Starting at the End: The Court’s Charge to the Jury

I. Introduction

Handling appeals can be frustrating. It’s frustrating when there is error but it’s harmless. It’s frustrating when the appellate court cites waiver. But good news! Jury charge error is still alive and well. If you remember nothing else from this article, just remember to object to the court’s charge every chance you get.

II. Before you Begin, Start at the End

It is commonly referred to with tiresome clichés such as “road map,” “directions,” and “instructions” for the jury. It is familiar to every trial lawyer. The court’s charge to the jury is a specific set of legal instructions given by the judge. It is the law the jury will apply to the facts of the case. The court’s charge to the jury is where affirmative defenses, definitions, justifications, lesser-included offenses and limiting instructions are found.

The trial judge is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.”1 However, while the Code of Criminal Procedure imposes the duty of delivering the charge on the trial court, in reality the trial court typically has the lawyers draft and agree (as far as possible) upon a charge. Therefore, it is incumbent upon the criminal defense lawyer to begin every case with a draft of the charge. This means researching the law and, at a minimum, all applicable statutory defenses and justifications, long before trial. Doing so can help reveal the theme of the case and any potential minefields. Preparation is key. After all, success is determined long before you step foot in the courtroom. It is too late to start focusing on the jury charge at the close of evidence. Begin with the end in mind.2

III. Initial Considerations

Although the jury charge does not come until the very end of the case, it is a mistake not to discuss it until the end of the case. In jury selection, it is worthwhile to point out that the law applicable to the case at hand is so important that, before deliberations begin, the judge will not only provide the jurors with a copy of the law but also read the law to the jury. The law is that important. If possible, obtain a copy of a charge the judge has given in a similar case prior to the start of your case. Weave in some applicable portions of law, verbatim, in jury selection with the knowledge that it will be reinforced by the judge at the close of the case. Then, in closing, remind the jury that you anticipated that the law would be just as discussed in jury selection. This is an especially valuable practice point for affirmative defenses, justifications and special jury instructions.

IV. Applicable Statutory Law

The Code of Criminal Procedure lays out the requirements for the jury charge. Specifically, articles 36.14 through 36.19 address different aspects of the court’s charge to the jury. Every criminal defense trial lawyer should be very familiar with these articles.

1. Article 36.14: Charge of the Court

Article 36.14 requires that before counsel argues to the jury in a criminal trial, “the judge shall…deliver to the jury…a written charge distinctly setting forth the law applicable to the case.” Article 36.14 specifically prohibits the trial court from commenting on the evidence “expressing any opinion as to the weight of the evidence, summing up the evidence, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury.”3 This is, of course, because the trial court is required, by law, to be neutral and detached.

An instruction, albeit facially neutral and legally accurate, may nevertheless constitute an improper comment on the weight of the evidence.4 That is because “[d]espite the legal accuracy of the instruction” it can improperly “single out a specific type of evidence”5 and “risk[s] impinging upon the ‘independence of the jury in its role as trier of the facts, a role long regarded by Texans as essential the preservation of their liberties.’”6

However, there are three circumstances when it is permissible for the charge to single out evidence. First, when the law identifies a statutory presumption, reference in the charge is permissible. For instance, in a deadly conduct prosecution, it would be proper for the charge to inform the jury that recklessness and danger may be presumed if the actor knowingly points a firearm at another whether or not the actor believed the firearm to be loaded.7 Similarly, the trial court should instruct the jury on the statutory presumption of reasonableness in self-defense cases if applicable.8 Second, the trial court may instruct the jury about evidence that is admissible contingent upon certain predicate facts that are up to the jury to decide. The quintessential example of this is an article 38.23 instruction. Third, when the law directs the jury to attach a certain degree of weight or limited significance to certain evidence an instruction in the charge is proper. Limiting instructions, discussed infra, are a perfect example of the final scenario.

Article 36.14 also addresses the role of the defense lawyer with regard to the court’s charge. Article 36.14 mandates that “[b]efore the charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same.” What is “reasonable” is subjective, though. It likely depends on the complexity of the case, nature of the offense, any defense, and the experience of the lawyer. Therefore, it is good practice to put on the record the precise time when you receive the initial charge and exactly how much time was allotted by the court to examine the charge. Always request more time if needed as the court’s charge to the jury is typically always a ripe area for potential appellate issues.

