The last words a jury hears before deliberations

By Zack Wavrusa
Assistant County & District Attorney in Rusk County

My ideal job is one where my only responsibility would be conducting jury trials. I would like nothing more than to dispose of the tedium of intake, plea negotiations, docket call, and the like. As stressful and exhausting as they might sometimes be, jury trials are by far the most rewarding part of being a prosecutor. I am especially fond of closing arguments. They provide attorneys with a stage unlike any other. It is exceptionally gratifying to deliver a powerful closing argument—our sole opportunity to explain to the jury what a just verdict is, based on the law and evidence presented to them.

            Successful closing arguments, like everything else in this profession, require careful preparation, planning, and strategy. The importance of closing arguments cannot be overstated. All of the work that attorneys put into a jury trial culminates in closing argument. For that reason, it is vitally important for prosecutors to make the most of that opportunity. Prosecutors owe it to themselves and crime victims to understand everything that can and cannot be done at close. The underlying principles of closing argument remain the same, regardless of the given facts or offense alleged.

            That said, closing arguments are more art than science. Two prosecutors could start with the exact same case, do a brilliant job with it, and still end up with markedly different closing arguments. To really have an in-depth discussion of closing arguments, let’s take a fact scenario and talk about one direction closing argument could take. 

Case scenario

Let’s say that Danny Defendant, who was honorably discharged from the United States Army and declared 100-percent disabled because of post-traumatic stress disorder (PTSD), spent an evening drinking heavily. His pregnant wife, Sally Jo, had driven him to a bar at his request and later called police when her husband threatened to kill himself. Danny shot at the responding officer, Deputy Dudley. The deputy was not injured, and after backup arrived, officers were able to take Danny Defendant into custody. Inside the trailer, sheriff’s officers found that one bedroom was in the process of being decorated as a nursery, plus several empty alcohol and wine bottles, a wide variety of firearms, ammunition, and Tannerite, a low-grade explosive often used by marksmen as a target for long-range shooting practice.

            The defendant is indicted for the first-degree felony of Aggravated Assault on a Public Servant. The case is called for trial approximately 15 months after the offense because of a delay to evaluate the defendant after his attorney files a notice to raise the insanity defense.

The trial

In her opening statement, defense counsel does not deny that her client fired the rifle at Deputy Dudley, but she insists that he suffered from PTSD, and as a result of that mental disease, was incapable of knowing the difference between right and wrong. Therefore, the jury should find him not guilty of aggravated assault.

            The defense’s first witness is a well-qualified forensic psychologist, who testifies that it is his professional opinion that the defendant’s PTSD impacted his ability to distinguish between right and wrong in this case. On cross-examination, you discuss the role the defendant’s voluntary intoxication played in his behavior on the night in question, and eventually the psychologist clarifies that he believes the defendant’s inability to distinguish from right and wrong was due to his PTSD as well as his voluntary intoxication.

            The defendant testifies next. He didn’t know how much time passed before he heard a vehicle making its way down the driveway, and he was convinced whoever was in the vehicle was there to kill him—he had to kill that person or he himself would be killed. He expresses remorse at learning the person he shot at was a law enforcement officer because he has a lot of respect for law enforcement and the services they provide society.

            On cross-examination, the defendant admits to drinking heavily for several hours before the shooting. He was drunk even by his own rather high standards, he says. He tells the jury that he did not know where his wife was at the time of the shooting but admitted that her car was not in the driveway and that for all he knew at the time, he could have been firing into her vehicle instead of the deputy’s.

            After the defendant’s testimony, the defense rests its case in chief. In rebuttal, you call the State’s own forensic psychologist, who concurred in the PTSD diagnosis but also stated that defendant’s behavior on the night in question was not caused by his PTSD but rather by his voluntary intoxication.

The charge

At the charging conference, the judge:
            •          denies defense counsel’s request for an instruction on not guilty by reason of insanity (NGRI), saying that the psychologist most favorable to the defense said that it was the combination of PTSD and alcohol, not PTSD alone, that led to the defendant’s actions;
            •          includes the definition of intoxication;
            •          includes an instruction that voluntary intoxication is not a defense;
            •          does not include an instruction on deadly force in defense of property; and
            •          includes the lesser-included of aggravated assault with a deadly weapon, per the defense’s request.

            With evidence complete and the charge of the court read to the jury, it’s finally show time. So … what are we allowed to say in closing argument? What are we prohibited from saying? How should we organize it? Is there a strategic element to closing argument?

