May-June 2018

Paying attention to jury charges

Zack Wavrusa

Assistant County and District Attorney in Rusk County

Please raise your right hand and repeat after me:

“I [state your name] do solemnly swear that, in all of my jury trials, I will read the jury charge at least three times. I will read it once to make objections to its contents. I will read it a second time to be certain no necessary law is omitted. I will read it a third time to make notes about how I can use its contents to strengthen my jury argument.
    “I vow to stay informed about developments to the law concerning jury charges. I will not let an ill-prepared defense attorney or judge jeopardize the justice that I work so hard to achieve. I will not put myself in the position of calling a victim and telling him that his case must be re-tried because of an errant sentence that a jury may or may not have given any attention.
    “These things I swear, under penalty of death.”1

When I was a baby prosecutor, I used to think of the jury charge as nothing more than a 20-minute monologue given by the judge prior to closing arguments. Time seemed to stand still as the judge read definitions from the Penal Code and gave the jury instructions on how to deliberate. Admittedly, I rarely paid attention during this time; instead of listening attentively, I would read over my notes for closing argument.
    If I could go back in time to the early part of my career, I would have a lot of advice to give myself. One of the first things I would say is, “Jury charges are important. Put your notes away and pay attention.” The jury charge (often called the jury instructions or charge of court) is a direct communication from the judge to the jury that explains all the law applicable to the case. Essentially, the jury charge is the very official way the court explains to the jurors what their job is and how they are supposed to do it. Isn’t that worth paying attention to?
    The second thing I would tell myself is to take the time to learn about the charge. Everything in it is there for a reason. I didn’t realize just how little I knew about the law governing jury charges until I had the pleasure of serving on the State Bar’s Criminal Pattern Jury Charge Committee. My experience on the committee has been enlightening to say the least. Understanding what is (and what is not) supposed to be in the jury charge is critical knowledge for prosecutors. Whether you are preparing the charge of the court yourself or are living the dream and the court is doing it herself, a basic understanding of its purpose and its construction will aid you immensely.

What is the purpose of a jury charge?
“The jury charge is the means by which a judge instructs the jurors on the applicable law.”2 The charge “must contain an accurate statement of the law and must set out all the essential elements of the offense.”3 The jury charge is supposed to do more than just avoid misleading or confusing the jury.4 In fact, the Court of Criminal Appeals has stated that the function of the jury charge is to lead the jury and prevent confusion.5
    Surprisingly, the Code of Criminal Procedure is light on details when it comes to the jury charge. The code discusses the jury charge and procedures for offering special charges and making objections in just two sections. The legislature spends more time discussing procedures for handling the jury once deliberations have begun than on the charge that governs them. At least the legislature made it clear that the court is not to provide any liquor to the jury once deliberations have begun.6
    Texas Code of Criminal Procedure Art. 36.14 requires that in all jury trials, whether misdemeanor or felony, the court must prepare a written charge distinctly setting forward the law applicable to the case. The charge of the court is prohibited from 1) expressing an opinion on the weight of the evidence, 2) summarizing any testimony, or 3) mentioning any fact or argument that is designed to evoke an emotional response from the jury.
    Art. 36.14 provides for defense objections to the charge only; these objections must be made in writing or dictated to the court reporter in the presence of the State’s counsel. Defense counsel must distinctly specify each objection to the charge, including errors committed in the charge as well as errors committed by omissions from the charge. A defendant does not have to present a special or requested jury instruction to preserve an alleged jury charge error on appeal.
    If we looked at the CCP alone, it would appear as if the State has no ability to object to the charge of the court. However, an examination of relevant caselaw makes it clear that the State can make objections or exceptions to the charge. Examples are surprisingly few and far between, but they exist.7   
    The CCP provides for both the State and defense to propose special charges to the court. As with objections and exceptions to the charge, these proposals for special charges must be made in writing or dictated into the record.8 Special charges are to be incorporated into the main charge of the court, and the jury is not allowed to know that any special charge accepted into the main charge was requested by one of the parties.9 If the court fails to respond to a requested special charge (or an objection to the charge), the requested charge or objection won’t be deemed waived and can still be raised on appeal.10
    Placed in the hands of lawyers, those two little sections in Chapter 36 of the Code of Criminal Procedure, predictably, have gone a long way. There are a few different series of pattern jury charge books available to prosecutors, defense attorneys, and judges that can guide us as to what should be in specific charges for specific offenses. If we compare these pattern charge books to each other, at first glance they appear to be pretty different. However, a closer comparison will reveal that they are remarkably similar in terms of content. The biggest difference between them is how they are organized. Whatever differences the series have, they tend to all contain the following:
•    general statements of criminal law,
•    the accusation paragraph,
•    law applicable to the case,
•    definitions,
•     special charges,
•    application of law to facts (application para-
    graph), and
•    rules governing deliberation.
    Let’s look at each element in depth.

