The volume of case law available to research on jury charges is daunting. Putting together a comprehensive paper on jury charge and jury instruction case law would be a six month undertaking. Even then you’d have to leave out some really good case law. Because this body of case law is so extensive the purpose of this paper is to give you a brief overview of the jury charge and relevant case law. My hope is to give you a good starting point to begin any research you need to do prior to submitting your charge to the jury.

First things first: draft your jury charge before the start of trial. Start by reading the indictment. Figure out what has been pled against your client. Look at the offense as defined in the penal code. Then put together the charge. The charge will act as a road map for you. It will tell you where the prosecution has to go to get their proof. And it will hopefully show you where to find your reasonable doubt.
Also, try to anticipate any midtrial limiting instructions you may need to request. Think about any 404b issues that may get presented to the jury and be prepared to requested a limiting instruction on that issue.

Texas Code of Criminal Procedure Article 36.14-19

The starting point for any jury charge is Article 36.14 of the Code of Criminal Procedure (CCP) which states that the court’s charge should “distinctly set … forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury”.

No Piece of Evidence Can be Singled Out

Failure to Videotape a DWI suspect

A jury charge cannot comment on any part of the evidence, regardless of that what evidence was. In Drewett v. State, 704 S.W.2d 43 (Tex.Crim.App.,1986) involved a DWI arrest in Harris County. The trial Court instructed the jury as follows:
“You are instructed that under the laws of Texas, a county with a population of 25,000 or more is required to provide electronic devices capable of visually recording a person immediately after his arrest for the offense of driving while intoxicated. Evidence has been introduced in this case that such electronic device was not available in Harris County on January 18, 1984, and that therefore the officer failed to visually record the defendant in this case. This is no evidence that the defendant was intoxicated or was not intoxicated. In your deliberations you shall not consider for any purpose, allude to, comment on or discuss the unavailability of the recording as evidence that the defendant was or was not intoxicated. This evidence has been admitted for the sole purpose of showing, if you so find, the unavailability of a required visual recording at the time of the arrest and the reason therefor.”

The Court of Criminal Appeals held this was an impermissible comment on the evidence because the charge singled out one particular piece of testimony. Be mindful of any instruction that puts a spotlight on anyone witness or piece of evidence.

A recent case from the Court of appeals dealing with comments on evidence is Bartlett v. State 270 S.W.3d 147 (Tex. Crim. App. 2008). In Bartlett the trial court impermissibly instructed the jury that it could consider the defendant’s failure to take the breath test in its deliberations. This was held to be an impermissible comment on the weight of the evidence by the trial Court. The Court of Appeals wrote:

“By singling out that evidence, the trial court violated Articles 36.14, 38.04, and 38.05 of the Code of Criminal Procedure and committed a jury-charge error…“A judicial instruction that singles out a particular piece of evidence, but does not serve one of the legally authorized purposes set out above, risks impinging upon the ‘independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential to the preservation of their liberties.’ Even a seemingly neutral instruction may constitute an impermissible comment on the weight of the evidence because such an instruction singles out that particular piece of evidence for special attention.”

Commenting on Expert Testimony

In Russell v. State, 749 S.W.2d 77 (Tex.Crim.App.,1988) the defendant was charged with aggravated sexual abuse of a child. The defendant presented a clinical psychologist at trial who testified the Defendant was a pedophiliac and could not conform his conduct with the dictates of society. The court instructed the jury it was not bound by testimony offered by a witness qualified as expert. The court instructed the jury:

“You are instructed that you are not bound by the testimony offered by a witness qualified as an expert. You may give it the weight to which you find it is entitled and may weigh such testimony with all other evidence offered in this case.”

The Court of Criminal Appeals held this was an impermissible singling out of evidence and testimony.
When the Judge Can Single Out Testimony or Evidence in the Charge
Bartlett identified three circumstances when it is appropriate to single out evidence: 1. when the law directs the attachment of a certain amount of weight to evidence, such as accomplice witness testimony, 2. evidence admitted for a limited purpose; when the law has created a statutory presumption; and, 3. when evidence is contingent on the admissibility of certain facts that it is up to the jury to decide. Evidence not in one of these three categories should not be singled out.

Scope of the Charge

Keeping CCP 36.14 in mind, a jury instruction should be crafted by referencing the indictment and the supporting evidence admitted during the trial. Jury instructions should be restricted to the scope of the indictment. Only theories alleged in the pleadings should be given to the jury. See Wilson v. State, 625 S.W.2d 331 (Tex.Crim.App. 1981). The charge should not enlarge the scope of the pleadings. In other words, the indictment controls the scope of the charge and additional theories should not be included in the charge which were not pled or for which there is no supporting evidence. See Id.

Further, in Dowden v. State 537 S.W.2d 5, 7 (Tex. Crim. App. 1976), the jury charge included the robbery and aggravated robbery statutes in their entirety. The charge included portions that were neither pled in the indictment, nor proven at trial. The Court held this practice of blindly reciting an entire statute was wrong. In a stinging retribution of the trial court the Court of Criminal Appeals wrote:

“This practice at best is useless and at worst may confuse and mislead the jury and, therefore, prejudice a defendant. This Court in the past has had occasion to caution against the enumeration in the charge of portions of a statute that could not be relied upon for a conviction.”

