IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0477-19

ISSAC WILLIAMS, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY

NEWELL, J., delivered the opinion of the Court in which

KELLER, P.J., HERVEY, RICHARDSON, KEEL, and SLAUGHTER, JJ., joined.

YEARY, J., filed a dissenting opinion in which WALKER and

MCCLURE, JJ., joined.

After a jury trial, Issac Williams was found guilty of continuous

trafficking of persons and was sentenced to fifty years in prison. Williams

had testified that he committed no offense at all. The court of appeals

held that the trial court erred in denying his request for a jury instruction

on the lesser-included offense of human trafficking of persons, reversed
Williams — 2

the judgment of the trial court, and remanded the cause for a new trial.1

We have previously held that a trial court has no duty to sua sponte

instruct on a lesser-included offense.2 Requests for such instructions are

matters of trial strategy that are treated like defensive instructions.3

Accordingly, it is incumbent upon defense counsel to preserve error on his

requested instruction.

4 Williams failed to preserve error in this case

because he failed to point to the specific evidence in the record that

raised the lesser-included offense, even after he was asked to do so by

the trial court. We will reverse and remand.

Trial

Appellant was accused of the continuous trafficking of B.F., a minor. 

This required proof that, during a period that was 30 or more days in

duration, Appellant engaged two or more times in conduct that

1 Williams v. State, 582 S.W.3d 612, 614–15 (Tex. App.—San Antonio 2019).

2 Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010).

3

Id.; Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007) (explaining

that a trial judge does not have a sua sponte duty to instruct the jury on all potential defensive

issues, lesser included offenses, or evidentiary issues—as these issues frequently depend upon

trial strategy and tactics). See also Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App.

2018) (Almanza’s harm standards do not apply when a defendant fails to object to the absence

of a defensive issue in the jury charge because the trial court will have committed no error at

all, given that “not every defense-benefitting instruction is ‘law applicable to the case.’”).

4 See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (holding that a trial

court is not statutorily required to sua sponte instruct the jury on a mistake of fact “defensive

issue” because a “defensive issue” is not “applicable to the case” unless the defendant timely

requests the issue or objects to the omission of the issue in the jury charge).
Williams — 3

constitutes an offense under Section 20A.02 (“trafficking”) against B.F.5

At trial, B.F. testified that she (“Amber”) and Deborah Ameia Cooper

(“Kandy”) were “adult escorts” handled by Appellant. B.F. said she was

fifteen when she met Appellant on social media; Appellant was in his late

twenties. B.F. and Appellant messaged each other for several months

before meeting in December 2013 at a park in Killeen, Texas. The park

was within walking distance of the apartment B.F., by then sixteen,

shared with her mother. B.F. and her mother had gotten into an

argument, and her mother had “kicked her out.”

B.F. said she and Appellant talked for about an hour in his Cadillac. 

Appellant asked B.F. about her past sexual experiences, and B.F. told him

about prostituting in Maryland when she was thirteen. Appellant said he

would take care of her—give her a life better than she had with her

mother. B.F. testified they had sex in the car, and Appellant later took

her to a hotel, “when the actual and real conversation came up” of what

she was actually going to be doing.

On his phone, Appellant pulled up “backpage.com” (“Backpage”)

and showed her the adult escorts advertisements. Appellant explained

5 TEX. PEN. CODE § 20A.03; TEX. PEN. CODE § 20A.02.
Williams — 4

the process of placing ads to find customers and how B.F. could get

started and make some money. Appellant introduced her to twenty-yearold Cooper, took the pair to the store to buy “cute underwear,” and took

photos to create a Backpage advertisement. B.F. testified they used gift

cards to pay for the twelve-dollar ads. Because they were “competing

with over 50,000 girls from all different countries, states, cities,” they had

to keep placing ads to get theirs noticed because “you have to get [on]

the first three pages in order for someone to call you, which is basically

the client. And then, you just proceed from there.”

