Chapter 15
Preparatory Offenses
15.13 Instruction—Attempted Burglary of a Building—Punishment Mitigation by Quasi-Renunciation (Texas Penal Code Section 15.04(d))
You have found the defendant, [name], guilty of attempted burglary of a building. It is now your duty to assess punishment. Before you assess punishment, however, you must address a preliminary question. The range of punishments from which you must choose the defendant’s punishment depends on your answer to that question.
You must determine whether the defendant has proved that he renounced his criminal objective by a preponderance of the evidence.
Relevant Statutes
If the defendant proves that he renounced his criminal objective, this offense is punishable by—
- a term of imprisonment for no more than 180 days, or
- a term of imprisonment for no more than 180 days and a fine of no more than $2,000.
If the defendant does not prove that he renounced his criminal objective, this offense is punishable by—
- a term of imprisonment for no more than one year, or
- a term of imprisonment for no more than one year and a fine of no more than $4,000.
Burden of Proof
The burden is on the defendant to prove that he renounced his criminal objective by a preponderance of the evidence.
Definition
Preponderance of the Evidence
The term “preponderance of the evidence” means the greater weight of credible evidence presented in this case. For a fact to be proved by a preponderance of the evidence, you must find that the fact is more likely true than not true.
Application of Law to Facts
You must determine whether the defendant has proved, by a preponderance of the evidence, both elements of renunciation of the criminal objective. The elements are that—
- he abandoned his criminal conduct before the intended criminal offense was committed, and
- he made substantial effort to prevent the commission of the intended offense.
You must all agree on whether the defendant has proved this before you may assess punishment. Your resolution of this issue will determine which of the two verdict forms you will use. If you all agree the defendant has proved that he renounced his criminal objective, use the first verdict form, titled “Verdict—Defendant Has Proved Renunciation of Criminal Objective.” If you all agree the defendant has not proved that he renounced his criminal objective, use the second verdict form, titled “Verdict—Defendant Has Not Proved Renunciation of Criminal Objective.”
If you all agree the defendant has proved, by a preponderance of the evidence, that he renounced his criminal objective, you are to determine and state in your verdict—
- a term of imprisonment for no more than 180 days, or
- a term of imprisonment for no more than 180 days and a fine of no more than $2,000.
If you all agree the defendant has not proved, by a preponderance of the evidence, that he renounced his criminal objective, you are to determine and state in your verdict—
- a term of imprisonment for no more than one year, or
- a term of imprisonment for no more than one year and a fine of no more than $4,000.
VERDICT—DEFENDANT HAS PROVED RENUNCIATION OF CRIMINAL OBJECTIVE
We, the jury, having found the defendant, [name], guilty of the offense of attempted burglary of a building, all agree that the defendant has proved that he renounced his criminal objective. We assess the defendant’s punishment at: (select one)
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VERDICT—DEFENDANT HAS NOT PROVED RENUNCIATION OF CRIMINAL OBJECTIVE
We, the jury, having found the defendant, [name], guilty of the offense of attempted burglary of a building, all agree that the defendant has not proved he renounced his criminal objective. We assess the defendant’s punishment at: (select one)
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Comment
Punishment mitigation is provided for in Tex. Penal Code § 15.04(d).
Defining “Preponderance of the Evidence.” The Penal Code does not define “preponderance of the evidence.” While terms left undefined by the legislature should generally remain so in the charge, there is an exception for terms that have a known and established legal meaning. See Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) (inappropriate for jurors to apply own definitions of “arrest”). The court of criminal appeals has not determined whether “preponderance of the evidence” qualifies under this exception, but it long ago upheld an insanity instruction defining preponderance as “the greater weight of credible testimony.” McGee v. State, 238 S.W.2d 707, 716 (Tex. Crim. App. 1950) (op. on reh’g). Unlike the more common “reasonable doubt” standard—which it is better not to attempt to define, Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000)—further explanation of the term “preponderance” may be of appreciable help to jurors. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (per curiam) (finding no error in judge’s explanations to counter venire’s confusion between clear-and-convincing and preponderance standards). The “greater weight” or “greater weight and degree” definitions have long been used in both civil and criminal jury charges. See, e.g., Harrell v. State, 65 S.W.3d 768, 772 n.2 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (voluntary release in safe place of kidnapping victim); Watts v. State, 680 S.W.2d 667, 672 (Tex. App.—Fort Worth 1984, pet. ref’d) (defense of insanity); Benton v. State, 107 S.W. 837, 838 (Tex. Crim. App. 1908) (jury charge on former jeopardy). That definition is part of the instruction on preponderance of the evidence required in civil cases. Tex. R. Civ. P. 226a (defining preponderance as “the greater weight of credible evidence presented in this case” and explaining that a fact must be “more likely true than not true” to be proved by a preponderance). The Committee thus concluded it would not be error to define the term for jurors and may frequently be helpful.