holding that review of trial court=s ruling on admissibility of evidence made outside jury=s presence is forfeited if defendant affirmatively asserts that he has Ano objection@ when evidence is offered
How later courts described this case
- holding that review of trial court=s ruling on admissibility of evidence made outside jury=s presence is forfeited if defendant affirmatively asserts that he has Ano objection@ when evidence is offered
- jury can find that defendant will constitute future threat to society based on circumstances of the offense alone
- review of ruling made outside presence of jury was waived when defendant said, “No objection" to offer of evidence in presence of jury
- An objection based on relevance will not preserve error for an objection to the improper use of character evidence.
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
CAMPBELL, Judge.
Appellant was convicted of capital murder. On original submission we affirmed appellant’s conviction. James v. State, 772 S.W.2d 84 (Tex.Cr.App.1989). We granted appellant’s motion for rehearing for the sole purpose of addressing a point of error raised, but not addressed on original submission. 1
Appellant argues that the trial judge erred in overruling appellant’s request for a special instruction at the punishment phase which would inform the jury that “intentional” and “deliberate” have different meanings. The State responds that appellant failed to preserve this error and, alternately, under Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984), that no such instruction was necessary.
Art. 36.15 V.A.C.C.P. provides that if a party requests a special instruction which is not incorporated into the charge, no additional objection is required. Prior to the charge being delivered to the jury, appellant requested that the following instruction be included in the charge:
[A]s used in the first special issue, the word ‘deliberately’ has a meaning different and distinct from the word ‘intentionally’ as that word was previously defined in the charge on guilt.
We find that error, if any, was preserved.
In Heckert v. State, 612 S.W.2d 549, 552 (Tex.Cr.App.1981), we held that “deliberate,” as used in Art. 37.071(b)(1) V.A.C.C.P., is not the “linguistic equivalent” of “intentional,” as used in Y.T.C.A. Penal Code, § 19.02(a)(1). Appellant uses this holding as the legal basis for this requested instruction. Although the requested instruction correctly states the law, a defendant is not entitled to an instruction merely because it correctly states the law. See, e.g., Sanders v. State, 707 S.W.2d 78 (Tex.Cr.App.1986). The instant case is such an example of a “correct” instruction that is not required. 2
*113 As stated in our opinion on original submission, there is no need to define the word “deliberate” in the charge to the jury. The basis for this holding is that words not defined statutorily are deemed to employ their usual meanings and the jury is capable of utilizing that usual meaning without a specific instruction. King v. State, 553 S.W.2d 105, 107 (Tex.Cr.App.1977). Because we assume that jurors attach a common understanding to the meaning of the term “deliberate” and they were given the statutory definition of “intentional” in the charge on guilt/innocence, they were able to draw distinctions between the two words without specific guidance from the trial court. In addition, during voir dire, the jurors were informed by both counsel that the two words have different meanings and that a finding of “intentional” conduct at guilt/innocence would not mean that they should automatically answer the first special issue affirmatively. For these reasons, the trial judge did not err in denying appellant's requested instruction. Appellant’s point of error is overruled.
Appellant’s motion for rehearing is in all respects denied, and the judgment of the trial court is affirmed.
DUNCAN, J., concurs in result.
CLINTON and TEAGUE, JJ., dissent.
. In Williams v. State, 674 S.W.2d 315 (Tex.Cr.App.1984), the defendant requested that the charge define "deliberate.” We stated, "while a definition of deliberate would have been help *113 ful, it was not essential and we therefore find no error is presented.” Id. at 622.
A footnote in Williams, supra at 322 n. 6, went on to say that a majority of the Court did not feel that an instruction to the effect that "intentional" and "deliberate” have distinct definitions was necessary. This footnote, although agreeing with today’s decision, is not controlling. The issue presented in this point of error was not present in Williams , thus making the statement dictum.