March-April 2012

A year of massaging jury instructions

John Stride

TDCAA Senior Appellate Attorney

Over the last 12 months, the Court of Criminal Appeals has enlightened us more on jury instructions. In one week alone, four of its decisions addressed the subject. Given the State Bar’s recent release of its third volume of the Texas Criminal Pattern Jury Charges (adding proposed instructions on homicide, kidnapping, sexual offenses, assaultive offenses, robbery, party liability, and transferred intent), it also seems an appropriate time to consolidate the court’s musings. Lesser-included offenses have dominated the decisions with five opinions, but further opinions have been forthcoming on jury unanimity, comments on the weight of the evidence, self-defense, medical-care defense, DWI, Health and Safety Code penalty groups, the hypothetically correct jury charge, and charge harm analysis.

Lesser-included offenses

That lesser-included offenses are the most frequently reviewed criminal jury instruction topic—probably each year—indicates they have troubling aspects. During the heat of trial in our adversarial system, decisions may be rushed, perceptions too narrowed, or the law confusing. So, assuming that you do not want to retry a case for jury charge error, the submission of lesser-included offenses is often the better practice if in doubt about their applicability.

    Even a little evidence from any source will support a lesser-included offense. As the Court of Criminal Appeals has repeatedly stated: 
[T]here must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. We consider all of the evidence admitted at trial, not just the evidence presented by the defendant. The evidence must establish that the lesser-included offense is a valid, rational alternative to the charged offense. Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. However, we may not consider [t]he credibility of the evidence and whether it conflicts with other evidence or is controverted.1

    Goad, a burglary of a habitation in which the trial court denied the defendant’s request for a lesser-included offense of criminal trespass, reminds that the victim’s testimony also can provide the necessary evidence—in this case, the defendant’s lack of intent to commit burglary because, on being interrupted at the crime scene by the victim, he told the victim that he was looking for his dog. Further, for those of us who may have become a trifle cynical about suspects’ statements relating to their involvement in an offense, even the rank implausibility of the evidence is insufficient reason to deny an instruction on a lesser-included offense. Thus, the trial court should have given the requested instruction.

    If the evidence shows that a charged offense is divisible, submit a lesser-included offense. In considering the application of a lesser-included offense, beware of evidentiary twists. A hiatus in the chain of events may carve up an action charged as a single ongoing crime into more than one offense. In Sweed, after stealing a nail gun from a work site, the defendant was chased by members of the construction crew whereupon he entered an apartment.2 Minutes later, he left the residence without the nail gun and in a change of clothes. He then briefly visited with a group of people. Afterwards, he encountered some of the construction crew again, at which point he drew a knife.

    Sweed was charged with aggravated robbery but requested a lesser-included offense of theft. He did not dispute that he had committed theft; rather, the only issue was whether he pulled the knife during or in immediate flight after committing the theft. The Court of Criminal Appeals held that, because of the interval between the theft and the assault, a jury could have rationally interpreted the evidence so as to believe that the defendant was no longer fleeing from the theft when he pulled the knife. Accordingly, the trial court should have submitted the lesser-included offense.

    Lesser-included offenses of continuous sexual abuse obtain parity. As expected, the most useful novel offense of continuous sexual abuse has had to overcome numerous (mostly constitutional) challenges on appeal. In Soliz, it overcame another claim, this time in the context of lesser-included offenses.3 The case teaches that the lesser-included offense analysis for continuous sexual abuse is the same as with other offenses—there is no additional step for the jury to determine whether a submitted lesser offense is in fact a lesser-included offense.


Submitting instructions on justifications for crimes can render the propriety of giving lesser-included offenses tricky. Alonzo is a case in point.4

    Self-defense and a lesser-included offense alleging recklessness. Following a prison fight, Alonzo’s indictment charged one count of murder and a second, irrelevant count. Under the murder count, the trial court also submitted the lesser-included offenses of manslaughter and aggravated assault with a further instruction to acquit the defendant if the jury found that the defendant had acted in self-defense. In response to jury notes, however, the trial court advised that self-defense did not apply to aggravated assault if the jury found the defendant acted recklessly and did not apply to manslaughter.

