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My AccountChapter 8
- 8.1 Categorizing Defenses
- 8.2 Burdens of Proof and Production under Texas Penal Code Chapter 2
- 8.3 Explaining to Jury State’s Burden of Proof on Defenses
- 8.4 Nonstatutory Defensive Positions and Jury Instructions
- 8.5 Instructions on Inconsistent Defenses
- 8.6 “Confession and Avoidance”: Need to Admit Offense
- 8.7 Failure to Instruct on Defense Cannot Be “Fundamental” Error
- 8.8 Defendant’s Right to Have No Instruction on Defense
- 8.9 Relationship of Necessity to Other Defensive Positions
- 8.10 Insanity Generally
- 8.11 Consequences of Insanity Acquittal
- 8.12 Defining “Wrong”
- 8.13 Defining “Severe Mental Disease or Defect”
- 8.14 Instruction—Insanity
- 8.15 Diminished Capacity Generally
- 8.16 Basic Framework for Mistake of Fact under Texas Law
- 8.17 Pre-1974 Texas Mistake-of-Fact Law
- 8.18 Other Jurisdictions and Potential Constitutional Problem
- 8.19 Possible Alternative Approach—Two Mistake-of-Fact Defenses
- 8.20 Reasonableness of Mistake as Matter for Court Rather Than Jury
- 8.21 Committee’s Approach
- 8.22 Instruction—Mistake of Fact
- 8.23 Texas Penal Code Distinction between Mistakes of “Fact” and Mistakes of “Law”
- 8.24 Instruction—Mistake of Law
- 8.25 Voluntary Intoxication Generally
- 8.26 Instruction—Voluntary Intoxication
- 8.27 Involuntary Intoxication Generally
- 8.28 The Committee’s Approach to Involuntary Intoxication
- 8.29 Instruction—Involuntary Intoxication
- 8.30 General Law of Duress
- 8.31 Instruction—Duress (Felony)
- 8.32 Instruction—Duress (Misdemeanor)
- 8.33 Entrapment Generally
- 8.34 Status of “Informers”
- 8.35 Instruction—Entrapment
Comment
Unfortunately, the statutory provisions defining both affirmative defenses and defenses generally often appear to have been drafted in terms that assume the party raising the matter has the burden of proving them.
This highlights the most difficult task in drafting jury instructions regarding defenses. With regard to defenses generally, the terms of the Penal Code must be translated into what the state must prove in order to clarify for juries the substance of the state’s burden of proof.
Traditionally, Texas jury instructions have ignored this difficulty. Juries have been instructed in the statutory terms clearly assuming the burden of persuasion to be on the defendant. They have then essentially been told to acquit if they find the facts as required by the defense, phrased in terms of the burden of persuasion’s being on the defendant, or if they have a reasonable doubt “thereof.” In Crippen v. State, 189 S.W. 496, 498 (Tex. Crim. App. 1916), for example, the application portion of the self-defense instruction was—
If you believe that the defendant committed the assault as a means of defense, believing at the time he did so (if he did do so) that he was in danger of losing his life or of serious bodily injury at the hands of said J. R. Spillers, then you will acquit the defendant, and say by your verdict, “Not guilty,” or if you have a reasonable doubt thereof, you will acquit him.
“This did not shift the burden of proof to appellant, nor ignore the doctrine of reasonable doubt as applied to a defense . . . .” Crippen, 189 S.W. at 498.
This form of instruction continues to be widely used and accepted by the appellate courts. Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979) (instruction not error where it “required the jury to acquit appellant if they believed that he was acting in self-defense or the jury had a reasonable doubt thereof”); Wilkerson v. State, 920 S.W.2d 404, 406 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (“If the issue of the existence of self-defense is submitted to the jury, the court shall charge the jury that if it believes that the defendant was acting in self-defense or has a reasonable doubt thereof, it must acquit the defendant.”).
The Committee concluded that this approach did not adequately identify the burden of proof on the state. More important, it did not specify what this burden of proof meant, that is, what in these cases the state must prove.
Therefore, when a matter of defense places a burden on the state, the Committee attempted to draft an instruction that makes clear what the state has to prove to prevail. Sometimes this required taking some liberty with the statutory language, but the Committee believed this is necessary in formulating instructions that clearly communicate the burden of proof.