the court shall charge the jury in terms of the presumptions and specific element to which it applies as follows:
• The facts giving right to the presumption must be proved beyond a reasonable doubt.
• That such facts are proven beyond a reasonable doubt. If such facts are proven beyond a reasonable doubt, the jury may find that the element of the offense ought to be presumed exist, but is not bound to self find.
• And even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged.
• If the jury has a reasonable doubt as to the existence of a fact of facts giving, fact or facts excuse me, giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.
Okay? I’m kind of moving quickly through this – I don’t think I’m going to take up my time, I know that will break you Al’s heart today but I realize the hours is late. In my paper I have talked about the, state of fact, the other affirmative defenses. Okay! Now I want to talk about the harmless error in the Almanza doctrine. We skip through here. Okay!
Affirmative defenses. Standards of review, let’s talk about that;
Four affirmative defenses exist under Texas law, according to Meraz and Pender;
• Mistake of law
• Defense to criminal responsibility of a corporation or association
• The accused is required to establish an affirmative defense by a preponderance of the evidence.
Like I talked about earlier, the rejection of an affirmative defense is also weighed by that civil standard.
Okay! The Standard of review for affirmative defenses. The standard for reviewing affirmative defenses on appeal is whether the judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. We hear that again and again.
Reasonable Belief is based on Penal Code Sec 1.07(a)(42), Mistake of Fact is in Texas Code Sec. 8.02(a)
I urge you to look at the Texas Criminal pattern jury charges, look at McClung’s, look at Texas practice, look at forms whenever you can if your having difficulty coming up with a jury charge or you don’t like the one the chalk has provided for you.
Okay! now harmless error;
Whenever it appears by the record in any criminal action upon appeal that any requirement of these articles surrounding jury charges has been disregarded, the judgment shall not be reversed unless the error appearing from the record, was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of trial. That’s Almanza basically, right there Article 36. 19.
The accused must preserve error and demonstrate harm. In Federal Court, we call it plain error. That’s objected to an error that is so fundamental that you don’t have to have an objection. Well, that’s pretty rare. In Texas, were seeing that’s not happening very often, not with our high courts.
Fundamental Error in Texas we call it structural error. Again, that’s really really difficult; it’s really difficult to show structural error. Okay! Again Article 36. 19 talks about if the error was calculated to injure the defendant’s rights so that he does not have a fair and impartial trial.