Preservation of error in the court’s charge is also addressed in Article 36.14. At the outset, article 36.14 requires that the defense “shall present his objections thereto in writing, distinctly specifying each ground of objection.” However, it goes on to say that “[t]he requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury.”9 Therefore, written objections simply are not necessary. It is helpful, however, to write out all potential objections to the charge and special requests to be included in the charge before trial. A good practice point is to have a folder dedicated solely to the jury charge and include a list of potential objection and special requests, as well as supporting case law. This is an area where we can prepare well in advance.

It is necessary that any objection to the court’s charge be sufficiently specific. For instance, requesting “the charge on self-defense, standard form” will not suffice to preserve error since there are several different types of self-defense.10 However, the Court of Criminal Appeals has held that “[t]he requested charge must only be sufficient to call the trial court’s attention to the omission in the court’s charge.”11 The better practice to avoid any waiver argument on appeal is obviously to make the objection(s) as specific as possible. Finally, and interestingly, regarding objections to the charge of the court, by the specific unambiguous terms of Article 36.14, only the defense can object to the charge; the State cannot.12

2. Article 36.15: Requested Special Charges

A special charge is simply a requested jury instruction that is not contained in the general charge of the court. Either the state or the defense is allowed to request a special charge according to Article 36.15. As with objections to the court’s charge under Article 36.14, Article 36.15 requires that the requested special charge be in writing. However, Article 36.15 also states that the writing requirement is satisfied if the request is dictated in the record in the presence of the state and the court. It is clear, then, that objections or special requests to the charge do not have to be in writing if they are clearly spoken into the record.

Article 36.15 also addresses both errors and omissions in the court’s charge. As long as the defense calls the trial court’s attention to the error and/or omission in the charge nothing further is required to properly preserve error.13 It is also not necessary that the requested special charge be entirely correct; it simply must put the court on notice.14 The ball is then in the trial judge’s court. “[N]o exception by the defendant to the action of the court shall be necessary or required in order to preserve for review the error claimed in the charge.”15 However, again, it is good practice to have a list of all special requests and supporting case law on hand.

3. Article 36.16: Final Charge

The charge is so important that the law requires it to be both read to the jury and given to the jury in writing for use during deliberations. The requirement that the judge reads the final charge to the jury is contained in Article 36.16. Supplemental charges are also addressed in Article 36.16.16 There are only three situations in which a supplemental charge is permissible. A supplemental charge can be given based on (1) the improper argument of counsel; (2) on request of the jury; or (3) when the judge, in his discretion, permits the introduction of other testimony.17 Other than these specific situations, the law does not permit the giving of supplemental charges. If a supplemental charge is given, Article 36.16 directs that the defense shall present objections in the manner prescribed by Article 36.15.

4. Article 36.17: Charge Certified by Judge

Article 36.17 is straightforward. It requires the final charge to be certified and filed among the papers in the case. This is obviously so the jury charge can be reviewed by the appellate court. This is also the reason that if multiple copies of the charge are given to the jury, the trial judge instructs the jury not to write on the original copy except for the foreperson’s signature on the verdict form.

5. Article 36.18: Jury May Take Charge

Article 36.18 is also simple. By its terms, the jury may take a copy of the charge to the jury room after it has been filed. The jury is not permitted to take any charge or part of a charge which was not given by the trial court.18 As a practical matter, the jury should not even be aware that a special charge was requested and denied since the charge conference occurs outside the presence of the jury. Such a charge simply will not appear in the final version read to the jury.

6. Article 36.19: Review of Charge on Appeal

Error in the jury charge is unique among other possible trial errors in that the legislature codified the standard of review on appeal for such error in the Code of Criminal Procedure. Article 36.19 specifically states that the judgment shall not be reversed based on error stemming from a violation of the preceding Articles “unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.” A more detailed discussion of the standard of review on appeal for errors in the court’s charge follows. It cannot be said enough – object!