General statements of criminal law
Baby prosecutors get tons of advice as they are coming along. Like a lot of other new prosecutors, I was told early on in my career to not make a big deal about making some kind of courtroom faux pas or otherwise let my inexperience reveal itself. “Don’t worry. The jury doesn’t know better,” they would tell me, and they were right. Most of the time, jurors will not have any experience with criminal law and courtroom procedure.
    Most pattern charges recognize this fact and, consequently, a few paragraphs are dedicated to the more important principles of criminal law, many of which will have been covered in voir dire. For example, the presumption of innocence, the burden of proof, and the defendant’s right not to testify are all principles typically discussed.11 In this section of the charge, jurors are also instructed by the court about the need for a unanimous verdict as well as their ability to request that admitted exhibits be brought to the jury room during deliberation or have disputed testimony read back by the court reporter.
    During closing argument, this part of the charge is not typically worth spending significant time explaining to jurors. Most of the principles will have been previously explained to them, and repeating the information yet again is going to detract from closing argument much more than that it will add anything. If there is a particular exhibit that a prosecutor feels is important and you really want to stress that importance to the jury, consider telling the jury in closing that the court’s charge allows them to request that particular exhibit be sent back to them.

Accusation paragraph
Every jury charge must contain an accusation paragraph that states the offense to which the defendant has pleaded not guilty. The accusation paragraph must track the language of the indictment. Play close attention to this paragraph, especially if you are not drafting the charge of the court yourself.

Law applicable to the case
The charge of court should have a section that discusses the statutory provisions applicable to the charged offense. The Penal Code provision that is the basis for the offense charged will always be one of these statutes. If there is sufficient evidence to suggest that there is a defense applicable to the case, it should also be mentioned here.
    There are differing opinions between the various charge books about how to present the relevant statutes in the jury charge. The State Bar’s Pattern Jury Charge book will start with a description of the conduct required to commit the offense and then break the relevant statute into individual elements through the use of numbered points. Other charge books merely recite the elements of the offense as a single sentence.
    Let’s look at Burglary of Habitation for an example. The State Bar Pattern Jury Charge looks like this:

                  A person commits an offense if the person intentionally, knowingly, or recklessly, and without the effective consent of the owner enters a habitation with the intent to commit a felony, theft or an assault.

                  To prove that the defendant is guilty of burglary, the state must prove, beyond a reasonable doubt, four elements.  The elements are that –

  1. The defendant, intentionally, knowingly, or recklessly entered a place; and
  2. The place entered was a habitation; and
  3. The owner of the habitation did not effectively consent to this entry; and
  4. The defendant intended to commit a felony theft or an assault

Texas Criminal Pattern Jury Charges:  Crimes Against Persons and Property 2016 , Published by the State Bar of Texas, Prepared by the Committee on Pattern Jury Charges – Criminal

    The alternative, single sentence approach looks like this:

                  A person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation with the intent to commit a felony, theft, or an assault.

