Chapter 21
Sexual Offenses
21.36 Instruction—Improper Relationship Between Educator and Student—Affirmative Defense of Minimal Age Difference and Prior Relationship
[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 minimal age difference.
Minimal Age Difference
It is [a/an] [affirmative] defense to the offense of improper relationship between educator and student that, at the time of the conduct—
- the person was not more than three years older than the [student/enrolled person]; and
- the person and the [student/enrolled person] were in a relationship that began before the person’s employment at a [public/private] [primary/secondary] school.
Burden of Proof
[Choose one of the following.]
Minimal age difference is an affirmative defense. That means the burden is on the defendant to prove minimal age difference by a preponderance of the evidence.
[or]
The burden is on the defendant to prove minimal age difference by a preponderance of the evidence.
Definitions
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 minimal age difference, you must decide whether the defendant has proved, by a preponderance of the evidence, two elements. The elements are that, at the time of the conduct alleged, the defendant—
- was not more than three years older than [name]; and
- was in a relationship with [name] that began prior to the defendant’s employment at a [public/private] [primary/secondary] school.
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 improper relationship between educator and student, and that the defendant has not proved, by a preponderance of the evidence, both elements of the minimal age difference defense listed above, 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.]
Alternative Language for Affirmative Defenses. The Committee concluded that when an affirmative defense is the only defense raised in a trial, jurors are not usually aided by use of the technical term. It typically only has meaning to jurors when used in comparison to a non-affirmative defense. As a result, trial judges have the option of dropping the word “affirmative” from the instruction. Where any party prefers the technical term, or when both a defense and an affirmative defense are submitted in the same trial (such as with necessity and duress), the bracketed “affirmative defense” language should be used as well as the first selection under burden of proof unit of the instruction.
Comment
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.