V. Basics of a Jury Charge

There are several basic instructions contained in every jury charge. Some of these instructions are the constitutional principles upon which our criminal justice system is premised – the presumption of innocence, proof beyond a reasonable doubt, and the right to remain silent. The judge will read all the instructions to the jury. Listen and read the jury charge carefully. This is not the time to go on autopilot or zone out. Pay special attention to these instructions regarding the presumption of innocence, proof beyond a reasonable doubt, and the right to remain silent. The words are powerful, they help the accused, and they will have instant credibility with the jury having come from the judge.

The charge will generally track section 2.01 of the Texas Penal Code which sets out the constitutional requirements of the presumption of innocence and proof beyond a reasonable doubt:

All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

The charge also informs the jury that the charging instrument (indictment/information) itself is no evidence of guilt.19 The charge should also specifically tell the jury that the accused is presumed innocent of the charge(s), that all persons are presumed innocent, and that the law does not require the accused to prove his innocence or produce any evidence at all. Finally, the charge should direct the jury that the presumption of innocence alone is sufficient to acquit. 

Along with the presumption of innocence, the jury will be instructed on the Fifth Amendment Constitutional right to remain silent. The jury will be told that an accused’s decision not to testify cannot be held against him and is no evidence of guilt. The jury will be told not to guess, speculate, allude to or even talk about what the accused might have said if he did testify.

The charge should also tell the jury that the burden of proof throughout the trial is always on the state and that the state is required to prove every element of the offense beyond a reasonable doubt. The charge directs the jury to find the accused not guilty if the state does not prove every element of the offense beyond a reasonable doubt. However, the charge is not required to include a definition of “reasonable doubt.”20 And courts have held it is not error to distinguish beyond a reasonable doubt from “all possible doubt.”21

In addition to the aforementioned constitutional principles, there are several other basic topics that should be addressed in every jury charge. For instance, a correct charge will always include an application paragraph applying the law to the facts of the case.22 The purpose of the application paragraph is to apply the relevant law, definitions found in the abstract, and general legal principles to the particular facts of the case.23 Because the application paragraphs specify the factual circumstances under which the jury should convict or acquit they are the heart and soul of the jury charge.24 A charge that does not apply the law to the facts fails to lead the jury to the threshold of its duty: to decide those fact issues.25

It will also instruct the jurors that they are the exclusive fact finders; that they judge the believability of witnesses and weight to be given to their testimony.26 The charge will also inform the jury what the evidence is and is not. For instance, statements made by the lawyers are not evidence. Conversely, evidence is testimony and admitted exhibits. Sometimes the charge will inform the jury about their access to evidence in accordance with articles 36.25 and 36.28 of the Code of Criminal Procedure. The charge will also lay out some ground rules for deliberations and inform the jurors how to complete the verdict forms.

VI. Other Instructions

Typically, judges have standard jury instructions pre-prepared in accordance with the foregoing and simply add to said instructions. What follows are some of the other instructions that are common in the court’s charge to the jury.

a. Defensive Issues

It is well-settled that a trial court must instruct the jury on all of the law applicable to the case.27 An accused is entitled to an instruction on every defensive or mitigating issue raised by the evidence.28 This is true regardless of whether the evidence is strong or weak, un-impeached or contradicted, and regardless of whatever the trial judge may think about the credibility of the evidence.29 This rule is designed to ensure that the jury, not the judge, will decide the relative credibility of the evidence.30 But if the defensive theory is not explicitly listed in the penal code—if it merely negates an element in the State’s case, rather than independently justifying or excusing the conduct—the trial judge should not instruct the jury on it.31

However, article 36.14 imposes no sua sponte duty on the trial court to instruct the jury on unrequested defensive issues.32 Therefore, it is incumbent upon the practitioner to always request instructions on any potentially applicable defenses. However, if the trial court does sua sponte issues a defensive instruction but fails to properly apply it then it is error even if the defendant does not object.33 To fail to instruct the jury on the law applicable to a particular case, when requested to do so, is error. Therefore, it is vitally important to think about the charge at the beginning of a case in order to formulate special requested defensive instructions.

b. Lesser-Included Offense Instructions

It is important to know from the very beginning if you will be requesting an instruction on a lesser-included offense. Lesser-included offense instructions pose a unique decision – give the jury several options and hope for a compromise or try the case on an all-or-nothing basis? If you think about the jury charge first, you will be able to strategically tailor [at least certain aspects of] the trial to the end result – a special requested charge on a lesser-included offense.

