Jеrry PENNINGTON, Appellant, v. The STATE of Texas, Appellee.
No. 971-82.
Court of Criminal Appeals of Texas, En Banc.
July 10, 1985.
387
For the above reasons, I dissent.
MCGEE, J., joins in this dissenting opinion.
DISSENTING OPINION ON MOTION FOR REHEARING
KILGARLIN, Justice, dissenting.
I concur with thе dissent of Justice Gonzalez but would offer an additional reason why the judgment of the court of appeals should be affirmed.
Boswell, O‘Toole, Davis & Pickering filed its petition in intervention for attorney‘s fees in the divorce action between Theresa Van Dyke and Gene Van Dyke on May 9, 1980. It was not until September 25, 1980 that an instrument styled “Answer of Theresa Van Dyke to Plea in Intervention of Boswell, O‘Toole, Davis & Pickering” was filed. Trial was already scheduled for September 30, 1980, at the time of the filing of the answer. On the day of trial, Boswell, O‘Toole filed a motion to strike the answer, in which they alleged that they had not learned until the previous day that the answer had been filed. In the motion to strike, the firm аlleged that the answer was a complete surprise; that it was filed without prior leave of court, and within seven days of the date of trial, all in violation of
The record fails to reveal that the trial court ever granted leave for the filing of Theresa Van Dyke‘s answer. The motion to strike should have been granted by the trial court because of the late filing and showing of surprise.
After the jury trial with its verdict favorable to Boswell, O‘Toole, the trial judge granted their motion for summary judgmеnt. Our court now concludes that it was error for the trial judge to grant the summary judgment on a res judicata theory. While I disagree with the court as to this holding, a summary judgment was nevertheless proper even if it was granted on an erroneous ground if it “may properly be upheld on an alternative ground expressly presented to the trial сourt . . .” Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668 (Tex.1984). Because Boswell, O‘Toole‘s motion to strike was an alternative ground that would properly be upheld, the subsequent granting of the summary judgment should be affirmed irrespective of the stated basis on which that judgment was granted.
Moreover, Mrs. Van Dyke had her day in court оn her defensive theory of legal malpractice. During the trial to the jury on the issue of attorney‘s fees, the record is replete with instances where Mrs. Van Dyke‘s attorney injected legal malpractice into the case in an effort to defeat the claim for attorney‘s fees. The jury chose not to accept her theory.
Final judgment in behalf of Boswell, O‘Toole was proper.
MCGEE, J., joins in this dissenting opinion.
Ronald Earle, Dist. Atty. and Philip A. Nelson, Jr., Asst. Dist. Atty., Austin, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
ONION, Presiding Judge.
Appellant was indicted for murder.1 Two prior felony convictions were alleged for enhancement of punishment. The jury found appellant guilty of the lesser included offense of voluntаry manslaughter. Upon proof of one of the alleged prior convictions, the jury assessed punishment at 22 years’ imprisonment.
On appeal the appellant raised a number of grounds of error. His sixth ground of error read:
“The trial court erred in overruling appellant‘s objection to the trial court‘s submission to the jury of the lеsser included offense of ‘voluntary manslaughter’ for the reason that such lesser included offense was not raised by the evidence and that such charge to the jury only served to confuse the jury as to the issues involved, thus permitting the jury panel in this case to ‘compromise’ its verdict to the detriment of the appellant.” (Emphasis suрplied.)
The Austin Court of Appeals overruled all grounds of error and affirmed the conviction. Pennington v. State, 644 S.W.2d 64 (Tex.App.-Austin 1982). In overruling the sixth ground of error, the Court of Appeals held that if the evidence raises the issue of a lesser included offense a charge thereon is properly given, and that a defendant does not, however, have an exсlusive proprietary interest in lesser included offense charges to the jury. The court concluded the evidence in the instant case was sufficient to require the submission of the charge on the lesser included offense of voluntary manslaughter.
In his petition for discretionary review, appellant argues in a sole ground of rеview that the Court of Appeals erred in holding the trial court properly charged on voluntary manslaughter where there was no evidence to support such a charge and where evidence showed jurors reached a “compromise verdict” on the unsupported lesser included offense charge.
We granted appellant‘s petition to determine the correctness of the Court of Appeals’ disposition of appellant‘s sixth ground of error.
In the course of our research and examination of the record, we find that with the trial court‘s permission appellant‘s counsel orally dictated his objections to thе court reporter in the court‘s presence. See
“MR. GREENWOOD (Defense Counsel): The Court has charged on voluntary manslaughter. We object to the Court‘s charge on voluntary manslaughter. We do not want any lesser included offenses in the chаrge and we object to it; straight murder or not guilty. Now, if the Court is of a mind to charge on voluntary manslaughter, for the same reason as any other affirmative defense we think that the Melany versus William Ayers, A-y-e-r-s opinion by the Court of Criminal Appeals would also apply in the lesser included offense situation and we would submit that if the Court is going to givе that charge, that that charge is still fundamentally defective for failing to misapply the burden of proof.
