RICKEY DON MOSS, Appellant v. THE STATE OF TEXAS, Appellee

Affirmed and Opinion filed November 6, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-88-01461-CR
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RICKEY DON MOSS, Appellant
V.
THE STATE OF TEXAS, Appellee
 
.................................................................
On Appeal from the 196th District Court
Hunt County, Texas
Trial Court Cause No. 14,915
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O P I N I O N
Before Justices Whitham, Baker and Ovard
Opinion By Justice Whitham
        Appellant appeals a conviction for murder. We find no merit in any of appellant's three points of error. Accordingly, we affirm.
        In his first point of error, appellant contends that the trial court erred in ignoring his objections to the incomplete and deficient verdict of the jury and in sending the jury back to the jury room for further deliberations without first giving appellant an opportunity to poll the jury members on the deficient part of the verdict. We shall address the two aspects of this point of error in reverse order. Upon the return of the jury after deliberations, the trial court read the verdict and announced that the jury had found the appellant guilty of murder as charged in the indictment. However, the jury had not completed the second paragraph of the charge which read:
        Answer this issue only if you have found the Defendant guilty. Mark out the appropriate word. We, the jury, find beyond a reasonable doubt that the Defendant, Ricky Don Moss, did or did not use or exhibit a deadly weapon during the commission of the offense for which the Defendant has been found guilty.
At this point, the judge returned the deficient judgment form to the jury for further deliberations. At that time, appellant made the following objection:
        [DEFENSE COUNSEL]: Your Honor, at this time--Excuse me. At this time the Defendant would respectfully object to the Court handing the verdict form back to the jury, and, in effect, instructing the jury as to what to do, after the jury did not reach a complete verdict.
Before the jury was excused to continue its deliberations, the following exchange occurred:
        THE COURT: Does either side desire that each name be called and for the jury to be polled?
 
        [PROSECUTOR]: No, Your Honor.
 
        [DEFENSE COUNSEL]: Your Honor, I would like to continue my objection.
Thus, appellant was afforded an opportunity to poll the jury, an opportunity which he did not exercise. Since appellant was given an opportunity to poll the jury, he cannot complain on appeal that he was denied that very opportunity.
        When the trial court returned the incomplete verdict form to the jury, appellant objected (see above). However, appellant did not press the court for a ruling at that time. Further, after the jury had been excused to continue their deliberations, the court allowed appellant to present his objections--which he did. The objections were overruled by the court, and appellant does not herein complain of those rulings by the court. Thus, appellant's contention that the trial court ignored his objections is not supported by the record. We overrule appellant's first point of error. In overruling appellant's first point, we do not consider whether appellant had a right to poll the jury on its incomplete verdict or whether the deadly weapon finding was necessary in light of the jury's answer to the first question.
        In his second point of error, appellant contends that the trial court erred in not recognizing the State's failure to produce a material witness which created a reasonable doubt as to sufficiency of the evidence to support the conviction. When appellant was arrested and booked, the arresting officer, Officer Nunn, was accompanied by a police cadet. However, this cadet's name was not included in the State's witness list provided to appellant and he did not testify at trial. On appeal, appellant relies upon the holding of Ramirez v. State, 289 S.W.2d 251, 261 (Tex. Crim. App. 1956) (opinion on rehearing) which states:
        Where the testimony upon which the State relies for a conviction is obviously weak and the record affirmatively reflects that there was testimony available to the State which would have thrown additional light on the facts, and which the State did not introduce or satisfactorily account for its failure to do so, this Court will treat the case as one evidencing a reasonable doubt as to the sufficiency of the evidence to support the conviction.
(cites omitted). However, in 1986, the Court of Criminal Appeals overruled Ramirez stating:
        The supposed logic of the "weak circumstantial evidence case" standard of review, which is discussed in 24 Tex. Jur.2d, Evidence, Sec. 745, p. 927, stems from the untenable presumption that the State's failure to produce and failure to account for the non-production of "available testimony" creates reasonable doubt as a matter of law. [cites, including Ramirez, omitted] This presumption is rational only if it is assumed that the production of the "available testimony" would have created reasonable doubt in the case. Such an assumption is unreasoned . . . . Either the evidence permits a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt or it does not. What is not in evidence is irrelevant to a determination of the sufficiency of the evidence.
Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986). We further note that Officer Nunn testified that the cadet's testimony would be substantially the same as his own. Appellant did not object to this testimony. Error is not preserved in absence of objection. Esquivel v. State, 595 S.W.2d 516, 524 (Tex. Crim. App.), cert. denied, 449 U.S. 986 (1980); Tex. R. App. P. 52(a). Thus, we overrule appellant's second point of error.
        In his final point of error, appellant contends that the trial court erred in failing to submit the issue of the voluntariness of appellant's self incriminating and confession statements to the jury. At oral argument, appellant admitted that he did not object to the charge submitted to the jury. Appellant further admitted that he did not submit a proposed instruction to the court. If no objection was made to the charge at trial, the accused must claim that the error, if any, was "fundamental error," and must further show that any error was so egregious and created such harm that he has not had a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Neither in appellant's brief nor at oral argument did appellant complain of any "fundamental error" in the trial court's charge. Since appellant did not object to the charge at trial and does not assert fundamental error in this appeal, we hold that appellant waived his third point of error. Thus, we overrule appellant's third point of error.
 
        Affirmed.
 
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
881461.U05
 
 
File Date[11-06-89]
File Name[881461]