Comment

Under current practice, punishment stage jury instructions seldom attempt to do more than explain to juries the options regarding punishment available to them. The instructions make absolutely no effort to guide juries in selecting an appropriate punishment.

Initially, the Committee considered whether to recommend a basic change in current practice by offering punishment stage instructions that would attempt to assist juries in assessing appropriate punishment.

The legal background of current practice and possible alternatives is complex. There is no statutory directive that trial courts attempt to give such guidance. The Texas Code of Criminal Procedure provides only that “if the jury has the responsibility of assessing the punishment, the court shall give such additional written instructions as may be necessary.” Tex. Code Crim. Proc. art. 37.07, § 3(b). The Committee found no more specific directives from the legislature.

Constitutional considerations do not mandate a jury instruction guiding the jury’s discretion. The court of criminal appeals summarily rejected a defendant’s contention that his due-process rights were violated because “the trial court’s charge on punishment failed to provide any criteria, test, or guidance as to factors to be considered by the jury in assessing [the defendant’s] punishment.” Ward v. State, 474 S.W.2d 471, 478 (Tex. Crim. App. 1972).

Defendants have occasionally sought jury instructions providing guidance based on Tex. Penal Code § 1.02 (“Objectives of [Penal] Code”) or its predecessor. Sometimes they have been successful. Ex parte Smith, 185 S.W.3d 455, 461 (Tex. Crim. App. 2006) (“[A]pplicant requested an instruction on the objectives of the Penal Code as set out in Section 1.02; the trial court granted that request.”); Hall v. State, 235 S.W.2d 638, 638 (Tex. Crim. App. 1951) (“At appellant’s request, the trial court did embody in his charge Article 2, Vernon’s P.C., that ‘The object of punishment is to suppress crime and reform the offender.’ ”).

The appellate case law on such an instruction is somewhat tangled. In Hutcherson v. State, 136 S.W. 53, 56 (Tex. Crim. App. 1911), the court held that the trial court did not err in refusing to instruct the jury in terms of the then-current statute that “the object of punishment, under the law is to suppress crime and reform the offender, and any punishment having any other object is not authorized by law.” Such an instruction, it added, would have been “neither appropriate nor proper.” Reaching the same result forty-six years later, the court commented that such an instruction would be “improper.” The court explained that any instruction on “the facts in evidence in this case in support of the offense charged and the penalty authorized to be assessed” would be “a comment on the weight of the evidence and tend to convey the opinion of the court to the jury as to the disposition that should be made of the case.” White v. State, 306 S.W.2d 903, 907 (Tex. Crim. App. 1957). Accord Crain v. State, 394 S.W.2d 165, 169 (Tex. Crim. App. 1964) (opinion on initial submission).

The 1974 Penal Code, in section 1.02, set out a more extensive explanation of the purposes of the Code and the objectives that the Code is intended to achieve and that are to be considered in construing the Code. But a trial judge was held not to have “erred in refusing to charge the jurors informing them of the objectives of the penal code as set out in V.T.C.A. Penal Code, Section 1.02.” Hart v. State, 634 S.W.2d 714, 716–17 (Tex. Crim. App. [Panel Op.] 1982). Under White and Crain, the court explained, “a charge on the objectives of the penal code is improper.” The court added, “[I]n any event the refusal to submit such an instruction was not an abuse of discretion.”

Considerable confusion was created by Cane v. State, 698 S.W.2d 138 (Tex. Crim. App. 1985). The judgment of the court of criminal appeals was announced in an opinion joined by only two judges. That opinion purported to announce a holding that “a charge on the objectives of the Penal Code as listed in § 1.02, [is] discretionary.” Hart and its progeny, to the extent of conflict, were overruled. In explanation, Judge Campbell’s opinion offered that—

Cane, 698 S.W.2d at 140. Thus the court of appeals erred in applying Hart and finding error simply in the giving of the instruction. The instruction actually given in Cane, however, did not include all the objectives listed in section 1.02. A proper instruction, the lead opinion continued, would include all the statutory objectives of the Penal Code. Thus the trial court erred. Since Cane had not objected on this ground, the case was remanded for a determination of whether the defendant suffered egregious harm. Three of the eight judges participating concurred in the result but not in Judge Campbell’s opinion announcing that result.

The precedential significance of Cane is in some doubt. See Teague v. State, 703 S.W.2d 199, 202 (Tex. Crim. App. 1986) (discussing Cane opinion). At most, however, Cane establishes two things. First, an instruction embodying section 1.02’s provisions is not a prohibited comment on the evidence and thus a trial judge has discretion to give it. Second, if such an instruction is given it must inform the jury of all the substance of section 1.02 rather than selected portions of the statute.

The Committee considered offering an instruction to guide jurors in assessing appropriate punishment. Such an instruction might call the jurors’ attention to the general purposes of the Penal Code as set out in section 1.02 and to the legislature’s objectives clarified by the statute. Or the instruction might go further and inform the jury that it might—or must—take those considerations into account in assessing the punishment to be imposed on the defendant.

But the Committee concluded that it could draft no instruction that would be of practical value to jurors. The case law indicates that any such instruction would have to include most and perhaps all of the statutory provisions. An instruction calling attention to some of these might well add to the difficulty of the jurors’ tasks.

Thus the Committee recommends continuation of the existing practice under which the instructions are limited to informing juries regarding their options. No effort should be made in the instructions, either by referring to section 1.02 or otherwise, to offer jurors guidance on how they should go about assessing an appropriate punishment in a particular case.

Finally, punishment instructions are often necessarily fact specific. The instructions in this chapter are therefore illustrative only, giving examples of how instructions may be constructed to submit various punishment options.