What can I talk about?

The Court of Criminal Appeals has held that there are four permissible areas of jury argument:
            1) summation of the evidence;
            2) reasonable deductions from the evidence;
            3) answering the argument of opposing counsel; and
            4) pleas for law enforcement.[1]

This rule may seem restrictive at first glance but, in reality, Texas attorneys are given considerable latitude when it comes to delivering their closing arguments.

            One of closing argument’s true challenges is strategically organizing everything you can talk about into an effective “first” close and “second” close. (“Second” close is the one that occurs after defense counsel makes its single closing argument.) There are 254 counties in Texas, and while there aren’t quite as many ways to organize the closing argument in any given case, there are a lot. When deciding what to talk about where, consider the following questions, to name a few:
            1) Will I be splitting the closing argument with co-counsel or flying solo?
            2) Have I kept all the promises I made in opening statement?
            3) Is there a confusing part of the law I need to spend time explaining? and
            4) What will be the defense’s strategy in closing argument?

            After you have thought about those questions a bit, you have to figure out what to talk about in first close and what to save for second close. This decision will vary from case to case, but if you are looking for a jumping-off point for your close, my general approach is as follows:

First close

When it comes to first close, it is important to remember that defense counsel will deliver its closing argument after you. If you put yourself out on a limb in first close, a skilled defense attorney will find a way to make that limb break. For that reason, I generally treat this as the more conservative of the two halves of closing argument—that is, this is when I summarize the evidence and discuss the straightforward deductions that can be drawn from that evidence. Again, one of my goals with first close is to not provide defense counsel with additional ammunition to use against me.

            After discussing the evidence and the most difficult-to-refute deductions from that evidence, I will discuss the portions of the court’s charge that I believe are the most important. When possible, I discuss all necessary elements of the charge in first close. Discussing the charge tends to be one of the drier things in closing arguments, and I don’t want the second close to lose any of its momentum or drama because of Penal Code definitions or elements of a defense eating up precious minutes.

            After I discuss the evidence, deductions, and charge of the court, I return to the theme of my case before retaking my place at counsel table. Ending first close with your theme will provide a lot more momentum than if you end with a dry explanation of the court’s charge.

Second close

This is where you really pull out all the stops. It is last thing jurors will hear before retiring to the jury room for deliberations, and prosecutors need to make it count.

            It can be very tempting to start the second close by responding to defense counsel’s argument. Sitting quietly at counsel table while the defense delivers closing argument can be excruciating. Many prosecutors’ gut instinct is to come out swinging against the defensive theory, but I strongly encourage you to stick to your own case theory in the opening moments of second close. The State’s case theory is what you told the jury the evidence would show in opening statements, and it’s what you argued to the jury in first close. Your case theory is correct. It is the truth. And there is nothing the defense will have said during its closing argument to change that. If the first thing the jury hears out of your mouth in second close is a response to the defensive theory, you are telling the jury that the defense’s closing argument was meaningful and you are worried about what the defense attorney had to say.

            Begin second close with the State’s theory of the case. You don’t have to repeat the summary of evidence that happened in first close, but do touch on the critical facts of the case again. Don’t be afraid to come at a fact from a different angle. Tell the story from another witness’s perspective if you can do so persuasively. While you are telling your story again, discuss the reasonable deductions from the evidence that you held back from first close. Now that the defense attorney has completed her closing argument, you don’t have to worry about her taking some deduction you make to the extreme and turning your own words against you.

            After you have spent at least a little time telling your story again, feel free to move into your response to the defense’s argument. The defense attorney will almost certainly have addressed your theory of the case in her closing, so jurors will be expecting you to do the same with your closing—don’t disappoint them.

            Finally, I encourage you to end your closing argument with a plea for law enforcement (described in detail later in this article). It’s one of the most powerful tools in a prosecutor’s toolbox, and it should be a part of every closing argument.

            Once you have a firm grip on the flow of your closing argument, from the beginning of first close to the end of second close, it’s time to figure out just what it is that you want to say.

Summary of the evidence and reasonable deductions

Summarizing the evidence is supposed to be the easy part, right? No. How much advocating can one do when recounting the testimony of witnesses? A lot.

            Summarizing the evidence in the case needs to be much more than a recitation of each individual witnesses’ testimony. If your summary of the evidence amounts to nothing more than “Deputy Dudley said X. Then he said Y. Finally, he said Z,” jurors will be tuning out or nodding off to sleep in no time. Your summary of the evidence needs to hold jurors’ attention, and you do that by telling them a story, not reciting facts. Really, this subhead should be called “Telling Your Story.”

