Chapter 12
Punishment Instructions
12.4 Instruction—Punishment—General
JURY INSTRUCTIONS
Members of the jury,You have found the defendant, [name], guilty of the offense of [offense]. Now you must determine the punishment to be imposed on the defendant.
The parties will soon present final arguments on punishment. Before they do so, I must now give you the instructions you must follow in determining the defendant’s punishment.
You will have a written copy of these instructions to take with you and to use during your deliberations.
I will first tell you about some general principles that apply in all criminal cases. Then I will tell you about the specific law applicable to this case. Finally, I will instruct you on the rules that must control your deliberations.
GENERAL PRINCIPLES
Jury as Fact Finder
As the jurors, you review the evidence and determine the facts and what they prove. You judge the believability of the witnesses and what weight to give their testimony.
In judging the facts and the believability of the witnesses, you must apply the law provided in these instructions.
Evidence
In determining the sentence to be imposed on the defendant, you may take into consideration all the evidence admitted before you. This includes the evidence admitted during the first stage of the trial concerning the defendant’s guilt as well as any evidence admitted during this punishment stage.
The evidence consists of the testimony and exhibits admitted in the trial. You must consider only evidence to reach your decision. You must not consider, discuss, or mention any other thing that is not evidence in the trial. You must not consider or mention any personal knowledge or information you may have about any fact or person connected with this case that is not evidence in the trial.
Statements made by the lawyers are not evidence. The questions asked by the attorneys are not evidence.
Nothing I have said or done in this case should be considered by you as my opinion about the facts of this case or influence you to vote one way or the other.
You should give terms their common meanings, unless you have been told in these instructions that the terms are given special meanings. In that case, of course, you should give those terms the meanings provided in the instructions.
While you should consider only the evidence, you are permitted to draw reasonable inferences from the testimony and exhibits if those inferences are justified in the light of common experience. In other words, you may make deductions and reach conclusions that reason and common sense lead you to draw from the evidence.
You are to render a fair and impartial verdict based on the evidence admitted in the case under the law that is in these instructions. Do not allow your verdict to be determined by bias or prejudice.
Admitted Exhibits
You may, if you wish, examine exhibits. If you wish to examine an exhibit, the foreperson will inform the court and specifically identify the exhibit you wish to examine. Only exhibits that were admitted into evidence may be given to you for examination.
Testimony
Certain testimony will be read back to you by the court reporter if you request. To request that testimony be read back to you, you must follow these rules. The foreperson must make the request in writing and sign it. That request must (1) state that it is requesting that testimony be read back, (2) state that you have a disagreement about a specific statement of a witness or a particular point in dispute, and (3) identify the name of the witness who made the statement. The court will then have the court reporter read back only that part of the statement that is in dispute.
[Include the following if the defendant did not testify and the defendant does not object.]
Defendant’s Right to Remain Silent
The defendant has a constitutional right to remain silent. The defendant may testify on his own behalf. The defendant may also choose not to testify. The defendant’s decision not to testify cannot be held against him, and it is not evidence of guilt. You must not speculate, guess, or even talk about what the defendant might have said if he had taken the witness stand or why he did not. The foreperson of the jury must immediately stop any juror from mentioning the defendant’s decision not to testify.
[Include the following only if evidence of unadjudicated wrongful acts is admitted in the guilt/innocence or punishment phase of trial.]
Burden of Proof for Wrongful Acts
During the trial, you heard evidence that the defendant may have committed wrongful acts that did not result in any criminal charges or that did not result in criminal convictions. [If requested by a party and permitted by judge, include judge’s description of specific acts.] You are not to consider any evidence of any particular wrongful act unless you find, beyond a reasonable doubt, that the defendant did, in fact, commit that wrongful act. Those of you who believe the defendant did the wrongful act may consider it.
Assessing the Punishment
You must arrive at the amount of punishment by a full, fair, and free expression of the opinion of the individual jurors. You must not decide the punishment by lot or by chance. For example, you may not agree beforehand to be bound by the result of a procedure by which each juror gives the number of years the juror thinks should be served, these are then added, and the result is divided by twelve.
To reach a verdict, all twelve of you must agree.
SPECIFIC LAW APPLICABLE TO THIS CASE
[Insert appropriate specific instructions.]
RULES THAT CONTROL DELIBERATIONS
You must follow these rules while you are deliberating and until you reach a verdict. After the closing arguments by the attorneys, you will go into the jury room.
The foreperson should conduct the deliberations in an orderly way. Each juror has one vote, including the foreperson. The foreperson must supervise the voting, vote with other jurors on the verdict, and sign the verdict sheet.
While deliberating and until excused by the trial court, all jurors must follow these rules:
- You must not discuss this case with any court officer, or the attorneys, or anyone not on the jury.
- You must not discuss this case unless all of you are present in the jury room. If anyone leaves the room, you must stop your discussions about the case until all of you are present again.