    The intermediate court decided that (a) by acquitting the defendant of murder the jury had necessarily found he had not committed the act intentionally and knowingly, and (b) manslaughter requires recklessness; therefore, to allow self-defense for manslaughter would be inconsistent because a person cannot simultaneously act intentionally and recklessly. The Court of Criminal Appeals disagreed. It ruled that, although a person cannot act recklessly and in self-defense, the defendant asserted his actions were justified and not intentional or reckless. Moreover, nothing in the Penal Code restricts self-defense to acts committed intentionally or knowingly. Finally, a defendant does not have to intend the death of an attacker to be justified in using deadly force in self-defense.

    Instructions on the duty to retreat. The law on self-defense has changed and, if for the better, it is hard to comprehend how, given the convoluted statutory mess the legislature has left for practitioners to cope with. Unfortunately, though not its fault, the court’s opinion in Morales addressing the law doesn’t really assist in picking a passage through the maze.5

    After the amended law on self-defense became effective in September 2007, the defendant killed another during a fight. The murder trial testimony was conflicting and the jury charge contained instructions on defense of a third person—incorporating instructions on self-defense and the duty to retreat. Of course, the duty to retreat was a requirement of the former self-defense statute but, under the amended statute, was replaced by provisions allowing a jury to presume when deadly force was reasonable and explaining when a person does not have to retreat. The inclusion of the duty to retreat in this charge, the court held, was not authorized by statute and constituted an improper comment on the weight of the evidence. Nevertheless, while a jury instruction on the duty to retreat may not be submitted, as with instructions on diminished capacity and inferring intent from words and actions, the parties can argue about the issue if raised by the evidence.6

    Maybe the current statute will not be the last word on self-defense. We can hope, right?

    Medical-care defense. The medical-care defense of Penal Code §22.021(d) does not arise often, but a closely divided court reached it in Cornet.7

    In a pretrial statement and during his testimony, the defendant related that he had examined his 8-year-old step-daughter’s genitals and anus by spreading and touching them after she told him that her brothers had sexually assaulted her. He explained that he was looking for evidence of sexual contact, swelling, scarring, or injury. The jury charge instructed the jury on aggravated sexual assault committed by the defendant digitally penetrating his step-daughter’s genitals and orally contacting her anus. The trial court, understanding that the medical-care defense was limited to use by licensed medical professionals, denied a defensive instruction. The intermediate court, holding that there was no evidence that the defendant had admitted the offense and that the medical-care defense was not meant to apply where the parent was untrained, affirmed.

    But the Court of Criminal Appeals overrode the lower courts. It held that the defense is available to non-medical professionals who conduct mere medical inspections, the doctrine of a confession and avoidance applies, and the defense was triggered by the particular facts of the case; thus, the trial court wrongly denied the defensive instruction. Readers should understand that sufficient “confession” has occurred “if the defendant can point to defensive evidence, originating in his own statements, such that a trier of fact could reasonably infer that each element of the offense has been satisfied.” Because an inference will suffice, this is not a high threshold to obtain the defense.

Jury unanimity

If lesser-included offenses have been troubling, jury unanimity has been bewildering. Generally, in reaching a verdict, a jury must unanimously agree about the occurrence of a single criminal offense, but it need not be unanimous about the specific manner and means of how that offense was committed. But as Judge Cochran reminds us in Young, what seems clear actually requires ongoing refinement.8

    Using the definitions for culpable mental states. The current need for elucidation springs largely from the dearth of caselaw deciding whether a crime is a “result of conduct,” “nature of conduct,” or “circumstances surrounding conduct” offense—something that is determined by looking at the gravamen of a particular offense. But in Young, the court has now categorically instructed us that with:

    1) “result of conduct” offenses, the jury must be unanimous about the specific result required by the statute;
    2) “nature of conduct” crimes, the jury must be unanimous about the specific criminal act; and
    3) “circumstances surrounding the conduct” offenses, unanimity is required about the existence of the particular circumstance that makes the otherwise innocent act criminal.

