By Daniel Cox
First Assistant District Attorney in Henderson County
I have no idea who did the jury charges when I was a misdemeanor prosecutor. The judge? Someone in my office? The jury charge fairy? I don’t know. It was the last thing on my radar. Jury charges just magically appeared when both sides had rested and it was time to charge and argue. Then when I went to felony court, my then-judge did his own charges, so for the first five or six years of my career, jury charges were the least of my concern.
Then my judge retired, and thus ended the practice of the court doing its own jury charges. Time for the State to step up. I went to the court reporter for that retired judge, who kept 20-something years’ worth of jury charges on a flash drive, and I copied it. That way, when it came time to do my own charges, I at least had templates to work with.
But it wasn’t always helpful. Trials are like snowflakes: No two are alike. The other day I found myself helping two different coworkers by compiling two different jury charges with two different trials in two different courts. These instructions included, among other things, lesser included offenses, affirmative defenses, deadly weapon allegations, enhancement paragraphs to be considered in punishment, and more. There was a lot. My head hurt. I got confused. And I realized whoever was doing closing argument was going to have to argue that charge and explain to the jury what these eight or so pages of legal mumbo-jumbo really meant.
And then it dawned on me: The State should always argue the charge during closing argument.
I think prosecutors are too focused on the dramatic closing argument—or as my boss calls it, the “make the jury cry” closing argument or the “this defendant sucks” closing argument. There’s a place for such a thing; this very journal has published such articles, and every TDCAA Prosecutor Trial Skills Course includes a presentation on closing argument. But we may not stress the importance of arguing the charge enough.
Arguing the charge
Arguing the charge essentially boils down to 1) explaining the law to the jury, 2) discussing how a case’s facts fit, and 3) proving the elements of the offense. I think arguing the charge should start in voir dire when we first explain the different issues that will come up in trial. Then we loop back to those examples in the State’s closing argument.
Of course, that means prosecutors may have to predict the issues that a defense attorney will raise in front of a jury. Self-defense, for example. In selecting that jury, the prosecutor will obviously give examples of when self-defense is legally appropriate and when it’s not. If opposing counsel argues defense of property? We would do the same. If someone breaks into your house in the middle of the night and threatens you with a knife, you can use deadly force. But if a 12-year-old slashes your tires in broad daylight, you don’t realize it until two days later, and you track the kid down and shoot him? Not so much. When the jury gets instructions on self-defense, use those (or similar) examples, compare and contrast them with the evidence the jury heard in trial, and explain why the defendant is not allowed to use self-defense—or whatever the defense may be.
Trying a manufacture or delivery case? We all know to ask the venire panel, “How can you tell somebody is a drug dealer?” The panel’s answers will consist of scales, baggies, security cameras, police scanners, large rolls of cash, etc. During trial, officers will testify about what they found when they served the search warrant (in addition to dope): cash, scales, a police scanner, little baggies, and a ledger with the defendant’s sales and customers. Tie it together with what the panelists said in voir dire: “You said yourselves in voir dire that this defendant is a drug dealer.”
It works in other types of cases too. As crass as this will sound, I once tried a sexual assault of a child where the defendant penetrated the victim with “just the tip,” for lack of a better term. He gave a confession to the police but tried to minimize the offense by saying he “barely stuck it in.” Or, in football parlance, he broke the plane.
In voir dire, I asked if there were any football fans on the panel. I asked them what happens when the tip of the football “breaks the plane” of the goal line. The football may not go all the way into the end zone, but if the tip of the ball breaks the plane, that’s a touchdown. Did I use that example of the ball breaking the plane from voir dire to explain how “just the tip” is sufficient for penetration? Yes, I did. My mom would have been so proud—I’m sure that’s exactly the kind of thing she thought I’d be doing as a lawyer when I decided to go to law school.
A coworker tried a Burglary of a Habitation case. The victim owned a laundromat and lived in the back room. The back room had a bed, bathroom, and kitchenette, and that’s where his mail was delivered. While the victim was out of town, the defendant broke in, entered that back room, and stole some personal belongings. A coworker asked the panel in voir dire about their houses and how you can tell people live in them. Among the answers: They sleep there, they spend the majority of their time there, it’s the address on their driver’s license, their clothes are there, they shower there, etc. The defense attorney asked for and got a lesser included instruction on burglary of a building because it was a laundromat, after all. And my coworker, in arguing the charge, read the definition of a habitation from the charge and tied together what the panelists said in voir dire (what makes up somebody’s home) and what our victim had in the back room of the laundromat—were it not for the habitation in the back room, it would have been just a building. And the jury found the defendant guilty of burglary of a habitation.
