Preserving error in the jury charge can be a daunting task during the heat of trial. Two decisions from last year illustrate the importance of the timing of the objection. In one, the objection came just a little too late. And in the other, the objection was too early.
The San Antonio Court of Appeals looked at an objection that was too late in Wackenhut Corp. v. Gutierrez, No. 04-10-00661-CV, 2011 WL 3915630 (Tex. App.--San Antonio Sept. 7, 2011, no pet. h.). The court's charge included a spoliation instruction. At the formal charge conference, appellant's counsel stated that he had no objections to the proposed charge. Then, right after the charge was read to the jury, appellant's counsel requested a bench conference and objected to the spoliation instruction. The court of appeals held that the error was waived.
Because Texas Rule of Civil Procedure 272 is very clear that an objection must come before the charge is read to the jury, the Gutierrez decision is not very surprising. But careful lawyers should be aware that an objection can also be made too early. Jones v. Cortes, No. 02-10-00304-CV, 2011 WL 4008021 (Tex. App.--Fort Worth Sept. 8, 2011, no pet.). Jones is a premises-liability case, and the appellant complained that the trial court submitted the liability question with an instruction on licensee status. She asserted that the jury should have been instructed on invitee status. But she did not raise this objection at the formal charge conference. On appeal, she argued that she had preserved error by submitting a proposed charge two days before the charge conference with an instruction on invitee status. The court of appeals noted that she did nothing to bring the prior filing to the trial court's attention during the charge conference. Nor was the written request "endorsed" and signed as required by Rule 276. Therefore, the earlier objection was not sufficient to preserve the complaint about the charge.
Trial lawyers should therefore remember that the "just right" time to preserve error in the charge is during the formal charge conference. Failure to object at that time risks waiver, even if the objection was raised earlier.
-- Rich Phillips, Thompson & Knight
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