            Verbal storytelling is literally an ancient practice. Long before pre-historic law enforcement officers began drafting pictograph offense reports on cave walls in France, people were telling each other stories. Everybody is accustomed to oral storytelling. It transcends age, race, gender, sexual orientation, and any division you can think of. People are going to pay much closer attention to a story than they are a lecture.

            Good storytelling takes practice.[2] I strongly advise against anyone writing out his closing argument in full and simply reading it to the jury. However, writing it out fully can be helpful during the early phases of preparation and practice because it will help you transform the list of facts to which the State’s witnesses testified into a coherent story that will keep jurors’ attention. Once you perfect telling that story, boil it down to something more concise if you end up needing to consult your notes during closing.

            Let’s apply this process to the Deputy Dudley’s case.

Phase 1: Writing down the elements of the story

            Deputy Dudley told you:
            •          He was dispatched to County Road 255D in reference to a possible mental health crisis on January 1, 2018.
            •          The residence at that location was a double-wide mobile home with a back porch.
            •          He didn’t have his lights on because it’s department policy to leave them off when responding to mental health crises.
            •          He was fired upon as soon as he tried to get out of the patrol vehicle.
            •          He turned the car’s lights on and was shot at again while at the vehicle’s rear.
            •          He then turned off the patrol lights and took cover.

            Do you see how a dry recitation of facts like these might lose a juror’s interest? We don’t read books, listen to radio broadcasts, or watch TV programs that tell stories this way because it would be awful. If it would make an awful book, radio program, or television show, why would it make a good closing argument?

            Now let’s take a look at these same facts—combined with some reasonable deductions from those facts—in a story format.

Phase 2: Putting it all together

“Deputy Dudley reported to work at the Rusk County Sheriff’s Office on January 1, 2018, with the same goal that every law enforcement officer has at the beginning of every shift: make it home alive. During his shift, his radio crackled to life with a report from dispatch that Danny Defendant had threatened to kill himself. Dudley had responded to calls regarding mental health episodes before, but he never had a call end up like this one. If he had known what was in store for him as he approached the dimly lit mobile home, if he knew the trouble that sat waiting for him on that back porch, he might have turned around, dropped his car off at the sheriff’s office, and found a new way to support his wife and children. Under those circumstances, nobody would have blamed him. Unfortunately for Deputy Dudley, he didn’t have the benefit of foresight that night.

            “After pulling into Danny Defendant’s driveway, he put his patrol car into park and was immediately greeted with the thunderous crack of a .444 Marlin rifle. Deputy Dudley didn’t even have time to process what he heard before a hollow-point round—which is meant to kill a bear or an elephant—tore through the front of his patrol car.

            “Rightfully panicked, Deputy Dudley managed to switch on his overhead lights in the split second he had before taking cover behind the vehicle. No sooner had he huddled behind the right-rear corner of his car before a second boom cut its way through the cool night air. The accompanying round was closer to its intended target this time—it punched a hole in the rear passenger side door mere feet from Deputy Dudley’s head. He knew the danger he would face if he tried to creep back down the muddy driveway to escape his would-be murderer—all Deputy Dudley could do at that point was turn off the flashing lights on his car and hope that the ensuing darkness would buy him enough time for backup to arrive.”

            It goes without saying that the story in Phase 2 does a much better job explaining to the jury what happened on January 1, 2018, than the list of facts in Phase 1. You can never tell a jury to “put themselves in the victim’s shoes,”[3] but, when you utilize storytelling, like we did above, you don’t have to. Good storytelling helps the jury understand the events from the protagonist’s point of view—in this case, Deputy Dudley is the protagonist.

            Good storytelling also allows you to interject reasonable deductions from the facts in evidence in a natural way that is not easily replicated when you are simply recapping the testimony of witnesses. This is because reasonable deductions are practically a byproduct of the storytelling process. Jurors are more ready to accept the deductions when they are part of a narrative, whereas when deductions are added to a dry recitation of facts, it’s been my experience that the jury looks at them as mere speculation.[4]

            Like I alluded to earlier, good stories can be written, but good storytelling is not read. How you get from the full-fledged story of Phase 2 to something more compact and useful at trial is really a point of personal preference. Some prosecutors might use the bullet point list of facts from Phase 1 as their trial notes. Others will rely on a PowerPoint presentation to refresh their memories as they go along. Still others might create a hybrid of sorts that combines bullet points with complete sentences.[5] Finding out what method works best for you will take some time. The important thing is that you work toward delivering a closing argument that is seamless and engaging. The work we do is too important to risk losing jurors’ attention because we’re shuffling through papers or putting our heads down to read aloud.

