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Ten Tips On Texas Jury Charges

Discover 10 essential tips on Texas jury charges at the 44th Annual Advanced Criminal Law Course. Learn how to create effective charges to win your case.

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Ten Tips On Texas Jury Charges

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  1. Ten TipsOn Texas Jury Charges 44th Annual Advanced Criminal Law Course State Bar Of Texas Grand Hyatt Hotel San Antonio, Texas July 25, 2018 Mark Stevens 310 S. St. Mary’s St., Suite 1920 San Antonio, TX 78205 210-226-1433 mark@markstevenslaw.com

  2. Who has the time for it? • The charge is a bunch of legal mumbo-jumbo, incomprehensible to the average juror. • Besides, your final arguments are always so compelling, they are certain to win the case for you. • The judge will be sure to give you everything you need, even if you don’t request it. • You won’t be able to change the judge’s mind, even if you have a case right on point. • Cases are never reversed on appeal for jury charge error. • You don’t need reversible error, since you have never lost a case in the trial court. 7 reasons why no one in this room needs to worry about the jury charge:

  3. 10 Tips on Texas Jury Charges Return to Planet Earth You need a good jury charge to win. So get one.

  4. 1.Good Sources Are Essential Form Books • Texas Criminal Jury Charges, Berry, Gallagher, (“McClung’s”) • Texas Practice, Volumes 7, 7a, & 8, Blackwell, McCormick, & Blackwell • Texas Criminal Pattern Jury Charges, State Bar of Texas; http://texasbarbooks.net/texas-pattern-jury-charges/ Track Down the Charge Writer

  5. 1.Good Sources, Yes; But Not Really Biblical • The form books are not infallible. • The form books are not comprehensive. • You can sometimes do better by ignoring the forms. • Let the Judge speak first.

  6. “Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer to or allude to the fact throughout your deliberations or take it into consideration for any purpose whatsoever.” “In this case the defendant has elected not to testify, and you are instructed that you cannot and must not refer to or allude to the fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.” 1.Good, But Not Biblical

  7. 2.Object If You Don’t Get The Charge You Want • Object, in writing, distinctly specifying each ground of objection. Tex. Code Crim. Proc. Ann. arts. 36.14 & 36.15. • “in writing” • Dictated, in the presence of court and prosecutor • Special Requested Jury Instructions. • Stone v. State, 703 S.W. 2d 652 (Tex. Crim. App. 1986)

  8. Special Requested Jury Instruction • Mims v. State, 3 S.W.3d 923, 928 (Tex. Crim. App. 1999) • “if raised by the evidence, the sudden passion issue should be submitted in the punishment phase of an attempted murder prosecution.”

  9. 2.Object If You Don’t Get The Charge You Want • Object, in writing, distinctly specifying each ground of objection. Tex. Code Crim. Proc. Ann. arts. 36.14 & 36.15. • “in writing” • Dictated, in the presence of court and prosecutor • Special Requested Jury Instructions. • Stone v. State, 703 S.W. 2d 652 (Tex. Crim. App. 1986) • Limiting Instructions. Tex. R. Evid. 105(a)

  10. Limiting Instructions Tex. R. Evid. 105(a) If the court admits evidence that is admissible against a party or for a purpose--but not against another party or for another purpose--the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly. e.g., Extraneous offenses “you may use that evidence . . . but only if you find from the evidence beyond a reasonable doubt that the defendant committed such other offense . . . [and if you do have a reasonable doubt] you will wholly disregard the evidence”

  11. Object, in writing, distinctly specifying each ground of objection. Tex. Code Crim. Proc. Ann. arts. 36.14 & 36.15. • “in writing” • Dictated, in the presence of court and prosecutor • Special Requested Jury Instructions. • Stone v. State, 703 S.W. 2d 652 (Tex. Crim. App. 1986) • Limiting Instructions. Tex. R. Evid. 105(a) • Rankin v. State, 974 S.W. 2d 707, 712 (Tex. Crim. App. 1996)(contemporaneously) • Hammock v. State, 46 S.W.3d 889, 894-95 (Tex. Crim. App. 2001)(waiver). • Informal charge conferences are okay, but things must get formal before it’s over. • Don’t be forced into objecting prematurely.

  12. 3.Some Good Charge Objections Commenting On The Weight Of Evidence • “not expressing any opinion as to the weight of the evidence.” Tex. Code Crim. Proc. Ann. art. 36.14. • Bartlett v. State, 270 S.W. 3d 147 (Tex. Crim. App. 2009)(generally error to single out evidence). • Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012)(error to define “operate” in DWI charge) • McClory v. State, 510 S.W.2d 932, 933 (Tex. Crim. App. 1974)(“'THE COURT: He didn't say I did; he said I didn't. Overruled.”) Useful Default Objection • Default objection.

  13. 3.Some Good Charge Objections Distinct Application Of Law To Facts • The charge must “distinctly set[] forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14. • The law, not the facts. • Daniell v. State, 848 S.W. 2d 145 (Tex. Crim. App. 1993) • Court unaware of any local correctional facilities. • “This instruction was not of a legal nature, but was a factual matter.”

  14. 3.Some Good Charge Objections Result vs. Nature Of Conduct • Intentionally: “A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.” • Alvarado v. State, 704 S.W. 2d 36 (Tex. Crim. App. 1985) • Injury to a child is a result-oriented crime. • Trial court erred when it instructed the jury it could convict defendant for the result, as well as the nature, of his conduct.

