There's Many a Slip 'Twixt the Charge Conference and the Appeal

Last week I posted about two cases that illustrate the importance of timely objections to the court's charge. Careful practioners also need to be sure that written requests for questions or instructions actually make it from the judge's desk into the appellate record.

In Jelinek v. Casas, the defendant requested that the charge include an instruction on unavoidable accident. No. 13-06-00088-CV, 2008 WL 2894889 (Tex. App.—Corpus Christi July 29, 2008, rev’d on other grounds 328 S.W.3d 526 (Tex. 2010). Although the transcript of the charge conference reflected that the defendant submitted the requested instruction in writing, the clerk's record did not include the instruction. The court of appeals therefore found that the defendant had not properly preserved error. Because the Texas Supreme Court rendered judgment based on the defendant's no-evidence arguments, it did not reach the error- preservation issue.

Benham v. Lynch involved similar facts, but the San Antonio Court of Appeals reached a different result because of one key difference. No. 04-09-00606-CV, 2011 WL 381665 (Tex. App.—San Antonio Feb. 2, 2011, no pet.). In Benham, just as in Jelinek, the transciprt reflected that the appellant tendered a written request for an instruction, but the clerk's record did not contain the written request. But in Benham, the parties agreed that a proposed charge attached to the appellant's brief contained the instruction that was requested. Therefore, the court of appeals found that error was preserved.

The real lesson here is that the job of preserving error in the court's charge is not done when the formal charge conference is over. Counsel needs to be sure that written requests have been properly signed by the judge, and that they get from the bench to the clerk's record. I frequently offer to take them immediately after the charge conference from the courtroom to the clerk for filing. If the court refuses that offer, I am sure to follow up with the clerks office while the jury is deliberating to make sure the requests have been filed. I sometimes feel like a pest, but anything less risks waiver.

-- Rich Phillips, Thompson & Knight