Another Appellate Victory! Sherman & Plano, TX Criminal Defense Lawyer (Part 3)

In his second issue, appellant argues he was harmed by the additional definition of unlawful because it “violated his right to a unanimous jury,” “lowered the state’s burden of proving each and every element of the offense beyond a reasonable doubt,” and was “confusing, misleading, and … an incorrect statement of Texas law.” The court of criminal appeals has framed the issue as whether the definition was an incorrect statement of the law. Our inquiry is limited accordingly.FN2
FN2. Moreover, appellant provides no argument or authority to support his contention that the instruction violated his right to a unanimous jury. Therefore, it has been waived as inadequately briefed. TEX.R.APP. P. 38.1.

*2 Appellant was charged with retaliation. See TEX. PENAL CODE ANN. § 36.06(a) (West 2011). The statute provides, in pertinent part, that a person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a person who has reported or who the actor knows intends to report the occurrence of a crime. See id.; see also Moore v. State, 143 S.W.3d 305, 319 (Tex.App.-Waco 2004, pet. ref’d).

After providing the statutory definition of the charged offense, the court endeavored to define the “unlawful act” element set forth in the statute. FN3 In so doing, the court provided the definition at issue which states:

FN3. The trial judge noted that because the State and the defense made statements to the jury regarding the legality of sending threatening text messages, he believed it necessary to instruct the jury that such an act was unlawful.

Unlawful means criminal or tortuous [sic] or both and includes what would be criminal or tortuous [sic] but for a defense not amounting to justification or privilege. Under Texas law, it is an unlawful act to threaten someone by electronic communication in a manner likely to alarm the person who received the threat to inflict bodily injury on that person.
Appellant does not complain about the first part of the definition, which was derived from the definitions section of the penal code. See TEX. PENAL CODE ANN. § 1.07(48) (West 2011). Rather, it is the second part of the definition, derived from, the harassment statute, to which appellant assigns error. See TEX. PENAL CODE ANN. § 42.07 (West 2011).

In criminal jury trials, the trial court must deliver “a written charge distinctly setting forth the law applicable to the case.” TEX.CODE CRIM. PROC. ANN. art. 36.14 (West 2007). Because the charge instructs the jury on the law applicable to the case, it must contain an accurate statement of the law and set out all essential elements of the offense, Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App.1995). In reviewing the jury charge for any alleged error, an appellate court must examine the charge as a whole and not as a series of isolated and unrelated statements. Id.

The retaliation statute does not define an “unlawful act.” See TEX. PENAL CODE ANN. § 36.06(a) (West 2011). As a general rule, terms that are not legislatively defined are to be understood as ordinary usage allows, and jurors may give them any meaning which is acceptable in common parlance. Medford v. State, 13 S.W.3d 769, 771-72 (Tex.Crim.App.2000). On the other hand, “terms which have a known and established legal meaning or which have acquired a peculiar and appropriate meaning in the law … are considered as having been used in their technical sense.” Kirsch v. State, 357 S.W.3d 645, 650 (Tex.Crim.App.2012). Terms which have a technical or legal meaning may require an explicit definition, Middleton v. State, 125 S.W.3d 450, 454 (Tex.Crim.App.2003). In addition, a trial court not only has broad discretion in submitting proper definitions and explanatory phrases to the jury, it must define those legal phrases that a jury must use to resolve an issue. See Macias v. State, 959 S.W.2d 332, 336 (Tex.App.-Houston 14th Dist.1997, pet, ref’d); see also Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex.App.-Houston 14th Dist.2001, pet. ref’d) (stating court must define legal phrases jury must use in resolving issues and provide statutory definition if available). Here, the term “unlawful” had particular legal significance, and as the trial court recognized, required definition to facilitate the jury’s resolution of the ultimate issue in the case.

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