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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
The Texas Code of Criminal Procedure prohibits a trial judge, in the process of instructing the jury, from “expressing any opinion as to the weight of the evidence.” Tex. Code Crim. Proc. art. 36.14. The court of criminal appeals has indicated that this bars trial judges from instructing juries concerning defensive arguments as to why the state has failed to meet its burden of proof if those arguments have not been explicitly authorized by a statutory provision.
The leading decision, of course, is Giesberg v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (“Since a defensive issue of alibi is adequately accounted for within a general charge to the jury, a special instruction for the issue of alibi would needlessly draw a jury’s attention to the evidence which raised alibi.”). Giesberg holds that a defendant is not entitled to an instruction on alibi. Further, it clearly announces the court’s view that a trial judge errs in giving such an instruction because that instruction violates the state’s right under article 36.14 to have the trial judge avoid any comment on the evidence. Giesberg, 984 S.W.2d at 250.
In Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007), in an opinion joined by all eight judges participating in the case, the court reaffirmed the approach taken in Giesberg. In a section of the opinion titled “B. The law: Jury instructions on defensive issues,” the court explained that, under Giesberg, “we have held that a defendant is not entitled to a defensive charge on accident, good faith, alternative cause, independent impulse, or suicide under the 1974 Penal Code.” Walters, 247 S.W.3d at 210 (footnotes omitted).
Generally, then, under Giesberg and Walters, an instruction on a failure-of-proof defense is permissible only if that defense is specifically embodied in a statute. The only general statute embodying such a defense appears to be section 8.02 of the Penal Code, recognizing mistake of fact.
A major remaining question is whether article 36.14, as construed in Giesberg and Walters, has the flexibility to at least permit jury instructions on nonstatutory failure-of-proof defenses or defensive theories where the courts conclude the nature or complexities of the situation present an unusually high risk of jury confusion.