Chapter 21
Sexual Offenses
21.16 Instruction—Indecency with Child—Affirmative Defense of Marriage
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the [number] elements listed above, you must next consider whether the defendant is not guilty because of the [affirmative] defense of marriage.
Marriage
It is a defense to the offense of indecency with a child that the person was the spouse of the child at the time of the offense.
Burden of Proof
[Choose one of the following.]
Marriage is an affirmative defense. That means the burden is on the defendant to prove marriage by a preponderance of the evidence.
[or]
The burden is on the defendant to prove marriage by a preponderance of the evidence.
Definitions
[If there is a fact question concerning the existence of a marriage, the following definition should be modified to cover the facts at issue.]
Spouse
“Spouse” means a person to whom a person is legally married.
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.
Application of Law to Facts
To decide the issue of marriage, you must determine whether the defendant has proved, by a preponderance of the evidence, that he was the spouse of [name] at the time of the offense.
If you all agree the defendant has proved this defense by a preponderance of the evidence, 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 indecency with a child, and you all agree the defendant has not proved this affirmative defense by a preponderance of the evidence, 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
Legislation in 2009 removed that element of the offense consisting of proof that the victim was not the defendant’s spouse and made the spousal relationship an affirmative defense. Tex. Penal Code § 21.11(b–1). This change applies at the trial for an offense committed on or after the effective date of the legislation. Acts 2009, 81st Leg., R.S., ch. 260, § 2 (H.B. 549), eff. Sept 1, 2009.
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.