Chapter 22
Assaultive Offenses
22.14 Instruction—Injury to Child—Affirmative Defense of Religious Treatment
[Insert instructions for underlying offense.]
If you all agree the state has proved, beyond a reasonable doubt, each of the five elements listed above, you must next consider whether the defendant is not guilty because of the [affirmative] defense of religious treatment.
Religious Treatment
It is [a/an] [affirmative] defense to the offense of injury to a child that—
- the act or omission was based on treatment; and
- the treatment was in accordance with the tenets and practices of a recognized religious method of healing; and
- the religious method of healing had a generally accepted record of efficacy.
Burden of Proof
[Choose one of the following.]
Religious treatment is an affirmative defense. That means the burden is on the defendant to prove religious treatment by a preponderance of the evidence.
[or]
The burden is on the defendant to prove religious treatment 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 religious treatment, you must determine whether the defendant has proved, by a preponderance of the evidence, three elements. The elements are that—
- the act or omission was based on treatment;
- the treatment was in accordance with the tenets and practices of a recognized religious method of healing; and
- the religious method of healing had a generally accepted record of efficacy.
If you all agree the defendant has proved, by a preponderance of the evidence, each of the three elements listed above, 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 injury to a child, and you all agree the defendant has not proved, by a preponderance of the evidence, all three elements of the affirmative defense of religious treatment 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.]
Comment
Affirmative Defense—Religious Treatment under Section 22.04(l)(1). Texas Penal Code section 22.04 includes the following affirmative defense:
Tex. Penal Code § 22.04(l)(1).
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.
Alternate 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 the burden of proof unit of the instruction.