Now defensive theories! This is where I think some prosecutors get tripped up sort of like Brady, ok! Trial court who are former prosecutors and never done anything else like some of them in Bare County. They tend to think that if the evidence is unbelievable or they think it’s stupid or they don’t like it, that you’re not entitled to a jury charge on your issue, on your defense issue. That’s not true! That is not up to the trial court, of course I’m talking about; jury trials coz theses are jury charges but that is not up to your trial judge and it’s not up to the prosecutor. Any evidence from anywhere whether it’s believable or not, raises your issue! Hammer it, make sure you get a charge on it, don’t accept no for an answer. What you need to remember also is that any jury charges you want, you must submit in writing to the trial court, that’s a new answer I’ve really started noticing from the Court Of Criminal Appeals and a variety of Courts of Appeals, if you have not submitted you jury charge in writing, it’s going to be over ruled on appeal though say it’s not properly preserved. And if the court does give a charge on something however, it has to be correct and we’re going to talk about problems with the jury charge. Now when I’m on most hated cases in my entire life and the 25 years I’ve been practicing law is malic! How many people are familiar with malic? I call it malic the horrible, it’s the dumbest case ever read, ok! Does anybody agree with me? Yea! May be, it is stupid! Ok, it is stupid.
Let me explain why I think that. Ok Malic says that “If there’s problems in your jury charge, the appliqué court is going to way the sufficiency by a hypothetically correct jury charge” ok! Not based on the indictment what Benson and Busser used to tell us, it’s going to be based on the hypothetically correct jury charge. What the hell is that! Ok why am I giving you their definition. Ok! A hypothetically correct jury charge, such charge would be one that accurately fits out the law is authorized by the indictment does not unnecessarily increase the state’s burden of proof unnecessarily restrict the state’s theories of liability and adequately describes the particular offense for which the defendant was tried. Ok, anything about defense rights in there? May be? No! How do you know what the jury relied on, if your jury charge’s messed up, that’s why Malic makes no sense to me. Ok, so I urge you to be careful with your jury charges and keep a solid eye on it because sufficiency will be measured as if the jury charge as correct!