Lesser-included offense instructions are not automatically included in the court’s charge. Such a charge is required if the offense constitutes a lesser-included offense, and the lesser included offense must be raised by the evidence at trial.34 Anything more than a scintilla of evidence from any source is sufficient to entitle a defendant to submission of a lesser-included offense.35 A defendant’s testimony alone is sufficient to raise the issue entitling him to a charge on a lesser-included offense.36

Either the state or the defense may request an instruction on a lesser-included offense when it is appropriate to do so.37 There is even some authority upholding a trial court’s sua sponte submission of a lesser-included instruction in the absence of a request from either side.38 When inclusion of a lesser-included offense is incorrectly refused by the trial judge, a finding of harm is essentially automatic, according to the Court of Criminal Appeals.39  

c. Limiting Instructions

The basis for limiting instructions is Rule 105 of the Texas Rules of Evidence. By its terms evidence can be admissible for a limited purpose or against a particular party. Most commonly, a limiting instruction is required where the State offers extraneous offense evidence. There are other situations wherein limiting instructions are appropriate, too.40

The limiting instruction must be requested and read to the jury at the time the jury first hears the evidence pertaining to the instruction and every time thereafter. A limiting instruction is required in the charge when evidence has been admitted for only a limited purpose.41 This is true regardless of whether the limiting instruction occurs in a guilt ot punishment phase of a trial.42 However, the court is under no obligation to include a limiting instruction in the charge where such an instruction was not requested when the evidence was first presented.43 In such an instance, the evidence is admissible for all purposes.44 This is so because Texas courts have frequently reasoned that the decision of whether to request a limiting instruction concerning the proper use of certain evidence, including extraneous offenses, may be a matter of trial strategy.45 Additionally, “this doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not.”46

For purposes of preserving error if the trial court refuses to provide a limiting instruction, request a special charge under Article 36.15 and also object to the omission of said instruction under Article 36.14. Again, be prepared with an appropriate limiting instruction that can be read into the record or filed with the court. Bottom line: object and request every time.

d. Exclusionary Rule

The Texas exclusionary rule, embodied in “article 38.23(a), is mandatory. Article 38.23(a) provides that when evidence is presented at trial that raises an issue of whether evidence was legally obtained, “the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of the Article, then and in such event, the jury shall disregard any such evidence obtained.” Therefore when an issue of fact is raised, a defendant has a statutory right to have the jury charged accordingly.”47 Only “when there exists a factual issue that evidence was obtained in violation of the Constitution or law of the State of Texas, or of the Constitution or laws of the United States of America” is the exclusionary instruction required.48 A defendant must show three things in order to receive an article 38.23 jury instruction: (1) the evidence heard by the jury must raise an issue of fact; (2) the evidence on that fact must be affirmatively contested; and (3) that the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence.49

e. Voluntariness of Confession

The trial court is required to instruct the jury where the issue of voluntariness of a confession is raised by the evidence according to art. 38.22, Sec. 7 of the Code of Criminal Procedure. However, before the requested instruction is required, some evidence must be presented to the jury which raises the issue of voluntariness.50

f. Special Issues – Deadly Weapons

There are certain special issues that are not elements of an offense. For instance, whether or not a deadly weapon was used or exhibited. So, the question thus becomes when and how to submit these issues to the jury.

The state, of course, is not entitled to a jury charge on a deadly weapon unless an accused is actually given notice by indictment or otherwise of the alleged use of a deadly weapon.51 Even if a separate special issue regarding the use of deadly weapon is not submitted to the jury, as long as it was alleged in the indictment and the jury finds the defendant guilty as charged, the trial court can still enter a deadly weapon finding.52

The Court of Criminal Appeals addressed the proper place for the deadly weapon special issue in Hill v. State, 913 S.W.2d 581, 586 (Tex. Crim. App. 1996). In Hill, the Court noted that Article 37.07 of the Code of Criminal Procedure implicitly requires the deadly weapon issue to be submitted at the guilt/innocence stage so that the trial court will know which parole law instruction to give the jury during the punishment phase. The better practice is to submit the deadly weapon special issue charge at the guilt/innocence phase of the trial.

