The court's charge is the instrument by which the trial court instructs the jury on the law, defines legal or technical terms, and poses the critical questions that solicit the jury's verdict. Practitioners should therefore draft their proposed charges carefully. They should call any complaints about the court's charge specifically to the court's attention and obtain rulings on the record. To prepare, practitioners should thoroughly review Texas Rules of Civil Procedure 271 through 279 , analyze the bountiful and developing precedent in this area, and give cautious consideration to the Texas Pattern Jury Charge. What follows is a brief overview of selected topics that are important to charge practice.
I. Components of the Charge
The court's charge is composed of instructions, definitions and questions. The purpose of instructions and definitions is to “enable the jury to render a verdict.” See Tex. R. Civ. P. 277. Instructions are proper if they assist the jury, accurately state the law, and find support in the pleadings and evidence. Union Pac. R.R. Co v. Williams , 85 S.W.3d 162 , 166 ( Tex. 2002) . Definitions should help the jury understand legal and technical terms. Green Tree Acceptance, Inc. v. Combs , 745 S.W.2d 87 , 89 ( Tex. App.—San Antonio 1988, writ denied) .
Questions submit controlling issues to the jury. Controlling issues are those that “require[] a factual determination to render judgment in the case” or that “present[] to the jury a complete ground of recovery or defense.” Collins v. Beste , 840 S.W.2d 788, 790 (Tex. App.—Fort Worth 1992, writ denied) ; Wright Way Constr. Co. v. Harlingen Mall Co. , 799 S.W.2d 415 , 422 ( Tex. App.—Corpus Christi 1990, writ denied) .
While instructions, definitions and questions are meant to guide the jury and enable it to render a verdict, they should not go so far as to invade the jury's fact-finding province. For example, neither instructions nor questions may comment on the weight of the evidence by assuming the truth of a material controverted fact. However, a comment on the weight of the evidence that probably did not cause the rendition of an improper judgment is harmless error. See Lively Exploration Co. v. Valero Transmission Co. , 751 S.W.2d 649, 653 ( Tex. App.—San Antonio 1992, writ denied) (instruction); See Alvarez v. Missouri-Kansas-Texas R.R. , 683 S.W.2d 375 , 377 ( Tex. 1984) (question).
Nor may questions in the charge submit to the jury questions of law. C&C Partners v. Sun Exploration & Prod. , 783 S.W.2d 707 , 715 ( Tex. App.—Dallas 1989, writ denied) , overruled on other grounds by Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc. , 960 S.W.2d 41, 46 (Tex. 1998) . However, submitting questions of law to the jury is harmless error unless extraneous prejudice is shown. Alamo Carriage Serv., Inc. v. City of San Antonio , 768 S.W.2d 937, 943 (Tex. App.—San Antonio 1989, no writ).
II. Broad-form Submission: “Whenever Feasible”
Rule 277 requires that questions be submitted in broad-form “whenever feasible.” Tex. R. Civ. P. 277. “Whenever feasible” means “[i]n any or every instance in which it is capable of being accomplished.” Texas Dep't of Human Servs. v. E.B. , 802 S.W.2d 647, 649 ( Tex. 1990) . The Texas Supreme Court has given more practical meaning to “whenever feasible” by defining circumstances where broad-form submission is not feasible.
For example, broad-form submission is not feasible where valid and invalid liability theories are commingled in the charge ( Crown Life Ins. v. Casteel , 22 S.W.3d 378 ( Tex. 2000) ), where an element of damages lacks legal or evidentiary support ( Harris County v. Smith , 96 S.W.3d 230 ( Tex. 2002) ), or where liability must be apportioned. Romero v. KPH Consol., Inc. , 166 S.W.3d 212 ( Tex. 2005) .
