November-December 2012

Watch your language in DWI jury charges

John Stride

TDCAA Senior Appellate Attorney

We have all heard it or said it—especially when children are around: Watch your language. As children, adults, and especially lawyers, using appropriate language matters. This is not, however, a lesson on avoiding age-inappropriate language, colorful backtalk, or plain ol’ vulgarity. Instead, this article focuses on the less rude, written language of DWI jury charges.
    In recent years, the Court of Criminal Appeals has been articulating the scope of permissible jury charge instructions. Opinions have specifically addressed DWI charges but the subject matter is quite large, for example; whether an instruction is 1) law applicable to the case, 2) raised by the evidence, 3) improperly expanding on the charging instruments allegations, or 4) improperly commenting on the weight of the evidence. As they seem to have attracted special attention from the court across the spectrum of criminal cases, however, improper comments on the weight of the evidence alone are addressed here. 
    When composing a jury charge, trial courts are statutorily barred from commenting on the value of the evidence. A judge shall deliver to the jury “a written charge distinctly setting forth the law applicable to the case, not expressing any opinion as to the weight of the evidence.”1 With that restriction in mind, let’s consider an example.
    At trial, evidence is elicited that, in the middle of a highway intersection, an officer found an intoxicated person trying to balance astride a motorcycle while wearing his helmet, holding his keys, and attempting to kick-start the machine. Inevitably, the case turns on the meaning of the term operate, which is not defined by the Penal Code. Concerned that the jury instructions may not adequately assist the jurors in reaching a verdict, the resourceful prosecutor thinks to insert a definition in the charge. The prosecutor forages around and digs up a splendid appellate opinion explaining the term. Thoroughly persuaded by the lucidity of the definition and believing it should help the jury decide the critical issue, the trial court incorporates in the charge that operating means “exerting personal effort to cause the vehicle to function.” During argument, the prosecutor exploits the definition and, ultimately, the jury returns a guilty verdict. 
    The problem? The case has been sabotaged—innocently and inadvertently, but still sabotaged. By injecting a non-statutory definition into the jury charge, the trial court impermissibly guided the jurors’ understanding of the term and commented on the weight of the evidence. Given the correct appellate claim and that the failure to preserve error does not prevent a successful claim of charge error, an appellate court will require a new trial.2

Non-statutory definitional instructions
While most jury instructions probably could be improperly phrased so as to constitute an improper comment on the weight of the evidence, instructions defining terms undefined by statute lend themselves to this mistake too easily. The illustration above, as most will recall, is drawn from Kirsch,3 where the Court of Criminal Appeals held that including a definition of “operate” constituted an improper comment on the weight of the evidence because it restricted the jurors’ own understanding of the word. The court reasoned that when a term is not statutorily defined, the rules of grammar and common usage prevail in construing it, but if the term possesses a “technical or particular meaning,” the term is understood that way. Accordingly, jurors can ascribe to non-statutorily defined words any meaning that is “acceptable in common parlance.” A trial court that employs a non-statutory definition in a charge not only inhibits the jury’s understanding of the term, but it may also wrongly focus a jury’s attention on a specific type of evidence that supports an element of the offense. The court disagreed that the term “operate” had acquired a specialized meaning and, thus, jurors should have been at liberty to give it the meaning accorded in everyday usage.
    In addition, the court warned that the mere fact an appellate court has reached a definition of an undefined statutory term for sufficiency review purposes does not render it a legitimate term to include in a jury charge. On remand, the intermediate court held the improper instruction harmful and remanded for a new trial.4
    In the same vein, this year an intermediate court held erroneous an instruction defining “normal use.” In Baggett, the definition of that term as “the manner in which a normal non-intoxicated person would be able to use his mental or physical faculties” was also borrowed from an appellate opinion reviewing the sufficiency of the evidence and was “marginally” an improper comment on the weight of the evidence.5 Fortunately, the Texarkana Court of Appeals found the objected-to error harmless.