    Accordingly, where a registered sex offender failed to report and the single count indictment included two paragraphs, one alleging the failure to report before the defendant changed residence and the other alleging that the defendant failed to report after he moved, the statute created a “circumstances surrounding the conduct” offense, i.e., the failure to report (whether before or after moving). And because the defendant was charged with a single offense committed by two alternative manner and means, jury unanimity was not required on whether the defendant failed to report before or after the move or both.

    Understanding when the requirement of unanimity can be violated. Three months after Young and without a single reference to it, the court issued its unanimous decision in Cosio.9 In this case involving proof of multiple sex acts that could have satisfied the fewer charged offenses, the court told us that non-unanimity may result in three situations when the jury charge fails to properly instruct the jury, based on the indicted offense(s) and specific evidence in the case. Non-unanimity may occur when the State:

    1) presents evidence demonstrating the repetition of the same criminal conduct, but the actual results of the conduct differed (e.g., theft of single item but proof of more than one stolen item—unanimity is required as to the specific item);
    2) charges one offense and presents evidence that the defendant committed the charged offense on multiple but separate occasions (e.g., proof of repeated acts of indecency—unanimity required as to a single offense); and
    3) charges one offense and presents evidence of an offense, committed at a different time, that violated a different provision of the same criminal statute (e.g., credit card abuse by stealing, receiving, or presenting—unanimity required as to what statutory provision was violated).

    OK, got all that? Well, now that jury unanimity law is crystal clear and much easier to apply (oh, in case you forgot, don’t overlook applying the eighth-grade grammar approach to determine the elements of the offense at issue),10 let’s look at some other lighter—at least temporarily—developments.

Comments on the weight of the evidence
Over the last few years, the Court of Criminal Appeals has monitored the content of jury charges more restrictively and shown particular concern for instructions that are improperly included.11 Prior opinions have naturally triggered concern about how best to respond to jury notes sent out during deliberations. Some practitioners have wanted trial courts to have more freedom in responding. Lucio provides some relief—although, not for the unwary.12

    At punishment stage deliberations, the jury sent out two notes indicating that it wanted to know whether there were limitations on those who could testify for the defendant. The trial court brushed off the first inquiry with a conventional, terse response: “You have heard all the witnesses who were called to testify. Please continue your deliberations.”13 In response to a second, more specific inquiry—and over the defendant’s objection—the trial court preceded the same language as its prior response with the statement: “The law does not prohibit a family member from testifying on behalf of a defendant so long as the witness has relevant evidence related to an issue in the case.”

    Both appellate courts upheld the trial court, but Judge Alcala, writing for the majority in her first opinion on the Court of Criminal Appeals, emphasized that where the jury—rather than the trial court—identifies specific evidence and the trial court responds with a neutral and impartial statement describing the applicable law, the prohibition against a trial court singling out particular evidence in instructions “does not necessarily apply.”

    Despite this recognized exception, trial courts are well-advised to circumscribe their instructions because:

a trial court’s answer to a jury’s question must comply with the same rules that govern charges[. T]he trial court, as a general rule, must limit its answer to setting forth the law applicable to the case; it must not express any opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any response calculated to arouse the sympathy or excite the passions of the jury.

    Furthermore, if a defendant timely and specifically objects, he must suffer only “some actual harm” to obtain a reversal, and there really is enough caselaw already demonstrating the results of instructing the jury too loosely.

    The hypothetically correct jury charge. Malik is now an aging teenager, but its standard for determining the sufficiency of the evidence in criminal cases continues to demand clarification. In Adames, though, perhaps almost complete transparency has been provided.14

    In a non-death capital case, the jury charge alleged that the defendant committed capital murder either as the primary actor or as a party. Relying on Malik and measuring the sufficiency of the evidence against the hypothetically correct jury charge, the intermediate court held the evidence sufficient for guilt as the primary actor but not as a party because the application portion of the charge alleged the defendant as a party only to kidnapping—not kidnapping and murder. The court reversed and remanded. Not yet content (an acquittal being more desirable and available before Malik), the defendant challenged the court of appeals’ decision asserting that, in applying the state standard of Malik, it had failed to address his claim that the evidence was insufficient under the federal constitutional standard of Jackson v. Virginia.15

    The Court of Criminal Appeals put this rather bizarre or clever claim (depending on your point of view) to sleep with alacrity. Malik is nothing other than the state application of Jackson; therefore, the intermediate court had applied the proper and (post-Brooks abandoning a separate factual sufficiency standard16) only standard applicable to the sufficiency of the evidence in Texas criminal cases. The court has usefully tied up some loose ends for sufficiency of the evidence in criminal cases.