Texas Criminal Jury Charges, Volume 1, Revision 17, By Judge Elizabeth Berry (Ret.) and Judge George Gallagher, Published by James Publishing 2017

Whether to use a numbered breakdown of the elements or a single sentence is a matter of style, not substance. I have heard a handful of prosecutors and judges complain that the way certain pattern jury charge books break the offenses down into elements is arbitrary and amounts to a comment on the weight of the evidence, but I am unaware of any appellate court discussing a jury charge breaking down the relevant statutes in this manner. For anyone who might be concerned, the Court of Criminal Appeals has not-so-subtly endorsed the State Bar’s Pattern Jury Charge books, which use the numbered approach.12 Whatever style you end up choosing, make sure to format the application paragraph similarly. There isn’t an appellate court case that says it’s error to take the numbered approach in the law applicable to the case section and a single-sentence approach in the application paragraph, but arguing the charge to the jury is going to be a lot easier when there is parallelism between these two sections.

The “law applicable to the case” includes the statutory definitions that affect the meaning of the elements of the offense.13 Every statutory definition applicable to the case must be included in the jury charge.14 The court has a duty to give these statutory definitions even when the defendant does not request them.
    It can be tempting to include non-statutory definitions into the charge. Special, non-statutory instructions, even when they relate to statutory offenses or defenses, generally have no place in the jury charge.15 If you include a non-statutory definition, it will be error even if the definition provided is a correct statement of the law.16 If a non-statutory definition is included in the jury charge, the only question will be if the erroneous inclusion was harmful or not.

Special charges
Sometimes special charges will need to be submitted to the jury. Special charges are unusual—you won’t see a special charge in every case you try. Common special charges include the instruction on the defendant’s prior bad acts, the accomplice witness rule, and the use or exhibition of a deadly weapon.
    When the evidence necessitates the inclusion of special charges, prosecutors should pay close attention to their contents. I strongly encourage prosecutors to spend time arguing special charges to the jury. Every special charge is given to the jury for a reason. If you don’t spend at least a couple minutes of your closing to explain the special charge, you risk a jury trying to figure it out on their own and potentially reaching the wrong conclusion about the evidence. If you were able to admit evidence about the defendant’s prior bad acts at trial to show an absence of mistake or motive, don’t you want the jury to consider it for that reason? Use the special charge as a tool to bolster your argument. Show the jury why the evidence should be considered as evidence of motive and then point to the charge and remind them that the charge of the court gives them express permission to do exactly that.

Application of law to facts (application paragraph)
When it comes to jury charges, the application paragraph is really where the rubber meets the road. The application paragraph accompanies the abstract portion of the charge, applying the law and the specific charges alleged against the defendant to the evidence presented at trial.17 The application paragraph must 1) specify “all of the conditions to be met before a conviction under such theory is authorized”; 2) authorize “a conviction under conditions specified by other paragraphs of the jury charge to which the application paragraph necessarily and unambiguously refers”; or 3) contain some logically consistent combination of such paragraphs.18

Dealing with indictment errors in the application paragraph. To no one’s surprise, indictments may occasionally contain substantive errors. From time to time, an indictment containing a substantive error will be brought to trial. Luckily, caselaw pretty clearly states that the purpose of an indictment is to provide notice to the defendant. Because the indictment exists to provide notice, substantive errors contained therein can be cured by properly charging the jury in the application paragraph.
    If the indictment alleges more than is required by statute, it may be possible to omit the extra language (called surplusage) from the application paragraph. Surplusage is defined as unnecessary words or allegations in an indictment that are not descriptive of what is legally essential to constitute the offense.19 The deletion of surplusage is not considered an amendment of the indictment and does not implicate CCP Art. 28.10.20 Some of you may remember that there used to be an exception to this rule of surplusage that said when an unnecessary allegation “is descriptive of that which is legally essential to charge a crime, the State must prove it as alleged though needlessly pleaded.”21 This exception has been overruled, and the test to determine whether the State must prove the needlessly pleaded term is one of materiality.22