Over three thousand pages of Backpage records were introduced as

an exhibit at trial. The records included copies of hundreds of Backpage

ads that had run from December 9, 2013, to August 14, 2014. The ads

included Cooper’s email address6 and, starting in late December 2013, 

photos of B.F. and Cooper, and a message, either from B.F or Cooper,

advertising a “good time” in a “more upscale atmosphere.” Cost was

listed by time. Some offered a “two-girl special” and represented the

poster of the ad’s age as “20.” Most were invoiced to Cooper under the

name “Kandy,” but some of the ads that ran from July 20 to August 5,

6 The birthday associated with that email account was Appellant’s. So was the backup

email address.
Williams — 5

2014 were invoiced to Appellant.

B.F. said Appellant would drive them in traffic to different cities

along the I-35 corridor to meet clients. Appellant set the prices

depending on which city they were in. Appellant set a goal of $600 daily

for B.F. and $800 for Cooper. B.F. corresponded with Appellant by text;

they used code to communicate about the dates. B.F. and Cooper would

stay in a hotel room while Appellant either waited in his Cadillac or stayed

in his own hotel room. The clients never saw Appellant; B.F. was never

to tell the clients she had a pimp. Cooper would either “be in the room

if the client was okay with it,” or “step outside the room and go down the

hall, but she had to stay close just in case she had a client.” “And we

would kind of swap back and forth.” B.F. testified they worked every day

except Sundays, when they would go to church to see Appellant’s father

preach.

Department of Public Safety Special Agent Shawn Hallett,

meanwhile, was looking for juvenile victims of human trafficking. He

enlisted the help of Sergeant John Elizarde, an investigator at the Texas

Attorney General’s (AG) Office. Hallett told the jury they reviewed ads

on Backpage and looked for images of possible minors, and then would

try to identify the person using phone numbers, social media, and other
Williams — 6

databases. During the investigation, they found one of the ads featuring

“Amber” and “Kandy” and believed the images depicted a minor. From

Facebook, the men concluded that “Amber” was B.F. and “Kandy” was

Amelia Cooper. B.F., they learned, was a minor, a “runaway out of

Killeen.” Using the contact information in the ad, Hallett called Cooper

and arranged a session in San Antonio. But when it was time to meet up,

Cooper did not answer her phone, so the sting could not be carried out.

Hallett next arranged a session at a hotel in Killeen for August 19,

2014. He requested the “two-girl special” for the date. Hallett was let in

the side door of the hotel by Cooper. Hallett started to follow her up the

stairwell, at which point the AG’s office took Cooper into custody. 

Elizarde found out what room the girls were working out of, and then the

two men, together with Sergeant Stormye Jackson, located B.F. in the

room and arrested her on a warrant. B.F. was “really surprised and really

overjoyed” that they’d found her. Jackson interviewed B.F., who revealed

the details of the trafficking scheme. A search of the room turned up

three phones, a receipt indicating the room was registered to Cooper,

multiple cell phones, and, in a drawer, condoms and personal lubricant.

As B.F. was being escorted out of the hotel by the agents, Appellant

drove his distinctive Cadillac into the parking lot. B.F. had a “complete
Williams — 7

meltdown”; she directed the agents’ attention to him, saying “That’s him. 

That’s Issac.”7 Appellant was arrested. Agents found thirteen gift cards

in his wallet that had been used for “hotel rooms and [Backpage] ads.”

They found, on his person, a receipt for a hotel in San Antonio, where the

trio had been just before Killeen. In his car, they found four phones, one

with a history of activity on Backpage. They also found a box of condoms

in his trunk—the same kind found in the hotel room. Texts on some of

the collected phones contained the code B.F. testified the trio used to

communicate, as well as straight-forward communications that referenced

rides and in-and-out calls. Other phones’ browser histories documented

bookings for hotels.

