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MEMORANDUM OPINION
No. 04-09-00550-CV
Guadalupe YZAGUIRRE,
Appellant
v.
UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,
Appellee
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-17261
Honorable Martha Tanner, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: April 7, 2010
AFFIRMED
Appellant Guadalupe Yzaguirre sued appellee University of Texas Health Science Center at
San Antonio under the Texas Labor Code for age discrimination, gender discrimination, and
retaliation. After a jury trial on the merits, the jury answered “No” to each theory of liability, and
the trial court rendered judgment in favor of appellee. On appeal, appellant asserts the trial court
erred in denying his requested jury instruction pertaining to his opposition to “unlawful employment
practices.” We affirm.
04-09-00550-CV
DISCUSSION
In his sole issue on appeal, appellant argues his proposed jury instruction should have been
included in the jury charge because, according to appellant, he submitted a written proposed jury
instruction and formally objected on the record to the trial court’s denial of the instruction. His
written proposed instruction, however, does not appear anywhere in the record. In any event,
appellant asserts that the language of the proposed jury instruction can be ascertained within the
context of his formal objections on the record—that is, his oral objections to the trial court.
Texas Rule of Civil Procedure 278 requires a party to request and tender to the trial court a
substantially correct instruction in writing when the trial court omits a requested instruction from the
jury charge. TEX . R. CIV . P. 278; Medistar Corp. v. Schmidt, 267 S.W.3d 150, 159 (Tex. App.—San
Antonio 2008, pet. denied). Merely dictating a requested instruction to the court reporter is not
sufficient to support an appeal based on the trial court’s refusal to submit the instruction. Hartnett
v. Hampton Inns, Inc., 870 S.W.2d 162, 165 (Tex. App.—San Antonio 1993, writ denied). If a party
fails to tender a substantially correct instruction in writing, any error by the trial court in not
submitting the instruction to the jury is waived. Medistar Corp., 267 S.W.3d at 159; Hartnett, 870
S.W.2d at 166.
Here, even if we assume appellant tendered to the trial court a proposed jury instruction in
writing, we are unable to determine whether the proposed instruction amounts to a substantially
correct instruction: the requested instruction is not contained in the clerk’s record, nor is it attached
to appellant’s motion for new trial. Second, if dictating to the court reporter a requested instruction
is insufficient to preserve error, see Hartnett, 870 S.W.2d at 165, then attempting to ascertain the
language of the proposed instruction based on a reading of the transcript of appellant’s objections
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04-09-00550-CV
to the trial court is also insufficient to preserve error. In sum, the record does not reflect that
appellant submitted to the court in writing a substantially correct jury instruction. Therefore, we
conclude appellant has waived any error regarding his requested instruction.
CONCLUSION
We affirm the trial court’s judgment.
Sandee Bryan Marion, Justice
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