- You must communicate with the judge only in writing, signed by the foreperson and given to the judge through the officer assigned to you.
- You must not conduct any independent investigations, research, or experiments.
- You must tell the judge if anyone attempts to contact you about the case before you reach your verdict.
After you have arrived at your verdict, you are to use one of the forms attached to these instructions. You should have your foreperson sign his or her name to the particular form that conforms to your verdict.
After the closing arguments by the attorneys, you will begin your deliberations to decide your verdict.
[Insert verdict form.]
Comment
The directive that the trial judge instruct the jury when the jury is to assess punishment is set out in Tex. Code Crim. Proc. art. 37.07, § 3(b). The provisions for instructions on parole and good conduct time are set out in Tex. Code Crim. Proc. art. 37.07, § 4.
Burden of Proof Generally. Under present practice, punishment instructions sometimes include a statement that “[t]he burden of proof in all criminal cases rests upon the state throughout the trial and never shifts to the defendant.” See Flores v. State, No. 01-99-0138-CR, 2001 WL 170961, at *2 (Tex. App.—Houston [1st Dist.] Feb. 22, 2001, pet. ref’d) (not designated for publication). The Committee concluded that this was not appropriate. The law provides that neither side has a burden of proof at sentencing, and the sometimes-given instruction misleadingly suggests otherwise. Garcia v. State, 901 S.W.2d 724, 731 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).
The court of criminal appeals has held that such an instruction is not necessary. Halford v. State, 400 S.W.2d 339, 340 (Tex. Crim. App. 1966). The Committee concluded it was also inappropriate.
In some exceptional cases, a burden of proof is assigned to one party. When this is the case, this burden can be explained to the jury in that portion of the instructions dealing with the specific facts of the case.
Prohibition against Determining Verdict by Lot. The Texas Rules of Appellate Procedure state that the defendant must be granted a new trial “when the verdict has been decided by lot or in any manner other than a fair expression of the jurors’ opinion.” Tex. R. App. P. 21.3(c). The Committee therefore included the prohibition of a decision by lot or chance in the instructions. Driver v. State, 38 S.W. 1020, 1024 (Tex. Crim. App. 1897) (“[W]e . . . suggest that, inasmuch as it is not of infrequent occurrence that cases come before this court in which it appears that the verdict of the jury has been arrived at by lot, the district judges should instruct the jury as to the impropriety of this manner of arriving at their verdicts.”).
The instruction also addresses the major procedure barred by the prohibition. The jurors cannot agree beforehand to be bound by the result of a procedure by which each juror gives the number of years the juror thinks should be served, these are added, and then the result is divided by twelve. It is permissible for the jurors to do this as a basis for arriving at a number that they will then discuss on its merits. Cravens v. State, 117 S.W. 156, 158 (Tex. Crim. App. 1908) (not violation if no agreement beforehand).
Burden of Proof for Extraneous Offenses. Article 37.07, section 3(a)(1), of the Texas Code of Criminal Procedure provides that “evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.” Tex. Code Crim. Proc. art. 37.07, § 3(a).
Whether or not the defendant requests the instruction, the trial court must instruct the jury in the punishment phase of trial that extraneous offenses must be proved beyond a reasonable doubt, if extraneous-offense evidence has been admitted in the trial. See Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The appellate court must apply the egregious-harm standard to review error in failing to instruct the jury on the burden to prove extraneous offenses when the defendant fails to object to the charge. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
Courts have held that the extraneous-offense instruction is not required at the punishment phase in certain instances. The instruction is not required when the evidence is in the form of a prior conviction introduced at the punishment phase. Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) (“While the prior convictions must be properly proved, to require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result, as the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable doubt has already been met in a prior proceeding.”). The instruction is not required when the defendant introduces the extraneous-offense evidence in the guilt/innocence phase of trial. Elder v. State, 100 S.W.3d 32, 35 (Tex. App.—Eastland 2002, pet. ref’d). The instruction is not required when the punishment evidence is in the form of victim-impact testimony and cross-examination of character witnesses. Rayme v. State, 178 S.W.3d 21, 25 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
One intermediate court has held that the beyond-a-reasonable-doubt instruction is required when evidence of other offenses is admitted during the guilt/innocence phase as same-transaction contextual evidence and the evidence is reoffered at the punishment phase of a trial. Moore v. State, 165 S.W.3d 118, 125 (Tex. App.—Fort Worth 2005, pet. ref’d). However, Judge Cochran of the court of criminal appeals has stated that article 37.07, section 3(a), “does not set out any ‘same transaction contextual evidence’ exception to the statutorily-required reasonable-doubt jury instruction.” King v. State, 125 S.W.3d 517, 519 (Tex. Crim. App. 2003) (Cochran, J., concurring in refusal of appellant’s petition for discretionary review).
Although prior convictions need not include the burden-of-proof instruction for extraneous offenses, the Committee recommends that when there is no objection from the defense, the trial court include the instruction for all other extraneous offenses admitted anytime during the trial.