Appellant testified in his defense. Before Appellant testified, the

defense had laid out a theory through cross examination that B.F. and

7 B.F. testified:

And then, just as they were sitting there talking to me, I see Issac pull

up. But at first, I knew he was coming. I’d seen his car. But first, he

pulled up to the side door and then to the front entrance of the hotel. And

immediately, I start freaking out because he’s really big on not telling the

police, the feds anything about what we’re doing. He told me, “If you get

caught, deny everything because if you get caught, it’s a misdemeanor

for probation. So, if you get caught, you go to jail, I will bail you out, and

then, we’ll just keep going.” And so, when I had seen him, I told them—I

was like, “You got to move me somewhere else.” I was saying, “You got

to move me somewhere else because if he sees me, I'm going to be in

like big ass trouble.” And they were like, “Okay. We’re going to move you

somewhere else.”
Williams — 8

Cooper were in a relationship; that the scheme was B.F.’s and Cooper’s

alone; and that, but for the lack of a thorough investigation, law

enforcement would have discovered that. Appellant testified that he did

not commit any crime. He said he never had sex with B.F., “had no idea

about Backpage,” and never trafficked B.F. or Cooper. He claimed he had

no idea B.F. and Cooper had been prostituting themselves, “no suspicions

or anything like that.” He thought Cooper was out “braiding hair” and

hanging out with B.F. “They hung out a lot.” He had “no connection”

with B.F. and in fact had, early on, blocked her on Facebook because she

was coming on to him.8 When B.F. was at the apartment he shared with

Cooper, it was to hang out with Cooper. He had his own friends.

Appellant had explanations for everything. He had the gift cards in

his wallet because Cooper had just given him them because she’d come

to think B.F. had been stealing stuff from her, and she wanted them kept

safe.

9 The only reason his phone had incriminating evidence on it was

because he and Cooper had switched phones a few days before. Another

of the phones found in his car, he said, was B.F.’s boyfriend’s phone. It

8 He admitted he was “flirtatious” with her in the beginning and that he was so with girls

on social media. “I talk to girls.” He said, “I’m a guy.” But he denied meeting her on social

media. He said they met at a beauty shop where she and Cooper talked about hair.

9 The gift cards, he said, had been given to Cooper as payment for braiding hair.
Williams — 9

must have fallen out of his pocket when Appellant gave him a ride. 

Appellant said that Cooper had told him, post-arrest, that B.F. and her

boyfriend had been trying to recruit her. But “she never told me that she

prostituted or anything like that.” Asked how Cooper, his live-in girlfriend

of several years, had hidden her prostitution profession from him, he

explained that (1) he didn’t believe that she (or B.F. for that matter) had

engaged in prostitution and (2) she was a grown woman and he gave her

space to do her own thing. As an explanation for his decision to simply

stop appearing for court after his April 16, 2015 jury setting, Appellant

said he felt sad and felt betrayed, because “I’m a nice person. I don’t do

anything wrong to anybody.” 

At the close of evidence, Appellant’s counsel noted on the record

that there was an off-the-record jury charge conference. Then, he

requested lesser-included offense instructions on “trafficking, compelling

prostitution, prostitution, and . . . simple assault.” Asked whether

evidence supported those instructions, counsel said he believed “there

was in substance.” All the instructions were denied. The jury found

Appellant guilty of the charged offense and sentenced him to fifty years’

confinement.

Appeal
Williams — 10

Appellant argued on appeal that he suffered harm as a result of the

trial court’s failure to give charges on the lesser-included offenses of

human trafficking, compelling prostitution, and prostitution. The State

argued that the affirmative evidence Appellant pointed to on appeal as

raising the lesser failed to negate other evidence establishing that he

encouraged B.F. to engage in prostitution as early as December 2013

when he took her to a hotel to meet Cooper and explained to her details

of the prostitution business, took the photos that featured the pair in the

Backpage ads, and provided the transportation to meet the clients.

The court of appeals agreed that Appellant was entitled to the

lesser-included instruction on trafficking of persons.

10 First, the court

noted that, as charged in the case, the only difference between the

offenses of continuous trafficking of persons and trafficking of persons is

that the offense of continuous trafficking requires proof that a defendant,

“during a period that is 30 or more days in duration,” engaged “two or

more times in conduct that constitutes” trafficking.11 So, trafficking was

included within the proof necessary to establish the charged offense of

10 Williams, 582 S.W.3d at 628.

11 Id. at 625.
Williams — 11

continuous trafficking.12

Second, the court held that there was more than a scintilla of

evidence from which a rational jury could conclude Appellant was guilty

of only trafficking and not continuous trafficking.13 The court pointed to

the Backpage ads as evidence from which a rational jury could conclude

Appellant was compelling B.F. to commit prostitution just from July 20,

2014, to August 5, 2014.14 This is because Appellant was invoiced during

that time, but the ads placed before July 20 and after August 5, 2014

were invoiced to Cooper under the name “Kandy.”15 Also, the jury could

infer, from one of Cooper’s text messages to B.F., that before July 20th,

Cooper and B.F. were acting without his knowledge.16 That text message,

dated July 8th, stated, “Make sure Issac doesn’t see you.”17 At trial,

defense counsel argued this text message was evidence that Cooper and

B.F. were doing something they did not want Appellant to know about. 