Enhancing the story with visuals

We have all heard that “a picture is worth a thousand words.” The etymology of the phrase is murky but its meaning is pretty clear: Humans are visual creatures and we are more likely to pay attention to information if there is an accompanying visual. If you need further proof, know that Google’s search algorithm is designed to identify if there are images in articles and on web pages. It doesn’t “see” the images, but it knows they are there, and their presence determines where the article or page will appear in search results.

            Use this fact to your advantage and incorporate visuals into closing argument. Deciding what images to use can be tough and, like so much in this profession, will vary from case to case. Crime scene photos might do quite a lot to enhance your closing if the crime was violent. Be choosy, though—not every picture in evidence needs to be shown to the jury. Pick images that will make the most impact in your story. If you are trying a white-collar crime, consider including charts or graphs in closing. They will not only help the jury understand information that can oftentimes be overwhelming, but they will also identify patterns to the criminal behavior that might not be readily apparent. Audio and video clips from admitted exhibits are also great tools to enhance closing argument. Did the defendant make a particularly damning admission in the midst of the standardized field sobriety tests? Play it for the jury again. Sure, you can always tell the jury what the defendant said, but nothing beats letting the jury hear the admission straight from him. Did the victim in a domestic violence case minimize her offender’s actions when she testified at trial? Did you admit the 911 call as part of the case in chief? Play it for the jury. Let them compare the victim’s calm testimony on the witnesses stand to her excited utterances on the 911 call.

            For our hypothetical case involving Sally Jo and Danny Defendant, let’s talk about what audio or visual aids we could use to bolster our closing argument. We could certainly replay clips from Sally Jo’s 911 call to show how fearful she was that her husband would do something dangerous that night. Weigh what you stand to gain from replaying it against the possibility that it encourages the jury to look at the defendant as a mentally ill person whose disability got the better of him. Remember, the defense attorney promised them the option of a “not guilty by reason of insanity” verdict and, even though that option won’t be on their verdict form, it is likely still an idea that they will consider.

            In addition to the 911 call, there are at least two other visual tools you can use in closing argument that have little to no chance of coming back to bite you. Those are the patrol vehicle’s hood and right-rear door—the ones punctured by the defendant’s bullets. Bringing those items out before the jury again will provide a physical means of connecting them to the violence of the defendant’s crime. There is going to be a visceral quality to seeing the two damaged pieces of the car up close that simply talking about can’t replicate. As the prosecutor, you want to use the combination of your words and the two exhibits to give the jury some idea of what it must have been like for Deputy Dudley to be crouched behind his patrol car hoping that the metal would be strong enough to protect him from the defendant’s rifle shots.

Explaining and arguing the charge of the court

Before either party gets a chance to deliver closing arguments, the court will read the charge of the court (a.k.a. jury instructions) to the jurors. The charge of the court is not just an opportunity for the judge to hear his own voice—it’s a crucial part of the process.

            The charge of the court is divided into two parts: the abstract and the application paragraph. The abstract portion is where the court explains what laws are applicable to the case. This portion includes an explanation of the jurors’ role in the trial, important definitions, descriptions of what the State must prove with respect to the charged offense, and the rules for any defense that might have been raised by the evidence.

            The application portion of the charge gives the jury authorization to convict. It will lay out the elements of the offense and tell the jurors that if they find the all of those elements have been proven beyond a reasonable doubt, they must find the defendant guilty. If there is a lesser-included offense or an applicable defense, the application portion of the charge will also break those down for the jury.

            There is always, always something from the court’s charge that needs to be explained or argued to the jury. To argue the charge most effectively, familiarize yourself with the general instructions that are a part of every jury charge. These often contain matters of great importance to the jury, and you should not have to refamiliarize yourself with their contents before every closing argument. By having those general instructions committed to memory, we are freed up to focus on the instructions unique to the particular offense for which the defendant is on trial.

