Comment

The members of the Committee differed in opinion on the extent to which the Committee should attempt to define terms if the statutes do not provide clearly applicable definitions.

General Limited Need to Define Terms in Jury Instructions. Part of the applicable law is quite clear. In 1983, the court of criminal appeals observed that “in the more recent past this Court has subscribed to the rule that if a word, term, or phrase had not at the time of trial been statutorily defined, there is no requirement to define that word, term, or phrase in the court’s charge.” Andrews v. State, 652 S.W.2d 370, 375 (Tex. Crim. App. 1983).

Twenty years later, the court explained:

Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003).

Trial Court’s Discretion to Define Terms. That a trial court is not required to define a term does not mean that it cannot or should not do so. One court of appeals observed:

Mori v. State, No. 05-97-00166-CR, 1999 WL 57764, at *5 (Tex. App.—Dallas Feb. 9, 1999, pet. ref’d) (not designated for publication).

In Andrews, the court of criminal appeals addressed whether the trial court erred in failing to define “prurient interest.” Although holding that “we are unable to conclude that the lack of a definition for the term caused appellant to be denied and deprived of a fair and impartial trial by jury,” the court added, “it would not have been error had the trial court given a definition for the term.” Andrews, 652 S.W.2d at 377.

Courts of appeals have held—consistent with Andrews—that a trial court has discretion to define terms as long as the definitions are correct. See Walls v. State, No. 01-99-00714-CR, 2001 WL 83548, at *7–8 (Tex. App.—Houston [1st Dist.] Feb. 1, 2001, pet. ref’d, untimely filed) (not designated for publication) (trial court did not err in instructing jury on definition of “fiduciary” taken from Black’s Law Dictionary); Mori, 1999 WL 57764, at *4–5 (trial court did not err in instructing jury, “ ‘Normal use’ as used herein means the manner in which a normal non-intoxicated person would be able to use his mental or physical faculties.”).

Definitions Approved. In several other contexts, the court of criminal appeals appears to have at least implicitly approved of jury instructions containing definitions going beyond the statutory language that is explicitly a part of or incorporated into the definition of the offense.

For example, in prosecutions for the offense of escape, the court held that the jury is not free to employ any meaning that is “acceptable in common parlance” for the term arrest. Warner v. State, 257 S.W.3d 243, 247 (Tex. Crim. App. 2008); Medford v. State, 13 S.W.3d 769 (Tex. Crim. App. 2000). This certainly suggests that the instructions in such cases should contain an acceptable definition of arrest.

Further, in Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008), the court approved use of the definition of death from Tex. Health & Safety Code § 671.001(a)(b) in appellate review of evidence sufficiency in homicide cases. This leaves little doubt that jury instructions in such cases would properly cover this definition.

Definitions from Appellate Evidence Sufficiency Analyses. The court of criminal appeals, in Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012), has recently drawn a clear distinction between defining terms in assessing the sufficiency of evidence on appeal and instructing a jury at trial. “[A]lthough an appellate court may articulate a definition of a statutorily undefined, common term in assessing the sufficiency of the evidence on appellate review, a trial court’s inclusion of that definition in a jury charge may constitute an improper comment on the weight of the evidence.” Kirsch, 357 S.W.3d at 651.

Committee’s Approach. Some Committee members believed strongly that the Committee should consider when definitions of terms would, as a general matter, be useful and then formulate definitions for those terms. They concluded that the law allows this and that sound criminal justice policy supports it.

A majority of the Committee, however, opted in favor of more restraint. The majority’s position was based in part on the difficulty of providing accurate definitions and the costs involved if the Committee were to suggest a definition later disapproved by the appellate courts. In addition, the majority’s view was based on the perception that the spirit, if not the actual letter, of the prohibition against commenting on the evidence militated against aggressive development of definitions. Definitions are seldom fully neutral, the majority reasoned, and thus would implicitly adopt a view on potentially contested issues and communicate that view to juries.