Finally, the court noted that the jury was free to disbelieve evidence

12 Id.

13 Id. at 627.

14 Id. at 626–27.

15 Id.

16 Id. at 627.

17 Id.
Williams — 12

showing Appellant was committing the offense for a period more than

thirty days, and believe Appellant’s testimony that the reason his phone

had incriminating evidence on it was because he had swapped phones

with Cooper a few days before the arrest.

18

The court held that “because Williams preserved error by requesting

the lesser-included instruction,” it would apply the “some harm”

standard.19It then found “some harm” because the jury charge

permitted the jury to either convict Appellant of continuous trafficking or

to acquit him altogether; the jury was denied the opportunity to consider

the entire range of offenses presented by the evidence.20 The court

reversed the judgment of the trial court and remanded the cause for a

new trial.21

Petition for Discretionary Review

The State filed a petition for discretionary review, arguing that

Appellant did not preserve his request for the lesser-included offense of

trafficking because he failed to identify any evidence supporting the

18 Id. at 627–28.

19 Id. at 628.

20 Id. at 629.

21 Id.
Williams — 13

request and denied committing any offense. The State also argued that

the court of appeals erred to conclude that the lesser-included offense of

trafficking was a rational alternative to continuous trafficking and aside

from that, misapplied the Almanza “some harm” standard. We granted

review on all three issues.

As preservation of error is a systemic requirement that must be

reviewed by the courts of appeals regardless of whether the issue is

raised by the parties, our inquiry into whether Appellant preserved this

alleged error is appropriate.22 And because we find that Appellant failed

to preserve his request for the instruction on trafficking, we do not get to

the State’s arguments on the merits.

Preservation of Defensive and Defensive-Type Charges

Texas Rule of Appellate Procedure 33.1 provides that, as a

prerequisite to presenting a complaint for appellate review, the record

must show that: (1) the complaint was made to the trial court by a timely

request, objection, or motion that stated the grounds for the ruling that

the complaining party sought from the trial court with sufficient specificity

to make the trial court aware of the complaint, unless the specific

22 Ford v. State, 305 S.W.3d 530, 532–33 (Tex. Crim. App. 2009).
Williams — 14

grounds were apparent from the context; and (2) the trial court either

ruled on the request, objection, or motion, either expressly or implicitly

or, over a further complaint, refused to do so.

23

“The purpose for

requiring a timely, specific objection is twofold: (1) it informs the judge

of the basis of the objection and affords him an opportunity to rule on

it[;] and (2) it affords opposing counsel an opportunity to respond to the

complaint.”24

When it comes to jury instructions, trial courts are required to

instruct the jury on “the law applicable to the case.”

25 As we held in

Almanza v. State, if a defendant complains on appeal about an erroneous

instruction (or lack of a proper instruction) regarding an area of the law

that is considered the law applicable to the case, the objection (or lack

thereof) determines the applicable standard for assessing harm.26If a

proper objection was made at trial to an error in the jury charge,

reviewing courts determine whether the error caused the defendant some

23 TEX. R. APP. P. 33.1(a).

24 Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015).

25 See Delgado, 235 S.W.3d at 249 ( “The trial judge has an absolute sua sponte duty

to prepare a jury charge that accurately sets out the law applicable to the specific offense

charged.”).

26 See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Bluitt v. State,

137 S.W.3d 51, 53 (Tex. Crim. App. 2004).
Williams — 15

harm.27 If no objection was made, reviewing courts determine whether

the error caused the defendant egregious harm.28

But when the complained-of error is the lack of a defensive

instruction, the Almanza framework does not apply.29 As we explained in

Posey v. State, unrequested defensive instructions are still subject to

ordinary rules of procedural default.

