agreed with Mauricio and decided that it would respond to the jurors' questions by stating that the jurors had the relevant law and evidence and should continue to deliberate. Mauricio made no objection to the court's response, and the trial court so instructed the jury. After further deliberations, the jury found Mauricio guilty on one count of sexual assault of a child and not guilty on the other three counts. Mauricio was sentenced to 10 years' imprisonment. This appeal followed. Analysis
In one issue on appeal, Mauricio contends that article 36.16 of the Texas Code of Criminal Procedure requires the trial court to provide a definition of "reasonable doubt" upon request of the jury. Tex. Code Crim. Proc. Ann. art. 36.16 (Vernon 2006) (providing in part that after the main charge is read, "no further charge shall be given to the jury unless required by the improper argument of counsel or the request of the jury . . ."). Mauricio further contends that his due process rights under both the Texas and United States Constitutions were violated because the jury failed to understand the burden of proof necessary to convict him. We note first that Mauricio's initial objection to the trial court's proposed response to the jury question made no mention of any obligation to provide the requested "reasonable doubt" definition, or any due process violation. Mauricio simply stated he would like a reasonable doubt definition to be provided. However, he then suggested the very instruction that the court gave, i.e., that the jury had all of the relevant law and evidence and should proceed with their deliberations, thereby waiving any prior objection to the court's instruction. Generally, under Rule 33.1 of the Texas Rules of Appellate Procedure, in order to raise an issue on appeal a specific and timely objection must have been made in the trial court in order to make the court aware of the complaint and provide an opportunity to cure the error. Tex. R. App. P. 33.1(a)(1)(A). Specifically, to preserve a complaint regarding an omitted jury instruction, including an instruction in response to a jury communication, the defendant must make a specific objection at that time in order to apprise the trial court of the nature of his complaint. Tex. Code Crim. Proc. Ann. art. 36.27 (Vernon 2006) (objections to court's response to jury communication are to be made in the same manner as objections to main jury charge); id. art. 36.14 (Vernon 2007) (objections to jury charge must distinctly specify each ground of the objection to preserve any error for appeal); see Pennington v. State, 697 S.W.2d 387, 390 (Tex.Crim.App. 1985); see also McKee v. State, 785 S.W.2d 921, 925-26 (Tex.App.-San Antonio 1990, no pet.) (defendant's general objection to omission of reasonable doubt definition from charge was not specific enough to preserve the issue for appeal). Even if Mauricio's initial objection to the court's proposed response is viewed as requesting a definition of "reasonable doubt," he waived the objection when he suggested the court give a different instruction, which was the one ultimately given by the court. See Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). Further, Mauricio's initial objection did not include an argument that the Texas Code of Criminal Procedure or the state or federal constitution required a reasonable doubt definition, as he contends on appeal. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Accordingly, we hold that Mauricio has failed to preserve this issue for appeal. The trial court's judgment is affirmed.