  15. 4.Arguing Hard To The Court Without The Instruction, You Lose • Murder/Self Defense • Lesser Included Offenses • Accomplice Witness • Written Special Requested Jury Instruction • Case Law • McClungs • Remember the well-known legal principle:

  16. “a defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence, regardless of whether it is strong, feeble, unimpeached, or contradicted, and even if the trial court is of the opinion the testimony is not entitled to belief.” Sanders v. State, 707 S.W. 2d 78, 80 (Tex. Crim. App. 1986)

  17. 4. Arguing Hard Lesser Included Offenses • First, the lesser included offense must be included within the proof necessary to establish the offense charged. • Second, there must be some evidence in the record that if the defendant is guilty, he is guilty of only the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981) Cognate pleading approach compares the elements of the offense as alleged in charging instrument with the elements of the potential lesser-included offense. Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007) • State v. T.P. • State v. T.C.

  18. 4.Arguing Hard The accomplice witness rule. Tex. Code Crim. Proc. Ann. art. 38.14 A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. as a matter of law vs. as a matter of fact

  19. 5.Arguing Soft When The Issue Will Impress The Appellate Court More Than The Jury • E.g, The crime is a result-oriented crime. • Make a timely, specific objection. • Orally. • No case law necessary. • Shut up. • If convicted, give notice of appeal.

  20. 6.Make Sure You Have Enough Time To ReadThe Court’s Proposed Charge • You are entitled to a “reasonable time” to examine the charge. Tex. Code Crim. Proc. Ann. art. 36.14 • Get a head start. • Insist on taking the time necessary to read the charge. • Take nothing for granted. • Presumption of Innocence • Not Guilty verdict form Jennings v. State, 2010 WL 2244108, at *2 (Tex. App.–Amarillo 2010, pet. ref’d)

  21. 7.Argue The Charge To The Jury As Judge Harle says in his charge. . . It’s not me. Judge Valenzuela tells you that . . .

  22. Charge Of The Court “The law does not require a defendant to prove her innocence or produce any evidence at all.” “The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.”

  23. Let the Judge speak first. “The presumption of innocence alone is sufficient to acquit the Defendant.”

  24. 8.Fundamental Error Lives • Tex. R. Evid. 103(d): “In a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.” • Not! • Reality: If you don’t object at trial, you lose. • if you object, you need only show “some harm.” • if you don’t object, the error must have caused “egregious harm.” But See Almanza v. State, 686 S.W. 2d 157 (Tex. Crim. App. 1984) Object!

  25. 9. Unanimity[The Hottest Jury Instruction Issue Going] • Tex. Const. Art. V, §13 • Tex. Code Crim. Proc. Ann. art. 36.29(a) • U.S. Const. Amend. VI? • Apodaca v. Oregon, 406 U.S. 404, 411-412 (1972)(no right to unanimous verdict in state court under Sixth Amendment) • McDonald v. City of Chicago, 561 U.S. 742, 766 n.14 (2010)(Apodaca is “not an endorsement of the two-track approach to incorporation”)

  26. 9. What is the test for unanimity? • “moral equivalency” • Jefferson v. State, 189 S.W.3d 305, 313 • (Tex. Crim. App. 2006) • focus or gravamen test • Huffman v. State, 267 S.W.3d 902, 907 • (Tex. Crim. App. 2008 • “eighth-grade grammar test” • Landrian v. State, 268 S.W.3d 532, 537 • (Tex. Crim. App. 2008) • “eighth-grade grammar’ approach . . . will not necessarily work invariably” • Leza v. State, 351 S.W.3d 344, 357 • (Tex. Crim. App. 2011)

  27. Cosio v. State, 353 S.W.3d 766, 771–72 (Tex. Crim. App. 2011) (1) the State presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed. (2) the State charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions. (3) the State charges one offense and presents evidence of an offense, committed at a different time, that violated a different provision of the same criminal statute. 9. Non-unanimity may occur when:

  28. 9. Unanimity • The case law on unanimity is far from clear. • Young v. State, 341 S.W.3d 417, 422-23 • (Tex. Crim. App. 2011) • “jury must unanimously agree about the occurrence of a single criminal offense, but they need not be unanimous about the specific manner and means of how that offense was committed.” • “This rule is not as clear as it might seem at first blush, however, as we continue to address questions over precisely what it is the jury must unanimously agree on.”

  29. 9. Unanimity. A few good cases for the defense • Saenz v. State, 451 S.W. 3d 388 (Tex. Crim. App. 2014)(in capital murder for killing more than one person, jury must be unanimous as to the identities and numbers of each of the victims). • Cosio v. State, 353 S.W.3d 766, 771–72 (Tex. Crim. App. 2011)(aggravated sexual assault and indecency with a child; error was harmless). • Pizzo v. State, 235 S.W. 3d 711 (Tex. Crim. App. 2007) (indecency by touching breasts & genitals). • Stuhler v. State, 218 S.W. 3d 706 (Tex. Crim. App. 2006) (injury to a child by causing serious bodily injury and serious mental deficiency) • Ngo v. State, 175 S.W. 3d 738, 744 (Tex. Crim. App. 2005) (stealing a credit card; receiving a stolen credit card; presenting a stolen credit card). • Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000)(breast-touching and the genital-touching).

  30. 10.Don’t Wait To The Last MinuteTo Work On The Charge It is Thursday night, you have just spent all week in trial, and you just want to have a beer and think about your argument. Or several beers. Atticus Finch presenting his legendary special requested jury charge.

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