A common rationale in these cases is that the error in the charge probably prevented the appellant from properly presenting its case to the court of appeals. See Tex. R. App. P. 44.1(a) ; Casteel , 22 S.W.3d at 388-89 ; Harris County , 96 S.W.3d at 235 ; Romero , 166 S.W.3d at 227-28 . In Casteel , for instance, the jury answered one broad-form question on liability in the affirmative. However, because the question commingled valid and invalid theories of liability, the jury could have disbelieved the evidence in support of the valid theories and believed only the evidence in support of the invalid theories. The error was harmful because the court of appeals had no way of determining whether the jury based its verdict on the invalid theories. The appellant was therefore prevented from properly presenting its case to the court of appeals.
Even with these mounting exceptions, the Court continues to support broad-form submission. In Harris County , the Court announced, “neither our decision today nor Casteel is a retrenchment from our fundamental commit to broad-form submission.” 96 S.W.3d at 235 . The Court announced again in Romero , “[W]e continue to believe…that ‘[w]hen properly utilized, broad-form submission can simplify conferences and provide more comprehensible questions for the jury.'” 166 S.W.3d at 230 .
Nevertheless, practitioners should be wary of what could effectively become a retreat from broad-form submission back to granulated charges. Practitioners should stay tuned for more developments, such as Urista v. Bed Bath & Beyond , a case currently pending in the Supreme Court. 132 S.W.3d 517, 523 (Tex. App.— Houston [1st Dist.] 2004, pet. granted) (broad-form liability question that commingled valid negligence theory and erroneous inferential rebuttal instruction probably prevented appellant from properly presenting case to the court of appeals). Practitioners should also be wary of changes brought by House Bill 4 to Tex. Civ. Prac. & Rem. Code. Ann. §41.003 regarding unanimous jury findings on exemplary damages.
III. Preservation of Charge Error
A party preserves charge error by making the trial court aware of the complaint, timely and plainly, and by obtaining a ruling. In re B.L.D. , 113 S.W.3d 340 , 349 ( Tex. 2003) ; State Dep't of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235 , 241 ( Tex. 1992) . Despite this liberal test, practitioners should strive to be specific in their complaints about the charge and should try to complain in the proper way. What follows is a brief overview of charge error preservation.
What? Practitioners should call complaints about the charge to the trial court's attention and obtain rulings on the record. Tex. R. Civ. P. 274, 276. Practitioners should have included in the charge those questions, instructions, and definitions on which the party has the burden or are necessary to prevail but also have improper instructions, definitions or questions modified or removed from the charge.
How? The practitioners' tools are objections and requests. Objections should be specific, identifying the portion of the question, instruction or definition that is erroneous, and should also be on the record. Requests must be in writing, in substantially correct form. Tex. R. Civ. P. 272, 274, 278; Elbaor v. Smith , 845 S.W.2d 240 , 244 ( Tex. 1992) .
To raise a complaint based on an omitted definition or instruction , practitioners should make a request . To raise a complaint based on an omitted question , they should use a request if they have the burden or an objection if the opposing side has the burden . To raise a complaint based on a defective question, instruction or definition , the practitioner should object and probably also make a request .
Practitioners should be sure rulings on objections are on the record and that if and when the judge refuses a request, he or she “endorse[s] thereon ‘Refused,' and sign[s] the same officially.” Tex. R. Civ. P. 276. The Court has held, however, that if the record shows a request was refused, even where the trial court did not mark it, error will be preserved. See Dallas Mkt. Ctr. Dev. Co. v. Liedeker , 958 S.W.2d 382 , 386 ( Tex. 1997) (per curiam) , overruled on other grounds by Torrington Co. v. Stutzman , 46 S.W.3d 829, 839 ( Tex. 2000) .
When? Before the charge is read to the jury, practitioners should make the trial court aware of any complaint, whether by objection, request, or both. Tex. R. Civ. P. 272. Practitioners should err on the side of objecting early and often, while being cautious not to object too generally or too profusely. See Southeastern Pipe Line Co. v. Tichacek , 997 S.W.2d 166 , 172-73 (Tex. 1999) (error preserved where the trial court was made aware of the complaint three times during trial, but the party did not object or make a request during the charge conference); See Monsanto Co. v. Milam , 494 S.W.2d 534 , 536-37 ( Tex. 1973) (objections that were too general and too profuse were properly overruled).