VII. Defining Terms in the Charge

The trial court is required to give the jury a written charge setting forth the law applicable to the case.53 This requires that the jury be instructed concerning each element of the offense or offenses charged. It also requires that each statutory definition that affects the meaning of an element of the offense be given to the jury.54 If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury.55 However, only the applicable portions of any definition should be included in the charge.56 A trial court generally errs if it goes beyond the statutory definition.57 Regarding undefined terms, section 311.011 of the Government Code provides that statutorily undefined words and phrases shall be “construed according to the rules of grammar and common usage. Words and phrases that have acquired a technical or particular meaning …shall be construed accordingly.”

For example, it is error for a trial court to include a definition of “affirmative links” in a jury charge.58 Whereas “possession” is specifically defined in the Penal Code “affirmative links” is not so defined. Rather, an analysis of affirmative links “is only a shorthand expression for evaluating the sufficiency of the evidence.”59 “Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis.”60

VIII. Jury Unanimity

Texas statutory and constitutional law requires a unanimous jury verdict in all criminal cases.61 More specifically, “the jury must be unanimous in finding every constituent element of the charged offense in all criminal cases.62 The requirement is a complement to and helps in effecting the beyond a reasonable doubt standard.63 At a very basic level it means that every juror must agree that the accused committed the same, single, specific criminal act. When the State charges different criminal acts, regardless of whether those acts constitute violations of the same or different statutory provisions, the jury must be instructed that it cannot return a guilty verdict unless it unanimously agrees upon the commission of any one of these criminal acts.64

The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense, in contrast to instructing the jury on two separate offenses involving separate incidents.65 To guarantee unanimity when the State is not required to elect between aggravating circumstances, “the jury must be instructed that it must unanimously agree on one incident of criminal conduct (or unit of prosecution), based on the evidence, that meets all of the essential elements of the single charged offense beyond a reasonable doubt.66

Often times, unanimity issues are difficult to spot. The most common types of cases in which jury unanimity is most frequently an issue are sexual offenses because there are typically multiple counts and/or multiple alleged acts within counts. That is why it cannot be overstated that preparation at the outset of a case is absolutely necessary.

IX. Nature of the Conduct v. Result of the Conduct

Section 6.03 of the Penal Code sets out four culpable mental states – intentionally, knowingly, recklessly, and criminally negligently; two possible conduct elements – nature of conduct and result of conduct; and the effect of the circumstances surrounding the conduct. In a jury charge, the language in regard to the culpable mental state must be tailored to the conduct elements of the offense.67 When specific acts are criminalized because of their very nature, a culpable mental state must apply to the committing act itself.68 On the other hand, unspecified conduct that is criminalized because of its result requires culpability as to that result.69 A trial court errs when it fails to limit the language in regard to the applicable culpable mental states to the appropriate conduct element.70

X. Preserving Error

As a threshold matter, all alleged jury charge errors must be considered on appellate review regardless of preservation in the trial court.71 Failure to properly preserve error, however, affects the harm analysis. To properly preserve error, all objections to the charge must be made before the charge is read to the jury.72

As discussed previously, the Code of Criminal Procedure provides two ways to object to the court’s charge to the jury.73 One way, according to Article 36.14, is to object to it on the basis of either an omission or an inclusion of something that does not belong. The other, under Article 36.15, is to request an instruction.

In Almanza, the Court of Criminal Appeals held that Article 36.19 of the Texas Code of Criminal Procedure prescribes the manner in which jury charge error is reviewed on appeal.74 The degree of harm that must be present to require reversal of a case depends upon whether the error was preserved or unpreserved. Therefore, the first step is to determine if the error was preserved.

Concerning error that was preserved at trial by a timely and specific objection, such error must have been “calculated to injure the rights of [the] defendant.”75 In other words, a defendant must have suffered “some” actual, rather than theoretical, harm from the error.76 However, the Court of Criminal Appeals has held that in the context of Almanza, supra, and Article 36.19, supra, the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction.77 Therefore, cases involving preserved charging error will be affirmed only if no harm has occurred.78

When charge error has not been preserved at trial by a timely and specific objection, a greater degree of harm is required to warrant reversal. “Egregious” harm is required. “Errors which result in egregious harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.

