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Criminal Law
March-April 2010

A wave of change in criminal jury charges

John Stride

TDCAA Senior ­Appellate Attorney

Unless you have been hibernating (completely understandable given the prolonged North Texas deep freeze this winter) you must have become aware of the rumblings surrounding criminal jury charge law. Jury charge law is changing—slowly, maybe, but surely and inexorably. A groundswell of support for this change is rippling across Texas and changing the jury charge landscape.

Over the last few years, the Court of Criminal Appeals has been turning the tide of jury charge law that, cavalierly perhaps, many of us have taken for granted. Just across the street, the State Bar of Texas’ Committee on Pattern Jury Charges has been pooling the resources of 20-odd members of the criminal justice system to generate uniform criminal jury charges. This article will detail the slow but steady sea change of criminal jury charge law.

The Court of Criminal Appeals’ contribution

The court, in an apparent move away from ad hoc legal reasoning, is actively engaged in efforts to clarify jury instructions, establish boundaries, and plant common sense and consistency. Today, the court’s opinions take a broader view and resolve the issues within a more cohesive framework. The court has specified with greater particularity when lesser-included offenses are required, has provided clarification on the scope of proper instructions, and continues to wade through the muddy waters of unanimity and election law.  This is not the place for an in-depth summary of the evolving law, but the highlights follow:

Forfeiture

  • Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007) (declining to require a sua sponte defensive limiting instruction)
  • Posey v. State, 966 S.W.2d 57 (Tex Crim. App. 1998) (instruction on defensive issue of mistake not required absent request or objection)
  • Tolbert v. State, No. PD-0265-09 Tex. Crim. App. submitted Sept. 30, 2009 (whether trial court must submit a lesser-included offense (LIO) sua sponte).

Lesser-included offenses

  • Grey v. State, No. PD-0137-09 Tex. Crim. App., 2009 LEXIS 1610 (Tex. Crim. App. Nov. 18, 2009) (establishing when a trial court must, and when it may, submit LIOs)
  • Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009) (reprising the preferred transitional language between LIOs)
  • Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007) (explaining the first step of the two-part test for LIOs).
  • Farrakhan v. State, 247 S.W.3d 720 (Tex. Crim. App. 2008) (following Hall’s two-step test for LIOs)

Comments on the weight of the evidence

  • Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008) (instruction on breath test refusal was improper)
  • Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) (denial of defense instruction on verbal threats proper)
  • Brown v. State, 122 S.W.3d 794 (Tex Crim. App. 2003) (instruction on inferring intent was improper; explaining scope of proper instructions).

Defense instructions

  • Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008) (defendant may waive mitigation issue in capital case)
  • Bufkin v. State, 207 S.W.3d 779 (Tex. Crim. App. 2006) (instruction on consent should have been given)
  • Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998) (restricting defenses to those statutorily granted).

Confession instructions

  • Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008) (establishing when various confession instructions required)
  • Vasquez v. State, 225 S.W.3d 541 (Tex. Crim. App. 2007) (similar).

Unanimity

  • Huffman v. State, 267 S.W.3d 902 (Tex. Crim. App. 2008) (disjunctive wording violated right to a unanimous verdict)
  • Pizzo v. State, 235 S.W.3d 711 (Tex. Crim. App. 2007) (explaining when unanimity required)
  • White v. State, 208 S.W.3d 467 (Tex. Crim. App. 2006) (jury unanimity not required).

Elections

  • Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006) (explaining rationale for election law)
  • Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (disjunctive submission of separate offenses violated right to unanimous verdict).

Verdict forms

Jennings v. State, No, PD-0261-09 (Tex. Crim. App. Jan. 27, 2009) (deciding that a verdict form is part of the jury charge; thus, errors governed by Almanza).

The State Bar’s ­contribution

The State Bar of Texas (SBOT) has also begun compiling a series of books on pattern jury charges for criminal cases. The criminal law versions join those in other areas, such as civil and family law. Already the first criminal law volume is available, and it includes instructions on the general charge, special instructions, intoxication offenses, controlled substances offenses, and punishment. It also offers a commentary on criminal jury charges, which provides important observations for those of us creating and using jury charges in all areas of criminal law. Annotations and caselaw are liberally included.

As devised by the SBOT committee, the format of the instructions brings clarity, understanding, and uniformity to criminal jury charges. Be warned that the changes are dramatic: Charges follow a consistent outline with clear headings, state the controlling law and definitions, and apply the law to the facts in everyday language. To assist understanding and clarify burdens, elements of offenses and defenses are broken down into numbered and lettered lists.

As stated in the introduction: “Appellate courts are unlikely to regard trial judges’  refusal to use the committee’s jury instructions as reversible error. These instructions will be used, then, only if trial judges are willing to exercise their considerable discretion to adopt them in particular cases.” As prosecutors, it is our role to seek justice, and promoting these charges is one significant way we can do that. I urge you to adopt the pattern jury charges at every opportunity. Juries should find the instructions both easier to understand and more grounded in common sense—a vast improvement over the muddled, old-fashioned legalese of many traditional criminal jury charges. Practitioners should find them much easier to use with their consistent format and greater clarity, while trial judges and court reporters should enjoy the ready access to uniform charges. Finally, appellate courts should be less surprised by the variety, confusion, and inadequacies of many present jury charges.

The committee creating the instructions is comprised of prosecutors, defense attorneys, trial and appellate judges, and law professors. Currently, Tarrant County Criminal Division Chief Alan Levy is the Chair and UT Criminal Law Professor George Dix Vice-Chair. Judge Cathy Cochran participates as the Court of Criminal Appeals Liaison. As a member of this approximately 20-person committee, I can tell you just how hard—even mind-bending—it is for the committee to resolve some of the issues that must be addressed to create pattern jury instructions. Sometimes, offering alternative instructions is the only reasonable solution. Nevertheless, for most instructions, agreement is usually achieved and a single pattern charge is born.

Future volumes of the pattern jury charges, currently in production, will cover remaining offenses and defenses. As the law changes, of course, the extant volumes will be updated. Copies of the book and electronic files are available at www .texasbarcle.com or by calling 512/ 427-1411.

Whatever the impetus for change, the Court of Criminal Appeals and the SBOT committee are plainly devoted to filtering through the primordial ooze that envelops much of past charging practice to create an up-to-date, comprehensive, coherent, practical, and effective law. It is welcome relief. Existing notions of jury charge law are being uprooted and flushed away by an advancing tidal wave and, following the receding water, fresh, more vital growth will bring brighter, stronger, more defined law. Let’s nurture the change.

A note on TDCAA’s jury charge bank

Over recent years, TDCAA has maintained a jury charge bank on its website. A group of dedicated prosecutors generated the instructions and updated them as it could. In light of the SBOT publishing pattern jury charges, however, TDCAA has suspended further work on the charge bank—at least for the scope of the SBOT’s published instructions. Nevertheless, charges for crimes between 2003 and 2007 remain online at www .tdcaa.com. Comments on how the charge-bank resource may be adapted for the future, if at all, are welcomed. Please send your suggestions to me (stride ( a t ) tdcaa ( d o t ) com) or Diane Beckham (beckham ( a t ) tdcaa ( d o t ) com).