Why? An aggressive, thorough and studied approach to the process that culminates in the submission of the charge is vital because “[i]t is a party's request for jury issues and instructions, not its pleadings, that determine whether a cause of action is preserved.” Westgate, Ltd. v. State , 843 S.W.2d 448 , 455 ( Tex. 1992) . Further, it is the charge as submitted without objection—not some other unidentified law—that measures the sufficiency of the evidence. Wal-Mart Stores, Inc. v. Sturges , 52 S.W.3d 711 , 715 ( Tex. 2001) ; City of Fort Worth v. Zimlich , 29 S.W.3d 62 , 71 ( Tex. 2000) ; Osterberg v. Peca , 12 S.W.3d 31 , 55 ( Tex. 2000) . Additionally, if an element of a cause of action is omitted from the charge and the party failed to request that it be included or to object to its exclusion, and no written findings are made on this element, the element is deemed found in a manner that supports the judgment. Tri v. J.T.T. , 162 S.W.3d 552, 557-58 ( Tex. 2005) ; Tex. R. Civ. P. 279.
IV. Standards of Review
Generally, the standard of review for charge error is abuse of discretion. In re V.L.K. , 24 S.W.3d 338, 341 ( Tex. 2000) (submission of instruction); Texas Dep't. of Human Servs. v. E.B., 802 S.W.2d 647, 647 ( Tex. 1990) (submission of question). However, the submission of the law is reviewed de novo . St. Joseph Hosp., 94 S.W.3d 513 , 525 ( Tex . 2002) . For example, whether a charge submits the controlling issues is a question of law that is reviewed de novo . Cimarron County Prop. Owners Ass'n. v. Keen , 117 S.W.3d 509, 511 ( Tex. App.—Beaumont 2003, no pet.) .
The trial court has broad discretion in submitting instructions and definitions ( In re V.L.K , 24.S.W.3d at 341), but not quite as much discretion in submitting questions. Ishin Speed Sport, Inc. v. Rutherford , 933 S.W.2d 343, 350 ( Tex. App.—Fort Worth 1996, no writ.) .
When the trial court refuses to submit a requested instruction, the issue on appeal is whether the instruction was reasonably necessary to enable the jury to render a proper verdict. Texas Workers' Comp. Ins. Fund v. Mandlbauer , 34 S.W.3d 909, 912 ( Tex. 2000) . Even if an instruction was erroneous, the error is not reversible unless the record reflects the error probably caused the rendition of an improper judgment. Lewis v. Anderson , 173 S.W.3d 556, 564-65 (Tex. App.—Dallas 2005, pet. denied).
The trial court's discretion in submitting questions is “subject to the requirement that questions must control the disposition of the case, be raised by the pleadings and evidence, and be properly submitted for the jury's deliberation.” Texas Dep't of Transp. V. Ramming , 861 S.W.2d 460 , 463 ( Tex. App.— Houston [14th Dist.] 1993, writ denied) . When the trial court submits or refuses to submit a question, the reviewing court must examine the record for evidence supporting submission and ignore all evidence to the contrary. Elbaor , 845 S.W.2d at 243 . If there is some evidence to support a question and the court does not submit it, the court commits reversible error. Id.
Finally, the end result of a successful challenge to the court's charge is usually a remand. Torrington Co. v. Stutzman , 46 S.W.3d 829, 839 ( Tex. 2000). If the submitted question is defective, the case must be remanded for a new trial. Id. If, however, the submitted question is immaterial, rendition is proper. Id. at 840.
Mario de la Garza is an Associate in the Appellate Section at Haynes and Boone, LLP, in Houston . He gratefully acknowledges Eileen K. Wilson and Kendyl Hanks for permission to use the following articles in preparation of this article: Eileen K. Wilson, The Jury Charge , State Bar of Texas, Appellate Boot Camp, September 6, 2006; Kendyl Hanks, Drafting the Court's Charge.