Breath test refusal instructions
The courts have also disapproved of instructions that juries can consider a defendant’s refusal to submit to a breath test. In Bartlett, the trial court submitted a three-paragraph instruction based on the Texas Transportation Code provision permitting evidence of breath tests refusals.6 In rejecting a jury instruction based on the provision, the Court of Criminal Appeals observed that there are just three exceptions to the general rule that a trial court cannot single out a particular item of evidence in a jury charge without signaling an impermissible view of the weight of the evidence. The trio of exceptions arise where the law:
•    directs the court to instruct that some weight or some degree of significance attaches to a category or type of evidence: e.g., an accomplice witness instruction under CCP art. 38.14 or a limiting instruction under TRE 105;
•    identifies specific evidence as a predicate fact from which the jury may presume the existence of an ultimate or elemental fact: e.g., recklessness and danger for the offense of the deadly conduct under Penal Code §22.05(c); or
•    assigns jurors the task of deciding whether certain evidence may be considered: e.g., voluntariness of a confession under CCP art 38.23. The court must necessarily identify the exact evidence in question.7
    As it has on several prior occasions, the court cautioned that even a “seemingly neutral instruction” runs the risk of constituting an improper comment on the weight of the evidence because it focuses the jury on a particular piece of evidence. Here, the breath-test-refusal instruction did not fall within any of the three exceptions and, although seemingly neutral, was an improper comment on the weight of the evidence. The case was remanded for a harmless error analysis, and the Thirteenth Court of Appeals held that the preserved error was harmless.8
    Over the last decade, the Court of Criminal Appeals has made plain that unless a jury charge instruction is the progeny of a statute (or a rule of evidence), it is likely an improper comment on the weight of the evidence.9 This general rule has been applied in charges other than DWI cases.10

­“Susceptibility” or ­“synergistic effect” instructions
In DWI cases, it can be unclear how the defendant became intoxicated whether by ingestion of alcohol, drugs, or both. This is certainly true when, at trial and for the first time, a defendant arrested for intoxication by alcohol suggests that prescription drugs were the cause of what was really no more than an indiscretion. In these cases, trial courts have instructed juries on the combination of alcohol and drugs and concurrent causes.11 Courts have also submitted susceptibility instructions, also known as synergistic effect instructions. While the former are children of the Penal Code and should ordinarily pass muster on review, the latter have been adopted without any statutory ancestry. Given the Court of Criminal Appeals’ current mission to eliminate non-statutory instructions from jury charges both in DWI cases and cases in general, is it time we reconsider whether susceptibility or synergistic effect instructions should be submitted at all?
    The latest indication that susceptibility instructions have been ill-adopted revealed itself last year. In Barron, officers arrested the defendant for DWI on the basis of her consumption of alcohol but subsequently found a partially empty hydrocodone blister pack in her car.12 At trial, despite the lack of any evidence demonstrating that the defendant had ingested the medicine on the day of her arrest, the court submitted a susceptibility instruction. The Fifth Court of Appeals held the instruction unsupported by the evidence and found the error harmful. 
    The Court of Criminal Appeals, reviewing only the question of harm, also found the error harmful. “At a minimum, the instruction emphasized the State’s evidence of combination by suggesting a specific mode of action (susceptibility) through which use of a ‘medication or drugs’ together with the use of alcohol could produce intoxication.” And later: “Harm can also result from an instruction emphasizing a particular theory or the weight to be given to a particular piece of evidence.” This analysis is really nothing more than what the court employs in finding an instruction an improper comment on the weight of the evidence.
    Nevertheless, the majority of the Court of Criminal Appeals has not yet squarely reached the question as to whether a susceptibility instruction is an improper comment on the weight of the evidence—although Gray was a close encounter. In that case, where the information alleged intoxication by alcohol alone, then-Justice Alcala, writing for the First Court of Appeals, upheld a susceptibility instruction given with a combination instruction as law applicable to the case and not 1) confusing or misleading to the jury, 2) expansive of the allegations in the information, or 3) a comment on the weight of the evidence.13
    On review, the majority of the Court of Criminal Appeals also held that the susceptibility instruction constituted law applicable to the case and did not wrongly expand the allegations of the charging instrument.14 The court, despite the invitation to do so, had expressly declined to review whether such an instruction constituted an improper comment on the weight of the evidence. Notwithstanding the limited scope of review, Judge Cochran diligently explained in her dissent (joined by Judge Meyers) why she considers a susceptibility instruction improperly given—always. The instruction is not grounded in statutory law, but rather is a creature of a 1939 Court of Criminal Appeals’ opinion “transmogrified” over the next 45 years into a legal jury instruction. Merely because a jury instruction has been submitted for years is insufficient justification to secure its survival.15 Further, the idea promoted by the instruction can still be conveyed to the jury by the evidence, testimony, and argument. Judge Cochran concluded that a susceptibility instruction is not part of the law applicable to a criminal case and is a comment on the weight of the evidence. 
    In Otto, however, the majority of the Court of Criminal Appeals decided four years after Gray and the same interval before Barron that, where an indictment alleged intoxication by alcohol alone, a combination and concurrent cause instruction absent a companion susceptibility instruction improperly expanded the allegations in the indictment.16 But again in her dissent, Judge Cochran, joined by Judge Holcomb this time, observed that the submitted instruction was based in the statute and did not comment on the weight of the evidence.
    So far, Judge Cochran may have been in the minority on her position that susceptibility instructions are a comment on the weight of the evidence, but if the instruction is considered within the court’s present overall scheme for jury charges—that non-statutory instructions are improper—susceptibility instructions linger most uncomfortably.
    Despite this background, however, the State Bar Committee on Pattern Jury Charges (Criminal) recommends the synergistic effect instruction as “part of the substantive definition of the statutory terms” and concludes that “it should not, and ultimately will not, be regarded as prohibited comment.”17 That said, “Some members of the committee strongly believed that the term operate should be defined despite the absence of a definition in the Texas Penal Code.”18 In the three years since this volume was published, could the views of the Court of Criminal Appeals judges have evolved, along with its membership, to the degree that, if presented with the issue today, it would no longer approve a susceptibility instruction?
    In any event, just because the law does not permit the inclusion of non-statutory instructions on various aspects relevant to your cases does not mean the concepts involved are barred from the courtroom altogether. Parties remain free to reason with the jury about matters that the trial court’s charge cannot include, so argue them.19 For the cautious, such arguments may be their approach to focus a jury on the concept of susceptibility or synergistic effect. For others, you may be happy with simply retorting: “Whatever!” For those falling somewhere between, how about you “give it a ponder?”20