As in the case of assaying harm after jury charge error, the Court of Criminal Appeals has ruled that neither an Appellant/Defendant nor the State bears the burden of persuasion to show harm following non-constitutional error under Rule 44.2(b).79 In this regard, the Court of Criminal Appeals in Johnson followed its prior decision in Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000), wherein the Court in the latter case explained that:

[w]e do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm, as the dissent would have it. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove “actual” harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence, but they have little meaning for the harmless-error decision.

The function of a party carrying the burden is simply to suggest, in light of that record, how prejudice may or may not have occurred. At that point, the court makes its own assessment as to what degree of likelihood exists as to that prejudicial or non-prejudicial impact and then applies to that assessment the likelihood-standard of the particular jurisdiction.

In assessing any harm that occurred, the reviewing court considers several factors including the charge as a whole, the state of the evidence, including the weight of the probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole.80

XI. Conclusion

Whether it is true or not, to a jury, the trial judge is the foremost authority on the law. Juries look to the judge for guidance and see the judge as the smartest person in the room. After all, the judge is giving the jury instructions from the moment they walk into the courtroom, and all parties treat the court with reverence. If it is written or spoken by the judge it is regarded as the truth. Jury instructions from the judge are the judicial gospel to the jury. Therefore, we need our hands in its penmanship so that the judicial gospel the jury hears from the bench will actually be one written by you. And above all, if you think you should object, object!


1. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2009).

2. Covey, The 7 Habits of Highly Effective People, Habit 2.

3. Tex. Code Crim. Proc. 36.14.

4. Kirsch, 357 S.W.3d at 651; see also Brown v. State, 123 S.W.3d 794 (Tex. Crim. App. 2003) (holding it was an improper comment on the weight of the evidence in violation of Article 36.14 to instruct the jury that it could infer the defendant’s intent by his acts done and the words spoken but finding such error harmless).

5. Id. (internal citations omitted).

6. Bartlett v. State, 270 S.W.3d 147, 152 (Tex. Crim. App. 2008) (internal citation omitted).

7. Tex. Penal Code §?22.05(c).

8. Tex. Penal Code §?9.32.

9. Id.; see also Rojas v. State, 662 S.W.2d 466, 469 (Tex.App.—Corpus Christi 1983, pet. ref’d) (“Appellant’s objection to the charge was made after the court read the charge to the jury and the jury retired to the deliberation room. The objection, not having been made before the charge was read to the jury, is not timely made and cannot be considered on appeal.”).

10. Reece v. State, 683 S.w.2d 873 (Tex.App.—Houston [14th Dist.] 1984, no pet.).

11. Chapman v. State, 921 S.W.2d 694 (Tex. Crim. App. 1996).

12. The State can, however, ask for requested special charges under Article 36.15. See infra.

13. Tex. Crim. Proc. art. 36.15; see also Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996) (“[U]nder art. 36.15, if the defendant requests a special charge no objection is required to preserve error. All that is necessary . . . is that the requested charge be in writing or dictated to the court reporter.”); Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996) (“requested charge must only be sufficient to call the trial court’s attention to the omission in the court’s charge”).

14. Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986) (“[A]ppellant’s requested charge was clearly incorrect: it misstated the law and constituted an impermissible comment on the evidence. The record shows, however, that despite the obvious errors in the requested charge, the trial court understood that appellant was objecting to the omission of an instruction regarding the officer’s right to stop the vehicle. Thus, the trial court was apprised of appellant’s objection to omissions in the charge.”).

15. Id.

16. Most commonly, the supplemental charge is a dynamite or Allen charge given when, in the opinion of the court, the jury is deadlocked.