The Charge Must Apply the Law to This Case

Further, it is not enough to simply recite legal platitudes in the jury charge. The purpose of the charge by a trial court must clearly apply the law to the very facts of the case. It is not simply to recite abstract propositions of law and general principles. See Atunez v. State, 647 S.W.2d 649 (Tex.Criminal App.,1983).

Ask and Ye Shall Receive: Charging on A Defensive Theory

There are numerous defensive instructions that can potentially get submitted to the jury. Entrapment, self-defense, mistake, necessity and defense of third persons are a few of the theories available. When in doubt, ask for the instruction. Remember, if evidence is introduced from any source which raises an issue on a defensive theory, the theory must, upon proper request, be included in the court’s charge. Ojeda v. State, 712 S.W.2d 742, 744 (Tex.Crim.App.1986).

The accused is entitled to an instruction on the defensive theory even if the issue was raised only by the defendant’s testimony alone. Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991); Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987). And it does not matter the evidence presented is strong, weak, unimpeached, contradicted, or unbelievable. The defendant is entitled to the instruction. Period. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993); Lugo v. State, 667 S.W.2d 144, 146 (Tex.Crim.App.1984). The reason the defendant is entitled to the instruction once it is raised, is because it is not the court’s function to determine the credibility or weight to be given the evidence raising the defensive issue in a jury trial. Gibson v. State, 726 S.W.2d 129, 132-33 (Tex.Crim.App.1987). It is the province of the jury to determine if the evidence is credible and supports the defensive theory. Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978). See also Birch v. State 948 S.W.2d 880 (Tex.App.-San Antonio,1997).

Request the defensive instruction if the issue is raised from any source, regardless of who strong the testimony or evidence may be.

Fifth Amendment and the Defendant’s Failure to Testify Instruction

We have all heard since we were eight years old about the Fifth Amendment which states “No person shall be []shall be compelled in any criminal case to be a witness against himself.”

And jury is not permitted to draw adverse inferences from the fact that the Defendant elected not testify at trial on the merits. The defendant shall have the right to have the jury instructed as such. The right to have the jury instructed not to draw adverse inferences from the election to testify carries over to the punishment phase as well. Conversely, if the defendant does elect to at the punishment phase, the jury should be instructed not draw adverse inferences from defendant’s failure to testify at the guilty/innocence stage of trial. See Beathard v. State, 767 S.W.2d 423 (Tex.Crim.App. 1989); Brown v. State, 617 S.W.2d 234 (Tex.Crim.App. 1981); Estell v. Smith, 451 U.S. 454 (1981).

Note: Some jury charges will state something to the effect of : “You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him.” I don’t like when the charges talk about a Defendant’s failure to testify. Failure suggests to me that the Defendant should have done something but did not.

I prefer to see a charge say “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.”

Entitlement to Limiting Instructions During Trial Relating to 404b

Texas Rule of Evidence 105(a) states : When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the Court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of the such request the court’s action shall not be a ground for complaint on appeal.” In other words, when evidence or testimony is admitted, the Defendant is entitled to a limiting instruction on the evidence.

In Rankin v. State, 974 S.W.2d 707 (Tex.Crim. App-1996) the court held:

“Limiting instructions given for the first time during the jury charge thus do not constitute an efficacious application of Rule 105(a) since it allows for the possibility that evidence will be used improperly in clear contravention to the purpose of the rule. Since limiting instructions operate most effectively when given simultaneously with the relevant evidence, it would not do to grant trial courts “discretion” to deliver those instructions, after they had been properly requested, at a less opportune time.”

The point of Rankin is to ask for the limiting instruction immediately. First, it preserves should the Court refuses the instruction. And secondly, it puts the testimony or evidence into context with the jury immediately. “ The purpose of … midtrial limiting instructions is to insure that the jurors realize the proper use of each bit of evidence as it comes in. Where the jurors have been accumulating their impressions of the evidence over the course of the trial, it is impossible for them to go back at the close of the trial and reassess the evidence in light of the limiting instruction, even if they could appreciate which items of evidence the instruction was supposed to apply to. These difficulties are avoided by instructions at the time of introduction of evidence received for a limited purpose. 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Evidence § 5065. See Rankin at 712.

Objecting to the Jury Charge

CCP 36.14 states “[T]he defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection…The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury. Compliance with this article is all that is necessary to preserve, for review, the exceptions and objections present to the charge…”
First, remember to take your time in reading the charge. You are allowed sufficient time read the charge and formulate your objections.

Regarding objections, in Almanza v. State, the court of criminal appeals wrote : “we have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error. If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is “calculated to injure the rights of defendant,” which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. On the other hand, if no proper objection was made at trial and the accused must claim that the error was “fundamental,” he will obtain a reversal only if the error is so egregious and created such harm that he “has not had a fair and impartial trial”-in short “egregious harm.”

In other words: When in doubt, object. It is better to be safe and preserve the error for review under a lower threshold.

Conclusion

The jury charge is fertile ground to present your defensive theories. But just as importantly, it is your opportunity to limit the charges against your client to their proper scope. Request any instructions you believe you client is entitled. Object when you think the charge includes or does not include something that is relevant. Especially any type of comment in the charge that singles out on particular witness. And request limiting instructions when necessary to keep evidence in its relevant context