    Health and Safety Code penalty groups. Perhaps most of us would rather not think of the catalogue of curiously named, bizarrely spelled, and hard-to-pronounce drug variations listed under the Health and Safety Code penalty groups, let alone identify the specific penalty group relied upon for a conviction. But we do so at our peril, as Miles demonstrates.17

    When a jury charge and the indictment before it fail to allege one of the three applicable Health and Safety Code penalty ranges (1, 3, or 4) for a possession of codeine case, how does an appellate court evaluate the sufficiency of the evidence? The Court of Criminal Appeals held that, under Malik, the evidence must be measured against the hypothetically correct jury charge, which must adequately describe the particular offense for which the defendant was tried. Moreover, the evidence must be sufficient to prove that a particular offense occurred, and the particular offense must be that for which the defendant was tried. So the court reviewed the full record. Ultimately, it decided that, just as the defendant asserted on appeal, the relevant offense was one in Penalty Group 1. Further, the evidence was insufficient to support the conviction; therefore, it reversed and rendered a judgment of acquittal.

    In her concurrence, Judge Cochran not only recognized that the law concerning possession of codeine was “confusing and incoherent” but also shed light on the different penalty groups. Please review her opinion if handling a possession of codeine case. Meanwhile, know that she, at least, understands your pain but cannot relieve you of your burden:

Perhaps the Legislature will redraft these statutes to make them a little more user (and jury) friendly. Until and unless it does, a witness must testify that the substance meets the statutory definition of codeine as that definition is statutorily set out in either Penalty Group 1, 3, or 4. And the jury charge must contain the statutory definition of the appropriate penalty group. Finally, if a defendant files a motion to quash the indictment for lack of notice, the State must allege which penalty group offense it plans to prove in the indictment.18

    Driving while intoxicated. In Ouellette the trial court successfully—and properly—dodged the issue of including too much information in the jury charge.19 

    An officer arrested the defendant for DWI after, among other things, he smelled alcohol on her breath and found a pill bottle in the car. The charge tracked the information, which alleged DWI “by reason of introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body.”

    The defendant complained about the charge’s inclusion of the statutory language on drugs, but the Court of Criminal Appeals held that while evidence the defendant was intoxicated by way of drugs was circumstantial and not overwhelming, it was, nonetheless, present. Thus, the inclusion of the statutory language on drugs was not improper. The case not only puts circumstantial drug evidence on the same plane as circumstantial alcohol evidence in a DWI case, but it also serves as a cautionary tale to those drafting or reviewing charges to ensure that before simply reproducing the language of an accusation in a charge, the evidence supports all the allegations. (For a DWI charge actually alleging too much, see Barron under “Harm analysis,” below.)

    Unlike the previous case, the trial court in Kirsch over-instructed the jury by supplying a definition.20 A unanimous Court of Criminal Appeals held the definition of “operate” in a DWI charge was improperly submitted, reversed, and remanded for a harmless error analysis. 

    In Kirsch, a citizen discovered the defendant astride his motorcycle at an intersection. As she watched, he toppled to one side. He declined her assistance. When she drove away, though, he did not rise, so she called the police. An officer found him trying to kick-start the motorcycle and, after noticing the usual symptoms, arrested him for DWI. At trial and over the defendant’s objection, the trial court included a definition of “operate,” namely, “to exert personal effort to cause the vehicle to function.” But, the Court of Criminal Appeals opined, whether the defendant operated the motorcycle was a question of fact for the jury. The definition given the jury is one discussed in reviewing the sufficiency of the evidence, and the court has already condemned using such “judicial-review devices” in charges.21 Because the term “operate” is a common term that has not acquired a technical meaning and may be interpreted according to common usage, submitting the definition improperly restricted the jurors’ interpretation of the term and constituted an improper comment on the weight of the evidence. So beware of any non-statutory definitions in a jury charge.

