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Perez v. Lopez3/7/2002
rsible error. Issue No. Three is overruled.
2. Jury Instruction Error
In Issue No. Four, Appellant contends that the trial court erred in refusing to tender his requested negligence per se instruction. Appellees maintain that the requested instruction did not apply to this case. We agree.
We review the court's charge under an abuse of discretion standard. See Texas Dep't of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). The trial court's failure to submit a requested instruction will constitute reversible error if the failure probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1); Sanchez v. King, 932 S.W.2d 177, 182 (Tex. App.--El Paso 1996, no writ). Rule 273 provides that either party may present to the court and request written questions, definitions, and instructions to be given to the jury, and the court may give them or a part thereof, or may refuse to give them, as may be proper. See Tex. R. Civ. P. 273. The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict. See Tex. R. Civ. P. 277. Furthermore, the court shall submit the questions, instructions, and definitions that are raised by the written pleadings and the evidence. See Tex. R. Civ. P. 278; Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). An instruction is proper only if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence. See McReynolds v. First Office Management, 948 S.W.2d 342, 344 (Tex. App.--Dallas 1997, no writ). The trial court has considerable discretion in submitting explanatory instructions and definitions to enable the jury to render a verdict. See Mobil Chemical Co. v. Bell, 517 S.W.2d 245, 256 (Tex. 1974).
Appellant sought to have the jury instructed on negligence per se as a result of Appellees' violation of Texas Penal Code Sections 46.01(3) and 46.06(a)(2). See Tex. Pen. Code Ann. §§ 46.01, 46.06 (Vernon 1994). Section 46.06(a)(2) provides:
(a) A person commits an offense if the person:
(2) intentionally or knowingly sells, rents, leases, or gives or offers to sell, rent, lease, or give to any child younger than 18 years any firearm, club, or illegal knife; Tex. Pen. Code Ann. § 46.06(a)(2) (Vernon 1994).
A firearm is defined as follows:
any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning substance or any device readily convertible to that use. Tex. Pen. Code Ann. § 46.01(3) (Vernon 1994).
Appellant asserts that Albert was a child under the age of eighteen and falls within the class of persons intended to be protected by the statute. Appellant argues that because he proved a violation of the statute, that the rifle would not fire with the trigger lock in place, but was capable of firing a bullet or projectile after Appellees removed the trigger lock, and because Appellees knew Albert was under the age of eighteen, the trial court erred in refusing to submit the instruction. Appellant provides no authority to support this contention and we are unaware of any.
Nonetheless, the Texas Supreme Court has held that not every penal statute creates an appropriate standard of care for civil liability purposes; therefore, a court is not required to adopt the penal statute's standard. See Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997) (citing Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979); Rudes v. Gottschalk, 159 Tex. 552, 324 S.W.2d 201, 204 (1959)). Thus, we fail to find that the trial court acted without reference to any guiding rules and prin
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