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                                 MEMORANDUM OPINION

                                         No. 04-09-00550-CV

                                      Guadalupe YZAGUIRRE,
                                             Appellant

                                                  v.

      UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,
                               Appellee

                      From the 166th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2004-CI-17261
                              Honorable Martha Tanner, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 7, 2010

AFFIRMED

           Appellant Guadalupe Yzaguirre sued appellee University of Texas Health Science Center at

San Antonio under the Texas Labor Code for age discrimination, gender discrimination, and

retaliation. After a jury trial on the merits, the jury answered “No” to each theory of liability, and

the trial court rendered judgment in favor of appellee. On appeal, appellant asserts the trial court

erred in denying his requested jury instruction pertaining to his opposition to “unlawful employment

practices.” We affirm.
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                                            DISCUSSION

        In his sole issue on appeal, appellant argues his proposed jury instruction should have been

included in the jury charge because, according to appellant, he submitted a written proposed jury

instruction and formally objected on the record to the trial court’s denial of the instruction. His

written proposed instruction, however, does not appear anywhere in the record. In any event,

appellant asserts that the language of the proposed jury instruction can be ascertained within the

context of his formal objections on the record—that is, his oral objections to the trial court.

        Texas Rule of Civil Procedure 278 requires a party to request and tender to the trial court a

substantially correct instruction in writing when the trial court omits a requested instruction from the

jury charge. TEX . R. CIV . P. 278; Medistar Corp. v. Schmidt, 267 S.W.3d 150, 159 (Tex. App.—San

Antonio 2008, pet. denied). Merely dictating a requested instruction to the court reporter is not

sufficient to support an appeal based on the trial court’s refusal to submit the instruction. Hartnett

v. Hampton Inns, Inc., 870 S.W.2d 162, 165 (Tex. App.—San Antonio 1993, writ denied). If a party

fails to tender a substantially correct instruction in writing, any error by the trial court in not

submitting the instruction to the jury is waived. Medistar Corp., 267 S.W.3d at 159; Hartnett, 870

S.W.2d at 166.

        Here, even if we assume appellant tendered to the trial court a proposed jury instruction in

writing, we are unable to determine whether the proposed instruction amounts to a substantially

correct instruction: the requested instruction is not contained in the clerk’s record, nor is it attached

to appellant’s motion for new trial. Second, if dictating to the court reporter a requested instruction

is insufficient to preserve error, see Hartnett, 870 S.W.2d at 165, then attempting to ascertain the

language of the proposed instruction based on a reading of the transcript of appellant’s objections


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to the trial court is also insufficient to preserve error. In sum, the record does not reflect that

appellant submitted to the court in writing a substantially correct jury instruction. Therefore, we

conclude appellant has waived any error regarding his requested instruction.

                                        CONCLUSION

       We affirm the trial court’s judgment.



                                                      Sandee Bryan Marion, Justice




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