Alternate manner and means within the application paragraph. Occasionally, you may try a case where alternate methods of committing a single offense have been alleged in the indictment. The Court of Criminal Appeals has held that it is proper for the jury to be charged in the disjunctive.23 It is appropriate, where the alternate theories of committing the same offense are submitted to the jury in the disjunctive, for the jury to return a general verdict if the evidence is sufficient to support a finding under any of the theories submitted.24 Do not submit alternate theories of committing the offense unless they are both charged in the indictment and supported by the evidence presented at trial.
    Because the application paragraph is what authorizes a jury to convict, it is imperative that prosecutors pay close attention to it. The language of the application paragraph needs to track the language of the indictment. It also must be worded in such a way that the jury is not allowed to return a guilty verdict without finding every element of the offense beyond a reasonable doubt.
    Review Uddin v. State to see a cautionary tale. In Uddin, the defendant was charged with and convicted of aggravated kidnapping. The application paragraph in Uddin set out the two elements of aggravated kidnapping disjunctively rather than conjunctively,25 thus allowing the jury to find the defendant guilty if they believed beyond a reasonable doubt that he had “unlawfully, intentionally, or knowingly abduct[ed] [the complainant], without her consent, with intent to prevent her liberation by secreting or holding [the complainant] in a place where she was not likely to be found or with intent to violate or abuse [the complainant] sexually” (emphasis added).26 To properly find the defendant guilty of aggravated kidnapping, the State was required to prove both 1) abduction—that the appellant intentionally or knowingly restrained the complainant with the intent to prevent her liberation by secreting or holding her in a place where she was not likely to be found—and 2) aggravation—that the appellant did so with the intent to violate or abuse her sexually. However, because the application paragraph charged in the disjunctive (“or”) instead of the conjunctive (“and”), it allowed the jury to erroneously convict the defendant of first-degree aggravated kidnapping by finding only intentional and knowing abduction, a third-degree felony kidnapping.

Error in the applicationparagraph itself. If there is error in the jury charge and the defendant objects to it, the appellate court will reverse if the defendant suffers any harm.27 Jury charge error to which the defense does not object at trial can still be reviewed on appeal, but on appeal, the conviction will be reversed only if the harm is egregious. If there is error anywhere in the jury charge, but especially in the application paragraph, it should be un-objected error that slips by the trial counsel for both the State and the defendant. If the defense objects to a supposed error in the charge, take time to research the issue and get it right the first time.
    Because the application paragraph has been described as the “heart and soul” of the jury charge,28 prosecutors could be forgiven for panicking when confronted with an error within one. However, all is not necessarily doomed. In examining the record to determine whether the charge error is egregious, appellate courts will consider 1) the entirety of the jury charge itself, 2) the state of the evidence, 3) counsels’ arguments, and 4) any other relevant information revealed by the entire trial record.29 This broad approach to examining errors can save your bacon when it comes to errors.
    In Marshall v. State, the defendant was on trial for the offense of Assault–Impeding Breath. In the abstract portion of the charge discussing the law applicable to the case and the definitions, the court properly discussed “bodily injury.” The charge omitted, however, “bodily injury” from the application paragraph itself. In its application paragraph, the court said that “the defendant, Patrick James Marshall, … did then and there intentionally, knowingly, or recklessly impede the normal breathing or circulation of the blood of Shawne Marshall by blocking the nose or mouth of Shawne Marshall with a pillow, and the said Shawne Marshall was then and there a member of the defendant’s family or household.”
    While this omission was error, the court held it was not egregious harm, and the conviction was upheld. The harm wasn’t egregious because the application paragraph required the jury to find a specific type of bodily injury. The error didn’t deprive the defendant of any valuable rights, nor did it vitally affect his defensive theory.

