Chapter 22
Assaultive Offenses
22.15 Instruction—Injury to Child—Affirmative Defense of Family Violence
[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 family violence.
Family Violence Defense
It is a defense to the offense of injury to a child by omission that—
- the person did not by his own act cause serious bodily injury; serious mental deficiency, impairment, or injury; or bodily injury to the child; and
- the person was a victim of family violence committed by another who is also charged with an offense against the child under title 5 of the Texas Penal Code; and
- the person did not reasonably believe at the time of the omission that an effort to prevent the other, also charged with an offense against the child, from committing the offense would have an effect; and
- there is no evidence that on the date prior to the offense proved in this case the person was aware of an incident of injury to the child and failed to report the incident.
Burden of Proof
[Choose one of the following.]
The family violence defense is an affirmative defense. That means the burden is on the defendant to prove the family violence defense by a preponderance of the evidence.
[or]
The burden is on the defendant to prove the family violence defense by a preponderance of the evidence.
Definitions
Family Violence
The term “family violence” means an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the family member in fear of imminent physical harm, bodily injury, assault, or sexual assault.
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 the family violence defense, you must determine whether the defendant has proved, by a preponderance of the evidence, four elements. The elements are that—
- the defendant did not cause serious bodily injury; serious mental deficiency, impairment, or injury; or bodily injury;
- the defendant was a victim of family violence committed by [name], who is also charged with [specify offense charged] against another person, [name];
- the defendant did not reasonably believe at the time of the omission that an effort to prevent [name] from committing the offense against [name] would have an effect; and
- there is no evidence that on the date prior to the offense proved in this case the defendant was aware of an incident of injury to [name] and failed to report the incident.
If you all agree the defendant has proved, by a preponderance of the evidence, each of the four 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, each of the four elements of the affirmative defense of family violence 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.]
Family Violence. The definition of family violence, as required by Tex. Penal Code § 22.04(l)(2)(B), is derived from Tex. Fam. Code § 71.004. This section of the Family Code includes other elements, such as dating violence, that may need to be added to the definition in this instruction if facts concerning the definition are at issue.
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.
Comment
Affirmative Defense. Texas Penal Code section 22.04(l)(2) provides for an affirmative defense for the situation in which the defendant, who is charged with failing to prevent another from injuring the victim, claims abuse of the defendant by the person who injured the victim by his or her own hand. The provision is as follows:
Tex. Penal Code § 22.04(l)(2). The requirement in section 22.04(l)(2)(B)(ii) that the defendant prove he or she “did not cause a condition described by Subsection (a)(1), (2), or (3)” is problematic. Those subsections describe “(1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; [and] (3) bodily injury.” Tex. Penal Code § 22.04(a)(1)–(3). What section 22.04(l)(2)(B)(ii) seems to mean is that the defendant must prove that the injuries—the conditions described by subsections (a)(1), (2), and (3)—were caused by the affirmative actions of the person the defendant claims is his abuser rather than by any affirmative actions (as contrasted with omissions) of the defendant.
The legislature apparently meant to create an affirmative defense for the defendant who failed to intervene to prevent a family member from causing the injury when the defendant was the victim of family violence inflicted by the family member and did not believe that an effort to prevent the family member from causing the harm would have an effect.