Jerry Wayne Williams v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00014-CR
Jerry Wayne WILLIAMS,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 16-0421-CR-C
Honorable Doug Shaver, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: April 4, 2018
AFFIRMED
Jerry Wayne Williams was convicted by a jury of sexual assault and assault family violence
and sentenced as a habitual offender to life imprisonment. The sole issue presented on appeal is
whether the trial court erred in refusing to grant defense counsel time to examine the jury charge
and present objections to the charge. Because Williams failed to preserve this complaint for our
review, we affirm the trial court’s judgment.
04-17-00014-CR
BACKGROUND
At the end of the first day of trial, the prosecutor informed the trial court that a copy of a
proposed charge should be in the court’s file and a copy of the charge had been given to defense
counsel. On the second day of trial, defense counsel requested a lunch recess after the State rested.
Upon returning from the lunch recess, defense counsel also rested, both sides closed, and the trial
court read the charge to the jury. No objections relating to the charge appear in the reporter’s
record.
DISCUSSION
As previously noted, Williams contends the trial court erred in refusing to grant defense
counsel time to examine the jury charge and present objections to the charge. As a result, Williams
asserts the trial court violated the mandatory requirements of article 36.14 of the Texas Code of
Criminal Procedure which provides:
Before [the jury] 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. Said objections may
embody 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, and in no event shall it be necessary for the
defendant or his counsel to present special requested charges to preserve or
maintain any error assigned to the charge, as herein provided. The requirement that
the objections to the court’s charge be in writing will be complied with if the
objections are 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. Compliance
with the provisions of this Article is all that is necessary to preserve, for review, the
exceptions and objections presented to the charge and any amendment or
modification thereof. In no event shall it be necessary for the defendant to except
to the action of the court in over-ruling defendant's exceptions or objections to the
charge.
TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
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04-17-00014-CR
The record in this case reflects that as soon as the State rested, a lunch recess was taken.
Upon returning from the recess, both sides closed, and the trial court read the charge to the jury.
No objections were made at that time.
The record does not affirmatively show defense counsel was not given an opportunity to
review the charge before it was read to the jury. Rather, the record reflects the prosecutor provided
defense counsel with a copy of the proposed jury charge before the end of the first day of trial.
Other than the prosecutor’s statement regarding the proposed charge, the record is silent about
defense counsel’s opportunity to examine the charge and make objections. Given the timing of
the lunch recess, an off-the-record discussion about the charge could have occurred during the
recess, which might explain why no objection was made when the trial court proceeded to read the
charge to the jury immediately after both sides closed following the recess. Or, defense counsel
may not have had any objections to the charge.
If defense counsel was not given the opportunity to review the charge before the trial court
began reading it to the jury, it was incumbent upon him to object immediately. Ortiz v. State, No.
05-16-00817-CR, 2018 WL 416495, at *5 (Tex. App.—Dallas Jan. 16, 2018, no pet.) (mem. op.,
not designated for publication); Williams v. State, No. 04-07-00738-CR, 2008 WL 2355709, at *5
(Tex. App.—San Antonio June 11, 2008, pet. ref'd) (mem. op., not designated for publication);
Jackson v. State, 87 S.W.3d 677, 679 (Tex. App.—Eastland 2002, no pet.). Furthermore, if defense
counsel did object to the charge and the court reporter did not record his comments, it was
incumbent upon defense counsel to object to the court reporter’s failure to record the proceedings.
See Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996); Williams, 2008 WL 2355709,
at *5. “‘[T]he purpose of requiring a timely, specific objection is to allow the trial court to have
the opportunity to make a determination and ruling on the complained-of point’ and make
corrections, if necessary.” Williams, 2008 WL 2355709, at *5 (quoting Brossette v. State, 99
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04-17-00014-CR
S.W.3d 277, 285 (Tex. App.—Texarkana 2003, pet. ref’d)). Because no objection was made to
the trial court’s reading of the jury charge or to the court reporter’s failure to record such an
objection, if any, Williams’s sole complaint has not been preserved for our review. See id.; see
also TEX. R. APP. P. 33.1.
We note that even when a defendant fails to object to a charge which contains error, a trial
court’s judgment still will be reversed on appeal if the record shows egregious harm to the
defendant. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). In his brief, however,
Williams does not assert the jury charge contained any error.
CONCLUSION
Because the only issue Williams presents on appeal was not preserved for this court’s
review, we overrule the issue and affirm the trial court’s judgment.
Rebeca C. Martinez, Justice
DO NOT PUBLISH
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