            What elements of the court’s charge might be important for us to discuss in Deputy Dudley’s case? From the general instructions, I would want to remind the jury of what I call the “common sense” instruction. The actual language will vary depending on whether the person preparing the charge is working off the State Bar’s Criminal Pattern Jury Charge books or one of the many alternatives. Regardless of its source, the instruction will tell the jury something akin to, “You are exclusive judges of the facts proved. You are allowed to make reasonable inferences from the facts in evidence and judge the facts through the light of common experience.” In this case, the jury will be able to convict only if they find the defendant “intentionally or knowingly” threatened serious bodily injury to Deputy Dudley. Short of a confession, the jury will always be forced to use common sense to figure out what was going through the defendant’s mind at the time of the offense. In this case, we should remind the jurors that they didn’t check their common sense at the door, and when they retire to deliberate, their common sense will tell them that the defendant firing on Deputy Dudley as soon as he exited his vehicle and again just moments later were intentional acts. Tell them that it defies reason to think that the two shots in quick succession, one striking mere feet from the deputy’s head, were the result of bad luck on the officer’s part or a mistake on the defendant’s.

            It will also be important to argue the definition of “public servant” and the accompanying presumption. Here, the court’s charge will give the statutory definition of public servant from Texas Penal Code §1.07(a)(41).[6] The aggravated assault statute also says that the defendant is presumed to have known the person assaulted was a public servant or a security officer if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant.[7] In this case, you would want to point out both the definition of public servant and the presumption. Remind jurors of the testimony you elicited on these points. Failure to persuade the jury of the “public servant” element beyond a reasonable doubt will, at best, result in the conviction of a lesser-included offense and, at worst, provide the ammunition defense-oriented jurors need to persuade their fellow jurors to acquit outright.

            Remember too, that the defense attorney made promises during her opening statement that the jury would have the option of finding the defendant not guilty by reason of insanity. In this case, an instruction on not guilty by reason of insanity was not included in the charge because there was not sufficient evidence to warrant its inclusion. We would need to make it clear to the jury that there is no instruction permitting them to find the defendant not guilty by reason of insanity. Don’t assume that they will notice its absence from the court’s instruction on their own.

            When you tell them this option isn’t available, also turn them toward the instruction that states voluntary intoxication is not a defense. Remind them of Sally Jo’s testimony that she had driven the defendant to a bar herself and argue that, being pregnant, she would have done so only because she knew her husband intended to drink to the point of intoxication and would need a sober ride home. Bolster this deduction by pointing out the investigators’ observation of empty alcohol containers strewn through the home’s kitchen. Be forceful in your assertion that the defendant’s conduct will not be excused because he chose to drink.         

Responding to defense’s argument

How you respond to the defense argument is going to depend on:
            1)         the type of offense for which the defendant is on trial,
            2)         the type of argument made by the defense attorney, and
            3)         the “persona” that you take on in the courtroom.

            The jury expects you to respond to defense counsel’s arguments, but if you choose the wrong approach, you can lose credibility with the jury and potentially lose the whole case. Think carefully about how you want to respond after taking the entire trial into account.

            The type of offense is an important consideration when deciding how to handle your response to the defense’s argument. A run-of- the-mill drug case likely requires an even-tempered, analytical approach. In that kind of case, prosecutors will want to marshal the favorable evidence they have to rebut the defense’s argument and explain how defense counsel’s claims are flawed. In a sexual assault or homicide, the prosecutor might want to aggressively refute the defense’s argument.

            In any given case, there might be a variety of arguments that a prosecutor could pursue. This fact is no different for defense attorneys, and the strategy they choose should impact how we respond to it. Sometimes, defense attorneys will heap praise on the prosecutors opposing them. They will tell the jury what a great job prosecutors did with the case but this time, they are missing something. Other times, when the trial judge allows it, defense attorneys will attack the integrity of the prosecution team and aggressively argue that some ulterior motive on the part of the victim, law enforcement, or prosecutor’s office is the driving force behind the trial. Whenever possible, I tend to fight fire with fire and reason with reason. Like everything else with closing arguments, the circumstances of each case will dictate the appropriate way to respond to defensive arguments.

            Considering the facts of our example case, one strategy would be to deliver a fiery rebuke of the defense’s argument. Defense counsel, no doubt, developed some sympathy for the defendant by accepting the blame for failing to secure a “not guilty by reason of insanity” instruction and by emphasizing the defendant’s honorable military service. However, defense counsel also completely ignored all the evidence about the defendant’s voluntary intoxication. As prosecutors, we could point out that the defendant could have spent that evening in the company of his caring wife—they could have worked on their child’s nursery, for instance. Instead, the defendant had his wife act as his chauffeur while he drank away his self-control. We could end our response to the defense’s argument by pointing out that both the defense’s psychologist and the State’s psychologist agreed that the defendant’s behavior was a result of his voluntary intoxication and that the court’s charge makes it clear that voluntary intoxication is no defense to his crime.