17. Tex. Crim. Proc. art. 36.16.

18. Tex. Crim. Proc. art. 36.18.

19. However, a trial court is probably not required to tell the jury that the charging instrument is not evidence. See Committee on Pattern Jury ­Charges—Criminal—of the State Bar of Texas, Texas Criminal Patter Jury Charges C2.1 (2011) (citing Magness v. State, 244 S.W.2d 810 (Tex. Crim. App. 1952) (“Though the trial court might well have given the requested charge [that the information filed against him was no evidence of his guilt], we are unable to agree that his failure to do so was prejudicial to the rights of appallant.”)). The Committee on Pattern Jury Charges—Criminal believes such an instruction should be included in the court’s charge, though. Id.

20. Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).

21. Infante v. State, 397 S.W.3d 731 (Tex. App.—San Antonio 2013, no pet.); Rodriguez v. State, 96 S.W.3d 398, 405 (Tex. App.—Austin 2002, pet. ref’d) (where identical language submitted there wasn’t even “some harm” from the instruction); Watson v. State, No. 03-19-00015-CR (Tex. App.—Austin 2019) (same).

22. Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996) .

23. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012).

24. Id. at 367. (internal citation omitted).

25. Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977).

26. Articles 38.04 and 36.13 of the Texas Code of Criminal Procedure address the role of jurors as judges of fact.

27. Tex. Code. Crim. Proc. art. 36.14.

28. Arnold v. State, 742 S.W.2d 10 (Tex. Crim. App. 1987); Williamson v. State, 672 S.W.2d 484 (Tex. Crim. App. 1984); Moon v. State, 607 S.W.2d 569 (Tex. Cr. App. 1980); Garcia v. State, 605 S.W.2d 565 (Tex. Cr. App. 1980); Warren v. State, 565 S.W.2d 931 (Tex. Cr. App. 1978); Sanders v. State, 707 S.W.2d 78 (Tex. Crim. App. 1986); Rogers v. State, 550 S.W.3d 190 (Tex. Crim. App. 2018) (trial court’s refusal to instruct on necessity and self-defense was harmful).

29. Arnold, supra.; Warren, supra.; Sanders, supra.; Shaw v. State, 510 S.W.2d 926 (Tex. Cr. App. 1974); Perez v. State, 172 S.W.2d 314 (Tex. Cr. App. 1943).

30. Jenkins v. State, __ S.W.3d __, 2015 WL 3543130 (Tex. App.—Houston [14th Dist.] 2015, pet granted).

31. Id. at *13 (internal citation omitted).

32. Posey v. State, 966 S.W.2d 57, 59 (Tex. Crim. App. 1998).

33. Mendez v. State, 545 S.W.3d 548 (Tex. Crim. App. 2018).

34. Schweinle v. State, 915 S.W.2d 17, 18 (Tex. Crim. App. 1996); Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1981).

35. Id.

36. Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985).

37. Fransaw v. Lynaugh, 810 F.2d 518, 529 (5th Cir. 1987); Willis v. State, 761 S.W.2d 434, 436 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d) (a lesser included offense instruction may be submitted over the defendant’s objection).

38. McQueen v. State, 984 S.W.2d 712, 717 (Tex.App.—Texarkana 1998, no pet.).

39. Saunders v. State, 913 S.W.2d 564, 571 (Texas. Crim. App. 1995).

40. Evans v. State, 500 S.W.2d 846, 850 (Tex. Crim. App. 1973) (co-defendant’s confession may not be considered as evidence of a defendant’s guilt, and an appropriate limiting instruction should be given in that instance); offense admitted to prove intent, knowledge, etc.

41. Johnson v. State, 509 S.W.2d 639 (Tex. Crim. App. 1974); Hitcock v. State, 612 S.W.2d 930 (Tex. Crim. App. 1981); Escovedo v. State, 902 S.W.2d 109 (Tex.App.—Houston [1st Dist.] 1995).

42. Smith v. State, No. PD-0715-17 (Tex. Crim. App. 2019) (failure to properly limit an 8.04(a) voluntary intoxication instruction to extraneous conduct in punishment trial required reversal).

43. Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007); Williams v. State, 273 S.W.3d 200 (Tex. Crim. App. 2008).

44. Hammock v. State, 46 S.W.3d 889 (Tex. Crim. App. 2001).

45. See, e.g., Ryan v. State, 937 S.W.2d 93, 104 (Tex.App.—Beaumont 1996, pet. ref’d) (citing Blevins v. State, 884 S.W.2d 219, 230 (Tex. App.—Beaumont 1994, no pet.)).