30

 A defendant cannot complain for

the first time on appeal about the lack of a defensive instruction absent

preservation of the error.31 

Requests for lesser-included instructions, like requests for defensive

27 Almanza, 686 S.W.2d at 171.

28 Id.

29 See Posey, 966 S.W.2d at 61 (“When, under general rules of procedural default, an

appellate court holds a defendant has procedurally defaulted a particular claim by not timely

raising it in the trial court, the appellate court does not concede that ‘error’ has occurred. In

these situations, all the appellate court is saying is that it will not address the merits of a claim

raised for the first time on appeal. This is important because Almanza does not apply unless the

appellate court first finds ‘error’ in the jury charge.”); Tolbert, 306 S.W.3d at 781–82

(concluding that “there was no jury-charge ‘error’ to which Almanza's egregious harm analysis

would apply” because “the trial court had no duty to sua sponte instruct the jury on the

lesser-included offense of murder and that a jury instruction on this lesser-included offense was

not ‘applicable to the case’ absent a request by the defense for its inclusion in the jury

charge.”).

30 Posey, 966 S.W.2d at 61–62.

31 Id. at 62 (deciding that a “defensive issue” is not “applicable to the case” unless the

defendant “timely requests the issue or objects to the omission of the issue in the jury

charge”); see also Delgado, 235 S.W.3d at 250 (“It is clear that the defense may not claim error

successfully on appeal due to the omission of a lesser included offense if the defense refrained

from requesting one. Likewise, any error in the improper submission of a lesser included

instruction is waived if the defense fails to object to the instruction.”) (quoting 43 GEORGE E. DIX

& ROBERT O. DAWSON, CRIMINAL PRACTICE AND PROCEDURE § 36.50 at 201 (Supp. 2006)).
Williams — 16

instructions, “frequently depend upon trial strategy and tactics,” so they

are not considered “the law applicable to the case.”

32 Consequently, a

trial court is not obligated to instruct on them absent a request.

33 Article

36.14 provides guidance on preserving for review any exceptions or

objections to the jury charge.34It requires that the defendant either

present his objections in writing or dictate them to the court reporter.35

The objections “may embody errors claimed to have been committed in

the charge, as well as errors claimed to have been committed by

omissions therefrom or in failing to charge upon issues arising from the

facts.”36

And specific to requests for lesser-included offenses, the defendant

must point to evidence in the record that raises the lesser-included

offense. As we stated in Hall v. State, the defendant may rely on

32 Tolbert, 306 S.W.3d at 780–81.

33 Id. at 781; Mendez, 545 S.W.3d at 552 (“If the defendant fails to object to the

absence of [defense-benefitting] instructions in the jury charge, the trial court will have

committed no error at all; a trial court does not err by failing to instruct the jury on an issue

that was, by virtue of the defendant's silence, simply inapplicable to the case.”).

34 See TEX. CODE CRIM. PRO. art. 36.14 (“Compliance with the provisions of this Article is

all that is necessary to preserve, for review, the exceptions and objections presented to the

charge and any amendment or modification thereof.”).

35 Id.

36 Id.
Williams — 17

“anything more than a scintilla of evidence” in requesting an instruction,

but he is entitled to such an instruction (and the trial judge must include

such an instruction) only when the evidence establishes the lesserincluded offense as a valid, rational alternative to the charged offense.37

Thus, if a defendant requests a particular lesser-included instruction and

he sets out, on the record, the specific evidence that supports a rational

basis for rejecting the greater offense but supporting the lesser offense,38

the trial judge errs if he refuses to instruct the jury on that lesser

offense.39

But general or insufficiently specific objections do not preserve error

for appeal.40 A defendant who files or dictates a laundry-list of objections

to the charge must also specify the legal or factual reasons why he

37 Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007).

38 Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on other

grounds by Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2012) (“[I]t is not enough that the

jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must

be some evidence directly germane to the lesser-included offense for the finder of fact to

consider before an instruction on a lesser-included offense is warranted.”) (citing Skinner v.

State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)).

39 Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008) (A defendant is entitled

to a jury charge on a lesser-included offense if he meets two requirements: (1) he requests an

instruction on a lesser-included offense of the charged offense; and (2) there is “some

evidence” that, if he is guilty, he is guilty only of the lesser-included offense.); Bell v. State,

693 S.W.2d 434, 442 (Tex. Crim. App. 1985) (“If evidence from any source raises the issue of

a lesser included offense, the charge must be given.”).