Jury unanimity and the application paragraph. The Texas Constitution requires jury unanimity in all felony cases.30 The Code of Criminal Procedure establishes the requirement for unanimity in all criminal cases.31 Unanimity within the context of a jury charge means that each and every juror agrees that the defendant committed the same, single, specific criminal act.32 A jury charge that allows for a non-unanimous verdict concerning what specific criminal act the defendant committed is error.33 When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.34
    A poorly worded application paragraph is not just confusing to the jury. It is possible to word an application paragraph in such a way that it allows a jury to return a verdict of guilty without being unanimous as to the actual crime the defendant committed. The general rule is that if the State is alleging a single offense to have been committed using different manner and means, the jury is not required to be unanimous as to the manner and means. However, if the indictment alleges the defendant committed one of two or more acts, the jury has to be unanimous as to which act was committed.
    In Ngo v. State, the defendant was charged with credit card abuse after he presented a woman’s stolen credit cards to the manager of a karaoke bar who just so happened to be the woman’s ex-husband. The indictment contained three paragraphs alleging three separate criminal acts: stealing a credit card, receiving a stolen credit card, and fraudulently presenting a credit card to pay for goods or services. In Ngo, the application paragraphs read:

“Now, if you find from the evidence beyond a reasonable doubt that [the appellant] on or about the 13th day of December, 2002, did then and there unlawfully, intentionally, or knowingly steal a credit card owned by the cardholder, Hong Truong, with intent to deprive the cardholder of the property and without the effective consent of the cardholder; or            

“If you find from the evidence beyond a reasonable doubt that [the appellant] on or about the 13th day of December, 2002, did then and there unlawfully and knowingly receive with intent to use a credit card owned by cardholder, Hong Truong, knowing the credit card had been stolen; or

“If you find from the evidence beyond a reasonable doubt that [the appellant] on or about the 13th day of December, 2002, with intent to obtain a benefit fraudulently, did use or present to Hanh Nguyen a credit card knowing the use was without the effective consent of the cardholder, Hong Truong, namely without consent of any kind, and knowing that the credit card had not been issued to the defendant, then you will find [the appellant] guilty as charged in the indictment (emphasis added).”

    On appeal, the State argued that this application paragraph merely laid out alternate means of committing a single offense or, alternatively, the application paragraphs “merely showed repeated instances of commission of the offense of credit card abuse.”37 The Court of Criminal Appeals completely rejected this argument. The Court held that this application paragraph alleged three distinct criminal acts, namely 1) stealing a credit card, 2) receiving a credit card knowing that it was stolen and acting with the intent to use it, and 3) presenting a credit card with the intent to obtain a benefit fraudulently, knowing the use was without the effective consent of the cardholder.
    Because three separate criminal acts were alleged, it was error not to instruct the jury that jurors must be unanimous as to which specific act the defendant committed. In fact, unanimity was mentioned only in the boiler-plate instructions dealing with the selection of the jury foreman. Ultimately, Ngo’s conviction was reversed as the court found that this error in the charge was egregious under Almanza.
    So, what can we do to prevent repeating the events of Ngo? If you have a single-count indictment, it’s pretty easy. All you must do is make sure that the language of the application paragraph and the verdict form don’t allow the jury the opportunity to find the defendant guilty of the offense charged and any lesser included.
    If an indictment alleges multiple counts or contains multiple paragraphs, it can get a little bit trickier. Step One begins with the indictment. Compare it closely with the criminal statute on which it’s based. If the indictment alleges merely different manner and means of committing the exact same offense, then the jury charge can have a disjunctive application paragraph without having to worry about a jury unanimity issue. However, if the indictment alleges different offenses, you must include language in the jury charge that says the jury must find each individual offense beyond a reasonable doubt.
    Be extra wary if you are pursuing an indictment that alleges multiple violations under the same statute. Several different behaviors can all be criminalized under the same statute and be called the same offense, and it’s not the same as alternate manner and means of committing the same offense. For example, in Ngo, the Court of Criminal Appeals said that “stealing a credit card on Monday is not the same specific criminal offense as receiving a stolen credit card on Tuesday or presenting a stolen credit card to a bartender on Wednesday. Indeed, stealing a credit card at 9:00 a.m. on Monday is not the same specific criminal offense as receiving a stolen credit card at 9:00 a.m. on Monday. These are all credit card abuse offenses, to be sure, but they are not the same, specific credit card abuse criminal acts committed at the same time or with the same mens rea and the same actus reus.”38
Rules governing deliberation
The jury charge will typically wind down with a brief section on rules governing the jurors’ deliberation. This section will instruct the jurors to elect a foreperson, advise them on how to communicate with the court, and tell them not to discuss the case unless all members of the jury are present, among other things.