46. See Jackson v. State, 992 S.W.2d 469, 477 (Tex. Crim. App. 1999).

47. Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002).

48. Maldonado v. State, 998 S.W.2d 239, 246 (Tex. Crim. App. 1999).

49. Madden v. State, 242 S.W. 3d 504, 510 (Tex. Crim. App. 2007).

50. Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994).

51. Ex parte Patterson, 740 S.W.2d 766 (Tex. Crim. App. 1987).

52. Edwards v. State, 21 S.W.3d 625 (Tex.App.—Waco 2000).

53. Tex. Crim. Proc. art. 36.14.

54. 42 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure 36.11, at 536 (Texas Practice 1995).

55. Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012); Walters v. State, 247 S.W.3d 204, 214 (Tex. Crim. App. 2007).

56. Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) (only the portion of the definitions of culpable mental state that applies to the case should be included in the charge).

57. Wright v. State, 704 S.W.2d 129, 131 (Tex.App.—Corpus Christi 1986, reh’g denied); Kirsch, 357 S.W.3d 645 (jury instruction defining the word “operate” was error).

58. Deener v. State, 214 S.W.3d 552, 530 (Tex.App.—Dallas 2007, reh’g overruled).

59. Id.

60.  at 529.

61. Tex. Code Crim. Proc. art. 36.29, 37.02, 37.03, 45.034–36; Tex. Const. Amend. Art. V, sec. 13.

62. Jourdan v. State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014) (internal citation omitted).

63. See United States v. Gipson, 553 F.2d 453, 457 n. 7 (5th Cir.1977).

64. Ngo v. State, 175 SW 3d 738, 744 (Tex. Crim. App. 2005).

65. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) (internal citation omitted).

66. Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2015) (internal citation omitted).

67. Price v. State, 457 S.W.3d 437 (Tex. Crim. App. 2015); see also Alvarado v. State, 704 S.W.2d 36, 38–40 (Tex. Crim. App. 1985) (holding that the trial court erred in failing to tailor the culpable mental states to the result of conduct for the result-oriented offense of injury to a child).

68. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).

69. Id.

70. Id. (internal citation omitted).

71. Kirsch, 357 S.W.3d at 649 (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)).

72. Rojas v. State, 662 S.W.2d 466, 469 (Tex.App.—Corpus Christi 1983, pet. ref’d).

73. Vasquez v. State, 919 S.W.2d 433 (Tex. Crim. App. 1996).

74. 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

75. Tex. Crim. Proc. art. 36.19; Almanza, supra, at 171.

76. Id.

77. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[A]ny harm, regardless of the degree, which results from the preserved charging error, is sufficient to require reversal.”).

78. See Id. at 171.

79. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); Vann v. State, 216 S.W.3d 881 (Tex.App.—Fort Worth 2007, no pet.).

80. Alamanza, 686 S.W.2d at 171; Rodriguez v. State, 90 S.W.3d 340, 360–1 (Tex.App.—El Paso 2001, pet. ref’d).

Sarah Roland
Sarah Roland
Sarah Roland is the former editor of Voice for the Defense. She attended undergraduate school at Baylor University, then attended law school at Texas Tech. From 2006-2011, she worked for Jackson & Hagen. In 2011, she opened her own practice in Denton. Sarah was chosen as a Super Lawyer for 2017 in the state of Texas, as well as being awarded the Hal Jackson Award by the Denton County Criminal Defense Association. She ranks as a top lawyer in the area through her trial work. She primarily serves clients in Denton, Dallas, Collin, and Tarrant County. Sarah also handle cases in Wise and Cooke County.

Sarah Roland is the former editor of Voice for the Defense. She attended undergraduate school at Baylor University, then attended law school at Texas Tech. From 2006-2011, she worked for Jackson & Hagen. In 2011, she opened her own practice in Denton. Sarah was chosen as a Super Lawyer for 2017 in the state of Texas, as well as being awarded the Hal Jackson Award by the Denton County Criminal Defense Association. She ranks as a top lawyer in the area through her trial work. She primarily serves clients in Denton, Dallas, Collin, and Tarrant County. Sarah also handle cases in Wise and Cooke County.

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