Harm analysis

All too frequently, the cases have reflected a variety of harm analyses applied in jury charge cases. The court has repeatedly redirected the courts and counsel to the standards espoused in Almanza.22 A quarter-century later, Barron is really no different.23

    An officer arrested the defendant for DWI after—yes, again—he smelled the odor of alcohol, among other things, and found a blister pack of pills discerned to be hydrocodone or hydrocodeine in the defendant’s purse. The State did not introduce the drugs at trial but the trial court submitted a synergistic effect instruction. The intermediate court held the instruction was improper because it was not raised by the evidence. Unfortunately, rather than perform a harm analysis under the well-established standards of Almanza, it merely repeated its error analysis. The Court of Criminal Appeals agreed with the ultimate conclusion of the lower court but itself assayed the harm under the proper factors. On appeal, jury charge error analysis is distinct from jury charge harm analysis. Almanza, and its substantial progeny, lay out the principle factors to be considered. Enough said.


1 Goad v. State, No. PD-0435-11, 2011 Tex. Crim. App. LEXIS 4513 (Tex. Crim. App. Nov. 9, 2011) (internal citations and quotation marks omitted).

2 Sweed v. State, 351 S.W.3d 63 (Tex. Crim. App. 2011).
3 Soliz v. State, No. PD-0117-11, 2011 Tex. Crim. App. LEXIS 1344 (Tex. Crim. App. Oct. 5, 2011).
4 Alonzo v. State, No. PD-1494-10, 2011 Tex. Crim. App. LEXIS 1181 (Tex. Crim. App. Sept. 14, 2011).
5 Morales v. State, No. PD-1155-10, 2011 Tex. Crim. App. LEXIS 1508 (Tex. Crim. App. Nov. 9, 2011).
6 See Jackson v. State, 160 S.W. 3d 578 (Tex. Crim. App. 2005) (prohibiting instructions on diminished capacity); Brown, 122 S.W.3d 794 (barring instructions on appellate standards in jury charges).
7 Cornet v. State, No. PD-1067-10 (Tex Crim. App. Jan. 25, 2012).
8 Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011).
9 Cosio v. State, No. PD-1435-10, 2011 Tex. Crim. App. LEXIS 1259 (Tex. Crim. App. Sept. 14, 2011).
10  The eighth-grade grammar approach was first espoused in Jefferson v. State, 189 S.W.3d 305, 315 (Tex. Crim. App. 2006) (Cochran, J., concurring).
11 See, e.g., Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003).
12 Lucio v. State, No. PD-0659-10, 2011 Tex. Crim. .App. LEXIS 1514 (Tex. Crim. App. Nov. 9, 2011)
13 Although, even this response is arguably more specific than many. Often, if not usually, wary trial courts unhelpfully instruct the jury that it has all the relevant law in the instructions and to continue deliberating.
14 Adames v. State, No. PD-1126-10, 2011 Tex. Crim. App. LEXIS 1346 (Tex. Crim. App. Oct. 5, 2011).
15 443 U.S. 307 (1979).
16 Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
17 Miles v. State, No. PD-1709-08, 2011 Tex. Crim. App. LEXIS 1665 (Tex. Crim. App. Dec. 7, 2011).
18 Many will recall Judge Cochran’s comments about an impending state “train wreck” before continuous sexual abuse of a young child became a crime. See Dixon v. State, 201 S.W.3d 731 (Tex. Crim. App. 2006). Maybe her comments will bear fruit this time too.
19 Ouellette v. State, No. PD-1722-10, 2011 Tex. Crim. App. LEXIS 1373 (Tex. Crim. App. Oct. 10, 2011).
20 Kirsch v. State, No. PD-0245-11 (Tex. Crim. App. Jan. 25, 2012).
21 See Brown, 122 S.W.3d at 797 (improper instruction that “intent or knowledge may be inferred by acts done or words spoken”).
22 Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
23 Barron v. State, No. PD-1770-10, 2011 Tex. Crim. App. LEXIS1512 (Tex Crim. App. Nov. 9, 2011).