40 See Mays v. State, 318 S.W.3d 368, 383 (Tex. Crim. App. 2010); Rogers v. State, 105

S.W.3d 630, 639–40 (Tex. Crim. App. 2003).
Williams — 18

believes himself entitled to such special instructions.41 This requirement

alerts the trial court, and the opposing party, of what strategic jury

instructions the party wants and why he is entitled to them.42 Again

though, under Rule 33.1, if the grounds for the instruction are obvious to

the court and opposing counsel, then error is preserved for appeal.

43

Thus, the trial judge errs only when he refuses to submit an instruction

on an actual lesser included when (1) such specific evidence is manifest,

or (2) the defendant points to the specific evidence that negates the

greater offense but supports the lesser offense.44

Application

Appellant requested the instruction of trafficking, but he did so in a

laundry-list of objections and without specifying the legal or factual

reasons he believed himself entitled to it—not on the record and not to

the satisfaction of the trial court. At the close of evidence, Appellant’s

41 Mays, 318 S.W.3d at 384.

42 Id. at 383.

43 TEX. R. APP. P. 33.1(a)(1); see Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim.

App. 2006) (“It is well established that, in order to preserve an issue for appeal, a timely

objection must be made that states the specific ground of objection, if the specific ground was

not apparent from the context. A general or imprecise objection may be sufficient to preserve

error for appeal, but only if the legal basis for the objection is obvious to the court and to

opposing counsel.”).

44 See TEX. R. APP. P. 33.1(a)(1); Hampton, 109 S.W.3d at 440–41; Flores, 245 S.W.3d

at 439.
Williams — 19

counsel noted on the record that there was an off-the-record jury charge

conference. Then, he requested lesser-included offense instructions.

TRIAL COUNSEL: In this charge, we are asking that the

lesser-includeds be placed in the charge. If we go through the

definition of the charge, there are elements that we talked

about in the informal charge conference: Human trafficking,

compelling prostitution, prostitution, and then, there was

evidence of a simple assault. So we believe that there is

sufficient evidence for the jury to look at any one of those

theories and find a lesser-included, and we ask for those

charges to be—the lesser-included— 

THE COURT: Is there—was there any evidence elicited—and

refresh my memory—that if he's guilty of any offense, he's

guilty of the lesser only and not the greater?

TRIAL COUNSEL: I believe there was in substance.

THE COURT: Do—

TRIAL COUNSEL: Okay. And then, the Court makes the

ruling. It is what it is.

THE COURT: Okay. That will be denied.

Appellant failed to point to any affirmative evidence that would

support the submission of any of the requested lesser-included offense

instructions. And, specific to the lesser of trafficking, Appellant failed to

point to the facts like those he relied on in the court of appeals: that the

Backpage ads placed before July 20, 2014 and after August 5, 2014 were

invoiced exclusively to Cooper under the name “Kandy”; that Cooper’s
Williams — 20

text message to B.F. suggested Appellant was kept in the dark; and that

one of his phones contained the history of Backpage activity because

Cooper had “merged” her phone with his. None of this specific evidence

was manifest because the defensive theory was that he did not commit

any crime.45

Rather, before the request for the lessers, the trial court had heard

Appellant testify in his defense and deny that he committed any offense

at all. Appellant argues that his complete denial of the offense of

trafficking does not, as the State would have it, automatically bar him

from receiving a lesser-included offense instruction.46

But we are not addressing whether the instruction is warranted by

evidence at trial. We are addressing, in the first instance, whether the

grounds for the request would have been obvious to the trial court so that

any error in failing to give the instruction was preserved for appeal. And

they would not have been so here. The trial court asked whether there

was evidence that negated the greater offense. Counsel’s response, “I

believe there was in substance[,]” failed to direct the trial court to specific

45 See Saunders v. State, 840 S.W.2d 390, 391–92 (Tex. Crim. App. 1992) (denial by

the defendant of the commission of the offense did not raise the issue of a lesser-included

offense).

46 Brief for Appellant at 22–23.
Williams — 21

evidence justifying the jury instruction. And, as the trial court started to

ask another question, counsel cut the court off, saying, “Okay. And then,

the Court makes the ruling. It is what it is.” Because the evidence

supporting trafficking as a rational alternative to the charged offense was

not obvious, and Appellant failed to point to it, the trial court, reversed

on appeal, was classically “sand-bagged.”47 The reason the

contemporaneous objection rule exists is to give the trial judge an

opportunity to make a given ruling and to get it right.