“THE COURT: Now, wait a minute. Are you talking about in 6?
“MR. GREENWOOD: Yes, sir. Keep going?
“THE COURT: Go ahead.”
Later, after other oral objections to the charge, we find:
“MR. GREENWOOD: . . . Of course, the reasons are that we don‘t want any lesser included offense in this case because the State has gotten Mr. Pennington indicted as an habitual criminal, and if he is convicted of any of these lesser included оffenses, especially in view of the Court‘s ruling as to the validity of these prior convictions, then he goes for life anyway. So with that in mind, we object to the Court‘s ruling on all of those. Note our exception.”2 (Emphasis supplied.)
We have found no written objections to the charge nor any special requested charges. See
“Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. . . . * * * The requirement that the objections dictated to the court reporter in the presence of the court and the state‘s counsel before the reading of the court‘s charge to the jury . . . .” (Emphasis supplied.)
This article is mandatory and there must be strict compliance with its provisions to warrant review. Seefurth v. State, 422 S.W.2d 931, 935 (Tex.Cr.App.1967); Templeton v. State, 152 Tex.Cr.R. 121, 210 S.W.2d 168 (Tex.Cr.App.1948); Cedillo v. State, 307 S.W.2d 267 (Tex.Cr.App.1957); Hays v. State, 84 S.W.2d 1008 (Tex.Cr.App.1935); Everett v. State, 57 S.W.2d 140 (Tex.Cr.App.1933). See James v. State, 418 S.W.2d 513 (Tex.Cr.App.1967).
The real purpose of this enactment is to enable the trial judge to know in what respect the defendant regards the charge as defective and to afford him an opportunity to correct it before reading the charge to the jury. Seefurth v. State, supra at 936, and cases there cited. See also Fiveash v. State, 125 Tex.Cr.R. 345, 67 S.W.2d 881 (Tex.Cr.App.1934).
This article serves a stаtutory purpose in preventing the trial judge from being “sand-bagged” and in preventing unnecessary reversals. Seefurth v. State, supra at 936. It is a statute which the courts can neither ignore nor emasculate. See Vinson v. State, 179 S.W. 574 (Tex.Cr.App.1915).
Thus as a predicate for complaint to a jury charge on appeal the accused is required to distinctly specify each ground of objection. Littleton v. State, 239 S.W. 202 (Tex.Cr.App.1922). To constitute a valid objection to jury instructions, the objection must be specific and clear enough to apprise the trial court of the nature of the objection. James v. State, 418 S.W.2d 513 (Tex.Cr.App.1967); Wells v. State, 634 S.W.2d 868, 872 (Tex.App.-Houston [1st Dist.] 1982-pet. ref‘d.). If the objection is not specific enough, nothing is presented for review. Hackbarth v. State, 617 S.W.2d 944 (Tex.Cr.App.1981); Smith v. State, 439 S.W.2d 834 (Tex.Cr.App.1969); Cage v. State, 320 S.W.2d 364 (Tex.Cr.App.1959); Bratton v. State, 111 S.W.2d 259 (Tex.Cr.App.1938).
It is clear then that a general objection which does not distinctly specify the claimed error in the charge is not sufficient to preserve error. Myers v. State, 468 S.W.2d 847 (Tex.Cr.App.1971); Young v. State, 422 S.W.2d 444 (Tex.Cr.App.1968); Crabtree v. State, 137 Tex.Cr.R. 63, 127 S.W.2d 906 (Tex.Cr.App.1939); Boss v. State, 134 Tex.Cr.R. 593, 116 S.W.2d 739 (Tex.Cr.App.1937).
An examination of the objections made by the appellant does not show that he distinctly specified to the trial judge that he was objecting to the submission of voluntary manslaughter “for the reason that such lesser included offense was not raised by the evidence.” He generally objected stating he did not want the charge, but he did not object on the ground he now urges on appeal. His sixth ground of error leaves the contrary impression. The Court of Appeals did not observe this discrepancy, apparently relying on appellant‘s brief. Since the trial objection to the charge did not comport with the contention on appeal, nothing was presented for review. Error presented on appeal must be the same as the objection raised before the trial court. Nelson v. State, 607 S.W.2d 554, 555 (Tex.Cr.App.1980); Simpkins v. State, 590 S.W.2d 129 (Tex.Cr.App.1979); Bouchillon v. State, 540 S.W.2d 319 (Tex.Cr.App.1976); Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). See also Vanderbilt v. State, 629 S.W.2d 709 (Tex.Cr.App.1981); McIlveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977).
The judgment of the Court of Appeals is affirmed.
CLINTON, Judge.
