Comment

Since article 626 of the original Code of Criminal Procedure was enacted in 1856, Texas statutory law has required that the jury verdict be either “guilty” or “not guilty.” The task of the jury, however, is not to determine whether the accused is in fact “not guilty.” Rather, the jury is to determine only whether the accused has not been proved guilty beyond a reasonable doubt.

This situation poses the question of how to explain to juries matters on which the state has the burden of proof while complying with the Code’s requirement that the ultimate verdict be either “guilty” or “not guilty.”

“Reasonable Doubt” Approach. The practice developed early of describing controlling matters and then instructing the jury to acquit if it found those matters in favor of the defendant or had a reasonable doubt regarding them. See Jenkins v. State, 41 Tex. 128 (1874) (“If . . . you are of opinion that Jenkins is not guilty of murder in the first degree, or if you have a reasonable doubt thereof, you will then inquire if Jenkins is guilty of murder in the second degree.”).

This was applied to what are often regarded as “defenses” or defensive matters. In Boddy v. State, 14 Tex. Ct. App. 528 (1883), for example, the self-defense instruction first told the jury in detail when the law permitted an attacked person to protect himself “by his own arm.” It then added, “If the defendant was attacked by Charles Burns in such a manner that it produced in the defendant’s mind a reasonable expectation or fear of death, or of some serious bodily injury, and you so find or have a reasonable doubt thereof, you will acquit him.” Boddy, 14 Tex. Ct. App. at 539.

This approach, then, first sets out the law in abstract terms that suggest—but do not actually state—that the burden of persuasion is on the person invoking the doctrine. At the end, it attempts to accommodate the actual placement of the burden of proof by telling the jurors to acquit the defendant if they affirmatively find the defendant acted within the legal requirements or “have a reasonable doubt thereof.”

The drafting approach used in Boddy has been uncritically followed up to the present. It has apparently been used because of the need to tell the jury that its task is to choose between “guilty” and “not guilty,” even though it need not actually conclude that the accused is “not guilty” to return that verdict.

To some extent, this approach has been embodied in the Penal Code. Section 2.03 implicitly makes clear that with regard to “defenses” in the Penal Code and other grounds of defense in penal law, the burden of proof is on the state. This is explicitly reflected in the statutory directive that “the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.” Tex. Penal Code § 2.03(d).

Committee’s Approach. The Committee concluded that the above approach to phrasing the analysis required by juries is unnecessarily confusing. Moreover, it tends to emphasize the question of whether the jury finds the accused “not guilty” over the question of whether it has a reasonable doubt whether the defendant has been proved guilty.

This is particularly important regarding defensive matters. If a defendant raises a matter that under chapter 2 of the Penal Code is treated as a defense, it has the effect of adding to those things the prosecution must prove beyond a reasonable doubt.

The Committee therefore attempted to draft instructions that specified clearly and precisely, for those situations in which a defensive matter has been raised, what the state must prove beyond a reasonable doubt to be entitled to prevail.