Chapter 15
Preparatory Offenses
15.16 Instruction—Liability for Conspiracy—Affirmative Defense of Renunciation (Texas Penal Code Section 15.04(b))
[Insert instructions for underlying offense.]
Renunciation
It is [a/an] [affirmative] defense to conspiracy to commit murder that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the defendant withdrew from the conspiracy before commission of the murder and took further affirmative action that prevented the commission of the murder.
Burden of Proof
[Choose one of the following.]
Renunciation is an affirmative defense. That means the burden is on the defendant to prove renunciation by a preponderance of the evidence.
[or]
The burden is on the defendant to prove renunciation by a preponderance of the evidence.
Definitions
Intent to Commit a Murder
A person acts with the intent to commit a murder when the person has the conscious objective or desire to cause the death of another individual.
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.
Voluntary Renunciation of a Criminal Objective
Renunciation is not voluntary if it is motivated in whole or in part—
- by circumstances not present or apparent at the inception of the defendant’s course of conduct that increase the probability of detection or apprehension or that make more difficult the accomplishment of the objective, or
- by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim.
Application of Law to Facts
To decide the issue of renunciation, you must decide whether the defendant has proved, by a preponderance of the evidence, two elements. The elements are that—
- he withdrew from the conspiracy before any conspirator committed murder or caused the death of [name] and took further affirmative action that prevented the murder of [name], and
- the circumstances made it plain that the defendant voluntarily and completely renounced his criminal objective to murder [name].
You may decide that the defendant has proved elements 1 and 2 by a preponderance of the evidence only if you all agree that the defendant has proved both elements. If you find that the defendant has proved, by a preponderance of the evidence, both of the elements listed above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, each of the elements of the offense of conspiracy to commit murder, and you all agree the defendant has not proved, by a preponderance of the evidence, both of the elements listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]
Comment
The affirmative defense of renunciation is provided for in Tex. Penal Code § 15.04(b).
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.
Alternate Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word affirmative from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used, as well as the first selection under the burden of proof unit of the instruction.