The Austin Court of Appeals preliminarily noted: “Over appellant‘s objection, the district court charged the jury on voluntary manslaughter.” Pennington v. State, 644 S.W.2d 64, 65 (Tex.App.-Austin 1982). From its own point of view a majority of this Court would have it that appellant did not object that the evidence was insufficient to support submission of the issue, and it faults the Austin Court of Appeals for “not observ[ing] this discrepancy.” In my judgment to dispose of this cause on that kind of “review” of a thoughtfully crafted opinion by a court of appeals, clearly setting forth reasons for its decision, at once demeans respective roles of this Court, courts of appeals and parties in the appellate process of our criminal justice system.
In a murder case such as this one, voluntary manslaughter is always putatively tendered by the charging instrument as a lesser included offense. Then if it is properly raised by evidence the trial judge must include an instruction on voluntary manslaughter in the charge to the jury.
In instant cause the trial judge had prepared a proposed charge, presented it to counsel and, following preliminary discussion in chambers, returned to thе courtroom “for the purpose of taking objections and suggestions.” Whereupon a loose unstructured colloquy between the judge and counsel for appellant followed. It cannot be gainsaid that appellant voiced an objection “to the court‘s charge on voluntary manslaughter,” and as shall be seen the trial judge stayed with his determination that there was sufficient evidence to warrant submitting it.
The majority chooses to focus on statements by counsel that defense “[did] not want any lesser included offenses in the charge . . .”2 Yet that statement does not negate an objection on the only proper basis for making it, nor is that the whоle story. Later on in the same colloquy appellant pointed out, “[W]e have previously objected to the Court‘s giving the voluntary manslaughter charge,” and then, contrary to his earlier expressions, he requested “that the Court give a charge on criminal negligent homicide.” The judge responded that, as he had said in chambers, where accident is given upon request an accused is entitled to an instruction on criminal negligent homicide, and added, “I am also of the opinion that under the same defense the facts raised is voluntary manslaughter.” With that understanding and given a request for criminal negligent homicide, he said that the court would include all lessеr included offenses of murder, “but I will not skip involuntary manslaughter and go to criminal negligent homicide.” After private deliberations the defense withdrew its request for an instruction on criminal negligent homicide, and concluded with the statement last quoted in the majority opinion.
Accordingly, I would review the ground in this cause on the same premise аs the Austin Court of Appeals: that the trial court charged the jury on voluntary manslaughter “[o]ver appellant‘s objection.” Having done that I would find as the State asserts the evidence sufficient to warrant
Therefore, I join only the judgment of the Court.
MILLER, J., joins.
TEAGUE, Judge, dissenting.
I respectfully dissent to the manner in which the majority signed and published opinion disposes of the contention that is presentеd on behalf of Jerry Pennington, appellant, by Hon. Roy Greenwood, his trial and appellate attorney, namely, that the trial court should not have instructed the jury on the lesser included offense of voluntary manslaughter because the evidence did not raise this offense.
Judge Clinton of this Court has both eloquently and forcefully correctly observed on several occasions this Court‘s present function when it comes to reviewing a decision of a particular court of appeals. Just recently he reaffirmed his belief by stating the following:
The power and authority granted this Court is to review ‘decisions of the courts of appeals.’ Article V, Seс. 5, Constitution of the State of Texas; Articles 4.04, Sec. 2, 44.01 and 44.45, V.A.C.C.P. A decision flows from ‘the reason for such decision’ set forth in a written opinion of a court of appeals. Article 44.24, id. Thus, the discretionary function of [this] Court is to determine whether ‘the reason for such decision’ is correct in law. However, the majority expressly declinеs to address the reason given by the court of appeals for its decision to reverse the judgment of conviction in this cause, although review was granted for that very purpose. Instead, the majority favors the State with a sort of de novo determination of a claim that has not been presented to and decided by thе court of appeals. Laday v. State, 685 S.W.2d 651, 653 (Tex.Cr.App.1985) (Clinton, J., Concurring Opinion.
Also see Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984) (Clinton, J., Dissenting Opinion).
In this instance, the majority is acting much like an intermediate appellate court might act in reviewing a ground of error presented for review. This Court, however, is not an intermediate court, but, instead, is the supreme court of criminal appeals for the great State of Texas. The majority оpinion should be quickly but gracefully withdrawn.
Greenwood asserted on direct appeal that the trial judge should not have, over his trial objections, instructed the jury on voluntary manslaughter. From the trial objections Greenwood made in the trial court, I find that Greenwood clearly demonstrated for the record that he did not want voluntary manslaughter included in the court‘s charge.
I also believe that then Chief Justice Phillips, and then Justice Shannon and Justice Powers of the Austin Court of Appeals, and presumably their staffs, did not suffer from myopia when they considered, and rejected, the contention Greenwood presents to us for review. See Pennington v. State, 644 S.W.2d 64 (Tex.App.-Austin 1982).
This Court granted apрellant‘s petition that was prepared and filed by Greenwood in order to make the determination whether the court of appeals correctly decided Greenwood‘s contention. We should address appellant‘s contention, and not favor the parties with a sort of de novo determination of a сlaim that has not been presented to and decided by the Austin Court of Appeals.
I respectfully dissent to what the majority does in this cause.