Chapter 12
Punishment Instructions
12.5 Instruction—Jury Punishment on a Plea of Guilty
JURY INSTRUCTIONS
Members of the jury,
The defendant, [name], has pleaded guilty of the offense of [offense]. You are instructed to find the defendant guilty. You must also 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
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 re-quest. 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.]
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.
[Continue with the following verdict form or use a verdict form tailored to the case, ensuring it also includes a finding of guilt.]
VERDICT
We, the jury, find the defendant, [name], guilty of the offense of [offense]. We assess the defendant’s punishment at: (select one)
________________________________
________________________________
Comment
When the defendant pleads guilty (or nolo contendere) and goes to the jury for punishment—a procedure commonly called a “slow plea”—the general practice is to present the indictment or information and have the defendant enter his plea before the jury. The punishment hearing follows, with the court instructing the jury to find the defendant guilty and assess punishment. Verdict forms generally set out that the jury finds the defendant guilty.
Whether it is necessary to have the jury find the defendant guilty is not clear; however, it may be prudent. In addition, the Committee recommends that instead of separate guilt and punishment phase instructions, the jury should be given only one set of jury instructions that includes a combined verdict form, incorporating both the guilty finding and the jury’s recommended sentence. This is the procedure adopted in Holland v. State, 761 S.W.2d 307 (Tex. Crim. App. 1988). There, the defendant pleaded guilty to capital murder before a jury. He argued that it was error to instruct the jury to return a guilty verdict and then answer the special issues in the same jury instructions because it ruined the bifurcated nature of the proceedings. He argued there must be two separate deliberations or at least a separation of guilt from punishment. The court of criminal appeals stated that there was nothing wrong with the combined jury instructions: “it is proper for the trial judge in his charge to [1] instruct the jury to return a verdict of guilty, [2] charge the jury on the law as to the punishment issues, and then [3] instruct them to decide only those issues.” Holland, 761 S.W.2d at 313; see also Fairfield v. State, 610 S.W.2d 771 (Tex. Crim. App. 1981).
Holland appears to be the standard for the general practice of instructing juries on a “slow plea.” However, Fuller v. State, 253 S.W.3d 220 (Tex. Crim. App. 2008), indicates that no formal guilty verdict is necessary, even in a death penalty case. In Fuller, the trial court instructed the jury, orally and in writing, to find the defendant guilty, but the only verdict form submitted to the jury was for the special issues. No verdict on guilt was returned. The defendant argued that he did not receive a trial by jury. The court of criminal appeals stated that “[i]n all cases where a defendant enters a plea of guilty before a jury, no issue of the defendant’s guilt is submitted to the jury.” Fuller, 253 S.W.3d at 227 (quoting Brinson v. State, 570 S.W.2d 937 (Tex. Crim. App. 1978)). Despite Fuller’s holding, the court did not encourage the procedure the trial court had followed, noting that it “did not create the clearest format for the jury to follow.” Fuller, 253 S.W.3d at 227 n.24.
A final word of caution: trial judges should not (in the case of a slow plea) accept a defendant’s guilty plea outside the jury’s presence, as occurred in Guajardo v. State, No. 05-15-00365-CR, 2016 WL 1615609 (Tex. App.—Dallas Apr. 20, 2016, no pet.) (not designated for publication). While the court of appeals affirmed the conviction, it held the trial court was without authority to find the defendant guilty since, without a jury trial waiver, only a jury could find the defendant guilty. Thus, when a defendant has not waived his right to a jury trial in a felony, the guilty plea should be made to the jury, not to the court. See also In re State ex rel. Tharp, 393 S.W.3d 751 (Tex. Crim. App. 2012) (explaining that Tex. Code Crim. Proc. art. 37.07’s bifurcated procedure only applies to jury trials on a plea of not guilty).