Unanimity Requirement in Jury Charge

Ok, jury unanimity! That’s very important when you have different manner and means. But the court of criminal appeals has been very consistent in holding that the jury does not have to agree on the manner and means. They only have to agree on the gravamens of the offense which really kind of flies in the face of common sense but, that is the law. Ok. Ok. Different offenses have to allege in different paragraphs. Excuse me, different counts! Ok? I know we’re all a little tired right now. But I’ve seen courts of appeals very confused on counts versus manner and means. A count is like count one, murder, count, two, might be robbery. Two different people, ok? Those are 2 separate offenses. But when you’re talking about manner and means strangling with the ligature, stabbing with a knife, or shooting with a gun; you’re talking about manner and means. So you would have: offense, ok count 1, and then you would have paragraph A, B and C, different ways.

So paragraphs are your manner and means, counts are the different offenses. We talked about focus of the offending gravamen. The appellate courts are only concerned with the gravamen of the offense. Ok? That is result oriented crime fight murder. That means you have to intend the result, not just the conduct. Now the court of criminal appeals, some of us are old enough to remember ‘Geesa’ I think Charlie Bare wood Geesa, a wonderful case that told the jury that if you have a doubt that we caused you to hesitate in the mis seriousness of affairs, something like that, then that’s the reasonable doubt! Well, the court of criminal appeals Paulson versus state in the year 2000 reversed Geesa. The jury is never charged on what the reasonable doubt means, it’s whatever they wanted to mean. So what do we do with that? I think that Mark’s suggestion of using that stair step and comparisons beyond a reasonable doubt with clearing convincing etc. I think that’s a really good way to explain it to the jury since you will not get a jury charge on that. Now, if the state and defense agreed to submit the Geesa instruction you can!

Now, I don’t know any prosecutors in the 4 or 5 county area I practice in that would agree to that. But maybe you’re fortunate and you can get someone to agree with you. I’ve never seen it. Conclusive irrefutable… I can’t talk I’m so tired I haven’t had a beer, conclusive irrefutable presumptions are unconstitutional. For example in 2202 ©. That is a rebuttable presumption but what that is, that has to do with killing of police officer and you know what’s a police officer, because he was in his distinctive uniform; that’s what 2202C talks about. Ok you can’t, the state cannot give jury charges based on the natural or probable results of their conduct. No! Those are not allowed. It’s unconstitutional to instruct a jury that the law presumes to intent the kill where deadly weapon was used or that the law presumes that a person intents the natural improbable consequences of his conduct. That’s a burden shifting. Ok, so read your jury charges. Make sure language like that is not in there. Also, instructing the jury that it can make inferences from various pieces of evidence can constitute a comment on the weight of evidence. So, the jury can make just reasonable deductions from the evidence, but they cannot decide issues based on speculation. That’s basically what that [inaudible] means.

Mandatory rebuttable presumptions! I know it sounds like Rebacken law school, doesn’t it? Jury instruction that shift the burden of proof as to any element of an offense to the defendant is constitutionally infirm instructions shifting the burden of persuasion on the element of intent after State proves the predicate acts violates of 14th amendment and creates a mandatory rebuttable presumption. The following instruction was ruled unconstitutional in Francis versus Franklin: the acts of a person of sound mind and discretion are presumed to be the product of a person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted. Ok, that was found unconstitutional. That was burden shifting. Ok, Section 2.05 of the Texas Penal Code provides that when the Penal Code or another penal law establishes a presumption with respect to any fact, it has the following consequences: if there’s sufficient evidence of the facts that give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact. What does that mean? I’m not sure. Honestly, I’m really not sure what that means.