Can You Claim Errors In the Charge (On Appeal) Without Objection During Trial ?
In Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998), the court of criminal appeals held that article 36.14 of the code of criminal procedure requires a defendant to object to the charge before she may 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." Id. at 61.
The court observed that any other holding would impose a duty on the trial court to sua sponte instruct the jury on unrequested defensive issues, rendering article 36.14 meaningless. Id.
The court further explained that a contrary holding would encourage defendants to lie behind the log in order to preserve the opportunity to retry the case on appeal under a new defensive theory. Id. at 63.
According to the court, its decision was not in conflict with Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (op. on reh'g), because "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 . . . ." Posey, 966 S.W.2d at 61 n.9.
As set out in Coleman v. State, 979 S.W.2d 438 (Tex. App.-Waco 1998, no pet.), some appellate courts have interpreted Posey to "require an objection or request to avoid waiver on appeal only when the charge wholly omits a defensive issue." Id. at 442.