I tried a murder last year with my boss and we thought sudden passion might be an issue. Before trial, we talked about what possible defenses could be raised, including self-defense, but concluded that based on the facts of our case, there’s no way the defense could raise self-defense and maintain credibility with the jury—the defendant shot our victim in the back of the head three times. So in my voir dire, I did not address self-defense. No definition, no examples. Then what did the defense get up in opening statement and say? That the defendant, while angry because the victim (his ex-partner) was talking to other men, shot her because of sudden passion—but also the victim drew a gun on him first and he had to shoot her to defend himself.
So the defendant got a self-defense instruction, and I wished I had explained self-defense and gotten examples out of the panel in voir dire. It meant that I had no “like we talked about in voir dire” examples for self-defense, and I had to wing it in closing argument. Fortunately, the jury didn’t buy the defendant’s claim. I still feel that claiming self-defense under those facts was farfetched, but prosecutors should err on the side of caution. Better to cover an issue in voir dire and not need to argue it than to have to explain it to the jury for the first time in closing.
I even go over the verdict form with the jury in first close. I’ll explain that the top line is for the foreperson to sign when the jury finds the defendant guilty of the charged offense. Only if jurors unanimously disagree as to whether he’s guilty of that offense (which they must resolve in the defendant’s favor) or don’t believe beyond a reasonable doubt that he’s guilty of that charged offense, do they then consider the next line, the first lesser-included offense.[1]
And then, only if they disagree as to the defendant’s guilt of that lesser included offense, which again they must resolve in the defendant’s favor or they do not find beyond a reasonable doubt that he’s guilty of that lesser included offense, will they consider the next lesser included offense. And then, finally, I explain the last line, the line for not guilty.
I’ll finish arguing the charge by telling the jury that the foreperson will sign the top line, because we have proven our case beyond a reasonable doubt, and I’ll remind them why. I tell them why they don’t even need to concern themselves with the other lines below the first one.
It works on punishment too
The same applies in punishment. The wording with the enhancement paragraphs is weird, especially to the layperson: “If you find beyond a reasonable doubt that prior to the commission of the primary offense, the defendant was finally convicted of the felony offense of blah blah blah, and after that conviction became final, he was convicted of the felony offense of whatever, then you shall sentence him to a term of confinement between X and Y years. …” For most jurors, a charge is probably an intimidating legal document with lots of definitions written in a fancy way. But you can break down the verbiage and simplify it: “He committed this felony, went to prison, got out, committed another felony, went to prison again, and now he’s eligible for 25 years to life in prison.” I hope you also covered this in voir dire in far clearer language than in the charge, so now you just remind jurors of the discussion about enhanceable and habitual penalties.
It’s the same for an Unlawful Possession of a Firearm by a Felon case. The wording from the Penal Code on when a felon can and cannot possess a firearm can come off as verbose. Simplify it: “A felon cannot possess a firearm anywhere, under any circumstance, for the first five years after his release from confinement, for instance. This defendant was sentenced to five years in prison in 2016. His sentence discharged in 2021. And here he is in 2023, just two years later, in possession of a firearm.”
Conclusion
In summary, you may not make the jury cry. You may not make them furious and want to leap out of the jury box and strangle the defendant out of anger. Your trial partner, who gets to stand up, rebut everything the defense attorney said, and then deliver the emotional close, may get the glory, the pats on the back, and hugs from the victim’s family, but you will have laid the groundwork for him. You will have explained to the jury what that charge means. That final closing argument—the dramatic, emotional closing argument—doesn’t mean as much if the jury doesn’t know what the hell is going on in the first place.
Endnote
[1] See Sandoval v. State, No. AP-77,081, 2022 Tex. Crim. App. LEXIS 844 (Tex. Crim. App. Dec. 7, 2022) (interpreting Tex. Code Crim. Proc. Art. 37.08 and disavowing Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App. 2009)).