Added Nuance Isn’t Charge-Error Waiver

The supreme court recently reversed a court of appeals’ (not Dallas) conclusion about waiver of charge error, holding:

At the charge conference, defense counsel objected to the use of the federal regulations’ definitions at all, arguing that the trial court should have used the Texas Pattern Jury Charge instead. Counsel alternatively objected to the specific application of the federal regulations’ definitions to Omega. …

Petitioners’arguments on appeal are more nuanced than at the charge conference, but the upshot is the same: the jury charge should have used the common-law definitions from the Pattern Jury Charge, not the federal regulations’ definitions. … 

Petitioners repeatedly made similar arguments both before and after the charge conference, using common-law considerations (not the federal regulations’ definitions) to argue that no defendants, and certainly not all, were Mr. Lozano’s employer. Their answer to the Lozanos’ petition also stated that Mr. Lozano was not their employee. This sufficiently put the trial court on notice of the objection.

JNM Express, LLC v. Lozano, No. 21-0853 (Tex. April 19, 2024) (footnotes omitted). (The graphic was provided by DALL-E, asked to illustrate the concept of an argument becoming “more nuanced” from trial to appeal, wihch apparently involves a transition from printed documents to a tablet.)