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My AccountChapter 1
- 1.1 General Matters
- 1.2 Jury Instructions in Criminal Cases—Terminology and Structure
- 1.3 Prohibition against Commenting on Evidence, Summarizing Testimony, and Discussing Facts
- 1.4 Analyses from Appellate Opinions
- 1.5 Definitions of Terms
- 1.6 Burden of Proof
- 1.7 Jury Charges on Presumptions
- 1.8 Jury Unanimity
- 1.9 Venue
Comment
“Charge” vs. “Instruction.” The Texas Code of Criminal Procedure directs that before counsel argue to the jury in a criminal trial, “the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case.” Tex. Code Crim. Proc. art. 36.14.
In practice, the document submitted to the jury is generally styled a “charge” and is referred to as such by lawyers and judges.
The Committee concluded that attempting to communicate with juries using this “legalese” would only increase the already high risk of confusion. Consequently, the Committee decided to abandon the traditional term “charge” and instead refer to the document to be read and provided to the jury as the “instruction.”
Abstract Statement of Law and Application to Facts. Jury instructions in criminal trials have long included both abstract recitations of the applicable law and application of that law to the facts of the particular case. The Texas court of criminal appeals explained:
Our Legislature has made clear that a trial judge’s charge to the jury must set forth “the law applicable to the case.” Relying on that statute, we have held that “[a] trial court is required to fully instruct the jury on the law applicable to the case and to apply that law to the facts presented.” It is not enough for the charge to merely incorporate the allegation in the charging instrument. Instead, it must also apply the law to the facts adduced at trial. This is because “[t]he jury must be instructed ‘under what circumstances they should convict, or under what circumstances they should acquit’.” Jury charges which fail to apply the law to the facts adduced at trial are erroneous.
Gray v. State, 152 S.W.3d 125, 127–28 (Tex. Crim. App. 2004) (alterations in original) (footnotes omitted) (citations omitted).
Application of the law to the facts is required because only by providing the jury with this framework can the courts respect the rights of the parties to a fair determination of the issues. Explaining the rule that an unapplied abstract presentation of a theory of liability does not authorize a jury to convict on that theory, the court of criminal appeals noted:
This rationale is founded upon the notion that a charge which contains an abstract paragraph on a theory of law, but does not apply the law to the facts, deprives the defendant of “a fair and impartial trial.” Harris v. State, 522 S.W.2d 199, 202 (Tex.Cr.App.1975), citing Fennell v. State, 424 S.W.2d 631 (Tex.Cr.App.1968). This type of error “in the charge goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted.” Harris, 522 S.W.2d at 202, and cases cited therein.
Jones v. State, 815 S.W.2d 667, 670 (Tex. Crim. App. 1991).
Defensive and Other Matters. The requirement of application of abstract law to the situation before the jury applies not only to the elements of the charged offense and theories of liability but also to defensive matters. E.g., Stewart v. State, 77 S.W. 791, 792 (Tex. Crim. App. 1903) (trial court erred in failing to apply abstract law of insanity “to the particular offense for which [the defendant] was being tried”).
It also applies to other matters left to the jury, such as the need for corroboration of the testimony of an accomplice. E.g., Armstrong v. State, 26 S.W. 829, 830 (Tex. Crim. App. 1894) (“The instructions upon [accomplice testimony] should be like all others. They should be applied to the facts bearing upon the issue.”).
Committee’s Approach. The Committee agreed that current law clearly and appropriately requires that the jury instructions for criminal trials both set out the law in the abstract and apply that law to the facts of the case. The Committee attempted to continue this approach and also attempted to make the purpose of the various portions of the instructions clearer.
With regard to defensive matters, the Committee considered two possible approaches. Some members wanted to incorporate those defensive matters on which the state has the burden of proof into a penultimate application paragraph that would make negation of the defensive matter essentially an element of the offense.
The Committee finally opted for the approach used in the instructions as presented in this product. This approach embodies the following:
The Committee concluded that this approach would distinguish between the elements of the offense and defensive matters but still make clear that in certain cases a defensive matter, like an element of the offense, establishes things that the prosecution must prove to permit conviction.