Ex Parte Ramirez

919 S.W.2d 435

Tex. Crim. App.

1996

Check Treatment

Ex parte Juan Manuel RAMIREZ, Applicant.

No. 0163-95.

Court of Criminal Appeals of Texas, En Banc.

April 10, 1996.

918 S.W.2d 435

same, but shall be deemed to continue to have been urged by the party making or requesting the same unless the contrary is shown by the record; no exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge.³

B.

In order to preserve error relating to the jury charge there must either be an objection or a requested charge.

Boles v. State, 598 S.W.2d 274, 278 (Tex.Cr.App.1980). We have interpreted articles 36.14 and 36.15 as dealing with those two distinct situations: an objection to the charge and a requested special instruction, respectively. . Under art. 36.14 the defendant is required to object and obtain an adverse ruling to preserve any error. However, under art. 36.15, if the defendant requests a special charge no objection is required to preserve error. . All that is necessary under art. 36.15 is that the requested charge be in writing or dictated to the court reporter.⁴

James v. State, 772 S.W.2d 84, 112 (Tex.Cr.App.1989) (Op‘n on reh‘g), the defendant requested a special instruction defining “deliberately” at the punishment phase of his capital trial. The trial judge did not instruct the jury as requested. On appeal the State argued that the error was not preserved. We disagreed, stating: ”Art. 36.15 provides that if a party requests a special instruction which is not incorporated into the charge, no additional objection is required.” Ibid. We held the issue was preserved and we addressed the merits of the point of error.

In the instant case, appellant requested a charge on the accomplice status of Martinez and dictated the proposed charge to the court reporter. Nevertheless, the Court of Appeals required appellant to obtain an adverse ruling from the trial judge to preserve the alleged error. Under art. 36.15 and

James, supra, appellant preserved the issue for appellate review. The Court of Appeals erred in holding otherwise. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to that Court for reconsideration of appellant‘s eighteenth point of error. Appellant‘s remaining ground for review is dismissed without prejudice.

Bruce W. Weathers, El Paso, for appellant.

Karen Landinger, Assist. Dist. Atty., El Paso, Robert A. Huttash, State‘s Atty., Austin, for the State.

OPINION ON APPLICANT‘S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

This prosecution arose from an automobile accident in which applicant caused the deaths of two victims. Applicant was convicted of involuntary manslaughter for causing the death of one of the victims. The State is now seeking to prosecute applicant for the death of the other victim. See

Ex parte Rathmell, 717 S.W.2d 33 (Tex.Cr.App.1986). Applicant filed a pretrial writ of habeas corpus in which he claimed the second prosecution violated the double jeopardy clauses of the Federal and State Constitutions. The trial court denied relief. Applicant appealed to the El Paso Court of Appeals which also denied relief. . We granted applicant‘s petition for discretionary review to address the Court of Appeals’ determination that the current prosecution does not violate the double jeopardy clause of Article I, Section 14, of the Texas Constitution.

We now find that our decision to grant applicant‘s petition for discretionary review was improvident. Tex.R.App.Pro. 200(k). Applicant‘s petition for discretionary review is dismissed.

BAIRD, Judge, dissenting.

On direct appeal, the Court of Appeals held applicant‘s second prosecution for the offense of involuntary manslaughter which arose out of the same criminal transaction was not jeopardy barred by art. I, § 14 of the Texas Constitution.

Ramirez v. State, 895 S.W.2d 405 (Tex.App.—El Paso 1994). We granted applicant‘s petition for discretionary review to determine the correctness of that holding. Following our grant of review, the parties briefed the issue, and traveled to Austin from El Paso and presented oral argument before this Court. Today, the majority dismisses applicant‘s petition, stating that our initial decision to grant review was improvident. This treatment is identical to that in .

My disagreement in this case is not with the merits of applicant‘s claim nor with the Court of Appeals’ holding. Indeed, when we dismiss a petition we expressly do not reach the merits of the grounds raised therein. Rather my disagreement lies with the majority‘s failure to discharge its duty to address and resolve the issue presented, briefed and argued before this Court. Double jeopardy is a very complex and confusing area of the law, and whether our Constitution provides greater protection than that of its federal counterpart is a continuing question. These questions require our attention. The dismissal of applicant‘s petition at this time, after all of this effort

suggests rather strongly there is something functionally amiss in our initial internal proceedings and related deliberations ... or perhaps more consideration is given to the result below than to the application of the law.

Houston v. State, 846 S.W.2d 848, 849 (Tex.Cr.App.1993) (Clinton, Miller, Baird and Overstreet, JJ., dissenting).

I dissent to this Court‘s dismissal of this petition.

CLINTON, OVERSTREET and MEYERS, JJ., join this opinion.

Notes

All emphasis is supplied unless otherwise indicated.

Art. 36.15 encompasses three situations dealing with requested charges: first, when the trial judge does not include the requested charge; second, when the trial judge does include the requested charge; and, third, when the trial judge learns of the requested charge and then modifies the charge but does not include the requested charge. In the second situation, there is no need to preserve error because the requested charge is given. In the first and third situations, the article clearly specifies that, in order to preserve error, the defendant need do nothing more than call the omission to the trial judge‘s attention.