With no explanation, chose the best option from "A", "B", "C" or "D". 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.

A: holding that criminal defendant was not entitled to a jury trial on the issue of restitution under the oregon vehicle code
B: holding that issue of inadequate jury instruction was waived because the instruction given was the one expressly requested by defense counsel
C: 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
D: holding previous case when no one challenged the issue could not be precedent on the issue
C.