Comment

Major issues for the Committee were determining which analyses in appellate opinions were strictly off-limits as possible jury instructions and, for those that were not off-limits, determining the extent to which those analyses should be incorporated into instructions.

The court of criminal appeals has made it clear that appellate decisions contain some analyses that should not be included in trial court jury instructions. This exclusion is at least in part because including certain analyses would constitute a statutorily prohibited comment on the evidence.

Further, for example, “[t]he ‘presumption’ of intent to commit theft arising from non-consensual nighttime entry is an appellate vehicle employed to review the sufficiency of the evidence, not a trial vehicle used to prove an element of the State’s case,” the court of criminal appeals noted without explanation in Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) (footnote omitted). Clearly, jury instructions should not include this presumption.

Aguilar and similar cases, the court explained in Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003), apply the prohibition against comment on the evidence as imposing a strict rule: “Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis.” Brown, 122 S.W.3d at 799.

Brown suggested the prohibition bars jury instructions on not only presumptions but also other “non-statutory . . . ‘vehicles employed to review the sufficiency of evidence.’ ” Brown, 122 S.W.3d at 799 (quoting Aguilar, 682 S.W.2d at 558).

Other appellate opinions, however, particularly those resolving challenges to the sufficiency of the evidence, contain discussions that might help jurors address sufficiency of the evidence as an initial matter. Thus, Judge Chuck Miller, author of the Aguilar opinion, suggested in another case that appellate discussions or rules defining the minimal evidence required to convict should be communicated to juries. See Golden v. State, 851 S.W.2d 291, 296 (Tex. Crim. App. 1993) (Miller, J., concurring).