Articles Posted in Appeals

*3 In crafting a definition, however, it is important to remember the function of the definitions and instructions in a charge. The function of the abstract paragraphs is to provide a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge. See Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App.1996). The application paragraph in the instant case read:

If you believe from the evidence beyond a reasonable doubt that [appellant] … did then and there intentionally or knowingly threaten to harm [the victim] by an unlawful act, to wit: by sending … threatening text messages in retaliation for and account of the service or status of [the victim] who had reported the occurrence of a crime, to wit: Assault …

The trial court’s definition gave the statutory definition of the word unlawful. The added language from the harassment statute, which is a specific offense to that charged, was not necessary to further define an unlawful act, and was improperly included in the charge. Therefore, we conclude the court’s definition was erroneous.FN4 FN4. Our conclusion is limited to the facts of this case and the narrow issue remanded for our consideration.

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).

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