48

Perhaps at the charge conference Appellant provided more clarity

regarding his requests for jury instructions on lesser-included offenses. 

But the appealing party carries the burden to ensure that the record on

appeal is sufficient to resolve the issues presented.49 The record in this

case does not contain a bill of exception providing the substance of the

47 See Mays, 318 S.W.3d at 383 (“The purpose of the Posey rule [requiring a party to

preserve a challenge to the trial court’s instructions on a defensive issue by making a timely

request or objection] is to prevent the party from ‘sandbagging’ the trial judge by failing to

apprise him, and the opposing party, of what defensive jury instructions the party wants and

why he is entitled to them.”).

48 See Ex parte Medellin, 280 S.W.3d 854, 860 (Tex. Crim. App. 2008) (“[A] a

contemporaneous objection permits the trial judge to remedy potential error before it occurs.”).

49 London v. State, 490 S.W.3d 503, 508 (Tex. Crim. App. 2016); Word v. State, 206

S.W.3d 646, 651–52 (Tex. Crim. App. 2006). See also United States v. Redd, 355 F.3d 866,

873–75 (5th Cir. 2003) (finding defendant failed to properly object to the jury instructions on

attempt and the impossibility defense, where charge conference was held in chambers and offthe-record; objections “could meet the specificity requirement only by incorporating the

referred-to discussion in chambers”).
Williams — 22

off-the-record charge conference.50 Nor is the substance of it somehow

otherwise reflected in the record.51 

Minus the benefit of any off-the-record argument, Appellant’s

justification for the instruction on trafficking was that evidence “in

substance” raised it. Such an objection does not meet the specificity

requirements of Rule 33.1 or Article 36.14.52 Appellant, under the

discrete facts here, has failed to preserve error because he failed to

specify what facts or legal theory would support submission of the lesser

of trafficking and that theory was not otherwise obvious.53

50 TEX. R. APP. P. 33.2 (“To complain on appeal about a matter that would not otherwise

appear in the record, a party must file a formal bill of exception.”); Cf. Haygood v. State, 127

S.W.3d 805, 811 (Tex. App.—San Antonio 2003, pet. ref’d) (“At 1:25 p.m. the hearing

reconvened on the record, in the presence of the State, defense counsel, and defendant.

Defense counsel asked that a bill of exception be made about previous discussions held off the

record about the medical records.”).

51 Cf. Gomez v. State, 552 S.W.3d 422, 427–28 (Tex. App.—Fort Worth 2018, no pet.)

(“Although there is no objection in the record to Officer McCraw’s statement, immediately

following the statement, Appellant’s counsel requested a bench conference. The conference that

followed was held off the record, but judging from the trial court’s statements and questions

of Officer McCraw immediately afterward, the trial court understood Appellant’s objection as

relating to inadmissible evidence of extraneous offenses. This is also the argument Appellant

puts forth on appeal, and the State does not dispute that this was the concern expressed by

Appellant during the conference.”).

52 TEX. R. APP. P. 33.1(a)(1)(A) (requiring a statement of the grounds for the ruling

sought “with sufficient specificity” to make the trial court aware of the complaint, unless the

specific grounds are apparent); TEX. CRIM. PROC. art. 36.14 (defendant or counsel “shall present

his objections thereto in writing, distinctly specifying each ground of objection.”).

53 See Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (“As regards

specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial

judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for

the judge to understand him at a time when the trial court is in a proper position to do

something about it.”).
Williams — 23

Conclusion

Appellant let the trial court know what he wanted: an instruction

on the offense of trafficking. But he did not let the trial court

know—when asked to do so—why he thought he was entitled to it.

54

Appellant did not point to evidence that would support a valid, rational

alternative to the greater offense. We reverse the judgment of the court

of appeals and remand the case for consideration of Appellant’s other

points of error raised there and not addressed.

Delivered: May 26, 2021

Publish

54 See Layton v. State, 280 S.W.3d 235, 238–39 (Tex. Crim. App. 2009).