The jury charge is the only source of information that jurors can consult when they hit a roadblock during deliberations. It’s our duty as prosecutors to be informed about the legal requirements of the jury charge. Only when we fully understand the rhyme and reason of the jury instructions can we use it to strengthen our jury arguments and insure that our hard-won convictions are not overturned because of a charging error.


 1 I realize that death seems like a pretty steep penalty for a mistake in the jury charge. I’ve been reading Game of Thrones lately and George R. R. Martin has convinced me that there is no other appropriate punishment for oath-breakers.

2  Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).

3  Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995).

4  Reeves v. State, 420 S.W.3d 812, 817-19 (Tex. Crim. App. 2013).

5  Id.

6  Tex. Code Crim. Proc. Art. 36.21.

7  See Davis v. State, 268 S.W.3d 683, 710 (Tex. App.—Fort Worth 2008, pet. ref’d) (discussing the State’s objections to the charge of the court at trial).

8  Tex. Code Crim. Proc. Art. 36.15.

9  Id.

10  Id.

11  If the defendant ends up taking the stand during the trial, be sure this paragraph is removed from the jury charge. It’s unlikely an appellate court would find harmful error if it remains, but why leave anything unnecessary in the charge for the jury to needlessly confuse themselves with?

12  See Gelinas v. State, 398 S.W.3d 703, 711 (Tex. Crim. App. 2013) (Cochran, J., concurring) (suggesting that a trial court “should ‘chunk’ information and give it to the jury in … short, digestible pieces as shown in the Texas Criminal Pattern Jury Charges volumes published by the Texas State Bar”).

13  Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011).

14  Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009).

15  Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007).

16  See Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012)(holding that the trial court erred in providing a definition of the term “operate” for purposes of driving while intoxicated). See also Baggett v. State, 367 S.W.3d 525, 527 (Tex. App.—Tyler 2012, pet. ref’d)(holding that the trial court erred in providing a definition for the term “normal use” for purposes of driving while intoxicated).

17  Reeves, 420 S.W.3d at 817.

18  Vasquez, 389 S.W.3d at 367.

19  See Brown v. State, 843 S.W.2d 709, 713–14 (Tex. App.—Dallas 1992, pet. ref’d).

20  Hall v. State, 62 S.W.3d 918, 919 (Tex. App.—Dallas 2001, pet. ref’d).

21  Eastep v. State, 941 S.W.2d 130, 134 n. 7 (Tex. Crim. App. 1997), overruled on other grounds.

22  See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).

23  Vasquez v. State, 665 S.W.2d 484, 486-487 (Tex. Crim. App. 1984).

24  Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987).

25  Uddin v. State, 503 S.W.3d 710, 714 (Tex. App. — Houston [14th Dist.] 2016, no pet.).

26 Id.

27  Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

28  Vasquez, 389 S.W.3d at 367.

29  Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).

30  Tex. Const. Art. V, §13.

31  See Francis v. State, 36 S.W.3d 121, 126 (citing Tex. Code Crim. Proc. Arts. 36.29(a), 37.02, 37.03, 45.034-45.036).

32  Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005).

33  Francis, 36 S.W.3d at 125.

34  Id. (“the unanimity requirement is undercut when a jury risks convicting the defendant of different acts, instead of agreeing on the same act for a conviction”) (citing United States v. Holley, 942 F.2d 916, 925 (5th Cir. 1991)).

35 Tex. Penal Code §32.31.

36  Ngo, 175 S.W.3d at 741.

37  Id. at 743.

38  Id. at 745.