1 Tex. Code Crim. Proc. art. 36.14.
2 See Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). Preserved charge error will result in a reversal if a reviewing court finds just “some harm,” but unpreserved charge error will lead to a reversal only if a reviewing court finds “egregious harm.”
3 Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012).
4 See Kirsch v. State, 366 S.W.3d 864 (Tex. App.—Texarkana 2012, no pet.), aff’d, 357 S.W.3d 645.
5 See Baggett v. State, 367 S.W.3d 525 (Tex. App.—Texarkana 2012, pet. ref’d). Although this case and Kirsch were heard by the same court of appeals, they arise from different counties.
6 See Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008).
7 Id. at 151.
8 See Bartlett v. State, No. 13-06-00344-CR, 2009 Tex. App. LEXIS 6883 (Tex. App.—Corpus Christi, Aug. 28, 2009, pet. ref’d) (not design. for pub.).
9 Interestingly, unlike statutes, the rules of evidence are drafted by the court and, like opinions, are what the court says. So, are instructions based on the rules of evidence, in contrast to those grounded in statutes, in a less secure position when deciding whether they are an improper comment on the weight of the evidence?
10 See, e.g., Morales v. State, 357 S.W.3d 1 (Tex. Crim. App. 2011) (instruction on duty to retreat in self-defense charge); Walters, 247 S.W.3d at 204 (instruction on prior verbal threats in self-defense charge); Brown v. State, 122 S.W.3d 794 (Tex Crim. App. 2003) (instruction on inferring intent from acts done and words spoken); Giesberg v. State, 984 S.W.2d 245 (Tex. Crim. App. 1998) (instruction on alibi); Browning v. State, 720 S.W.2d 504 (Tex. Crim. App. 1986) (instruction on inferring theft from nighttime entry of a residence).
11 See Tex. Penal Code §§6.04 (concurrent causation) and 49.01(2)(A) (combination of two or more substances).
12 See Barron v. State, 353 S.W.3d 879 (Tex. Crim. App. 2011).
13 Gray v. State, No. 01-02-00602-CR, 2003 Tex. App. LEXIS 4965 (Tex. App.—Houston [1st Dist.] June 12, 2003) (not design. for pub.), aff’d, 52 S.W.3d 125 (Tex. Crim. App. 2004).
14 Gray, 152 S.W.3d 125.
15 We learned that lesson nearly a decade ago. See Brown, 122 S.W.3d 794 (deciding that a frequently submitted instruction on inferring intent from acts done and words spoken was an improper comment on the weight of the evidence).
16 See Otto v. State, 273 S.W.3d 165 (Tex. Crim. App. 2008).  The majority also 1) ruled that the concurrent cause instruction was legally and substantively similar to a combination instruction and 2) had a somewhat mind-bending “but-for” discussion with the dissent.
17 SBOT Texas Criminal Pattern Jury Charges, Intoxication and Controlled Substances §A4.5 (2009). 
18 Id. at §A4.4
19 See, e.g., Gray, 152 S.W.3d at 138 (Cochran, J., dissenting).
20 The many hundreds of you attending the legislative updates across the state last year will recall the video clip on sexting which invited viewers to do the same. See for a refresher.