950 S.W.2d 121, 132 (Tex.App.-El Paso 1997, no pet.); Ulloa v. State, 901 S.W.2d 507, 510 (Tex.App.-El Paso 1995, no pet.); Castaneda v. State, 852 S.W.2d 291, 294-95 (Tex.App.-San Antonio 1993, no pet.). A waiver of a “right” is distinguished from a waiver of an “error.” Until there is a timely request for the instruction the constitutional right to the instruction does not arise. Only if there is a timely request for the instruction and the trial court refuses the request does error occur. Whether to request a “no adverse inferences” jury instruction is within the tactical discretion of the defense counsel. Gomez-Olivas, 897 F.2d at 502; Henson v. State, 734 S.W.2d 119, 120 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). Cf. Posey v. State, 966 S.W.2d 57, 62-63 (Tex.Crim.App.1998) (<HOLDING>); see also 43A George E. Dix & Robert O.
holding defensive issues not applicable to the case within article 3614 of code of criminal procedure unless and until defense counsel raises issue by requesting jury instruction on issue holding that criminal defendant was not entitled to a jury trial on the issue of restitution under the oregon vehicle code holding that issue of inadequate jury instruction was waived because the instruction given was the one expressly requested by defense counsel holding previous case when no one challenged the issue could not be precedent on the issue holding a prior case was not precedent on an issue when the issue was not contested