Plea for law enforcement

This is the single most powerful tool in the prosecutor’s toolbox. It is our way of combatting the threat of jury nullification, and it’s our chance to go beyond arguing why the evidence shows the defendant is guilty and argue why it’s important that the jury fulfill its responsibility as the trier of fact and actually find him guilty as supported by the evidence.

            A plea for law enforcement can be made in any case. During such a plea, a prosecutor can discuss the relationship between the jury’s verdict and the deterrence of crime in general.[8] Prosecutors may argue how the jury’s verdict will impact the community.[9] A prosecutor can’t argue that any particular segment of the community demands a particular verdict or punishment,[10] but we can argue about the impact of the verdict on smaller groups that make up the community.[11]

            Please remember that a plea for law enforcement does not mean a plea on behalf of law enforcement officers. Prosecutors make a plea for law enforcement when they proclaim the importance of the law and why it is necessary for the jury to apply the law as written. 

            In Deputy Dudley’s case, the prosecutor could make a plea for law enforcement in every sense. Ask the jury how officers can be expected to go into unknown, potentially dangerous situations and not receive the protections the law says they are entitled to. Argue that an acquittal on these facts amounts to a de facto endorsement that nothing is a crime if you get drunk enough first. If would-be cop killers know that a night of heavy drinking is all they need to get away with murder, then no law enforcement officer in the county will ever truly be safe. What Danny Defendant did is a serious crime with potentially grave consequences, and every single person in the courtroom is lucky that the results weren’t worse.

The last, best chance

Closing arguments are technically not evidence, but their importance cannot be overstated. Before the jury retires to deliberate, the last words they hear from any person involved in the case come from the prosecutor during closing argument. These arguments are our last chance to explain a complicated legal issue and to persuade juror who are still on the fence about the defendant’s guilt.

            Take the task of closing argument seriously. We owe it to our victims, our law enforcement officers, and our community to treat this final opportunity as seriously as we do every other phase of the trial.

Endnotes

[1]  Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992).

[2]  I was honored to be able to offer some more in-depth storytelling advice in the May–June 2019 issue of this journal. If you are looking for more storytelling inspiration, I hope you find my previous article helpful.

[3]  See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985).

[4]  Here’s an example of “recitation style”: Deputy Dudley testified that the first time he was fired upon was when he got out of his vehicle. Dudley said the second shot happened when he took cover behind the vehicle. The defendant was trying to murder him. Here are the same facts using “storytelling style”: The first shot taken at Dudley came right as he exited the vehicle. The second came as he took cover behind it and missed him by mere feet. Dudley had to act fast or the defendant’s next shot might not miss.

[5]  This third approach, a combination of bullet points and complete sentences, is the one I take. I find that as I practice my closing argument, I inevitably come up with an impactful way of telling a particular part of the story or a smooth way to transition from one important point to the next. To help remember the specific language I use, I write out the entire phrase in my notes. I’ll inevitably not look at my notes and end up saying something different, but just having it there feels like a little bit of a lifeline should I need it.

[6]  Remember to define words or phrases only when they are defined or otherwise given special meaning by statute. In most instances, it will be considered error to provide the jury with non-statutory definitions. Avoid the temptation to add to the definition as well. See Ratliff v. State, 2020 Tex. App. LEXIS 1270 (Tex. App.—Austin 2020) (finding error in trial court’s decision to charge the jury that a member of the Llano Police Department was a public servant). 

[7]  Tex. Penal Code §22.02(c).

[8]  Shippy v. State, 556 S.W.2d 246, 257 (Tex. Crim. App. 1977).

[9]  Adams v. State, 685 S.W.2d 661, 671 (Tex. Crim. App. 1985).

[10]  Cortez v. State, 683 S.W.2d 419 (Tex. Crim. App. 1984).

[11]  Rhodes v. State, 450 S.W.2d 329, 331-332 (Tex. Crim. App. 1970) (law enforcement officers); Strahan v. State, S.W.2d 626 (Tex. Crim. App. 1962) (drivers sharing the highway with drunk drivers); Carver v. State, 510 S.W.2d 349, 355-356 (Tex. Crim. App. 1974) (women and children).