Beltran De La Torre, Lisandro ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0561-18
LISANDRO BELTRAN DE LA TORRE, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
COLORADO COUNTY
S LAUGHTER, J., delivered the opinion for a unanimous Court.
OPINION
This case concerns a challenge to the trial court’s jury instructions in a drug
possession prosecution where several individuals were in close proximity to the drugs. In
his petition for discretionary review, Lisandro Beltran De La Torre, Appellant, contends that
the court of appeals erred by rejecting his two complaints of jury-charge error. First, he
contends that the court of appeals incorrectly upheld the trial judge’s decision to give a non-
statutory instruction on “joint possession,” informing the jury that “two or more people can
Beltran De La Torre - 2
possess the same controlled substance at the same time.” Second, he contends that the court
of appeals further erred by upholding the trial judge’s denial of his request for an instruction
on “mere presence,” which would have informed the jury that a person’s mere presence at
a location where drugs are found is insufficient to demonstrate possession.
We hold that both the joint-possession instruction and the proposed mere-presence
instruction constitute improper comments on the weight of the evidence and should not be
included in the jury charge. Thus, by upholding the trial court’s inclusion of the joint-
possession instruction the court of appeals erred, but it was correct to uphold the trial court’s
refusal of the mere-presence instruction. Accordingly, we reverse the court of appeals’
judgment due to its error regarding the joint-possession instruction and remand this case to
the court of appeals for a harm analysis.
Background
Two officers from the Columbus Police Department responded to a mid-morning call
about people suspected of drinking alcohol inside a parked car at the Department of Public
Safety driver’s license office. The officers, Anthony Axel and Jose Lara, approached the car
and observed three occupants inside—Appellant in the driver’s seat, a female in the front
passenger seat, and a second female passenger in the back seat. The officers also saw a man
standing outside the vehicle on the passenger’s side. That man was asked to sit down nearby,
but he was not questioned and later walked away from the scene.
Officer Lara, while standing at the driver’s door, noticed a small plastic bag
Beltran De La Torre - 3
containing a powdery substance on the car’s center console. Suspecting that the bag
contained a controlled substance, Officer Lara asked Appellant and the female passengers
to step out of the car. Officer Lara detained the female passengers while Officer Axel
detained Appellant behind the vehicle.
Officer Axel testified that Appellant smelled of alcohol, had bloodshot eyes, and
appeared to have not slept in a day or more. Both officers stated that Appellant had dilated
pupils, which they believed based on their training and experience indicated the use of
narcotics. The officers removed the bag with the white powdery substance and field tested
it. The test yielded a positive result for cocaine. Appellant and the two female passengers
were then arrested for possession of a controlled substance.
The white powdery substance was subsequently tested in a lab. The lab testing
revealed that the bag contained .02 grams of cocaine. Appellant was charged with and tried
for possession of less than a gram of cocaine.
At Appellant’s jury trial, the State put on evidence of possession by showing that
Appellant: was the registered owner of the vehicle; was in the driver’s seat and had direct
access to the cocaine located on the car’s center console; and showed signs of having
ingested narcotics. The State also argued to the jury that, even if Appellant was not in sole
possession of the cocaine, he could have jointly possessed it along with the other occupants
of the vehicle.
Appellant testified in his own defense. He claimed that the cocaine was not his, and
Beltran De La Torre - 4
he had no knowledge of it being in his car. Appellant suggested that because there were
three other people present at the time police arrived, including the man who was observed
standing outside the vehicle, the drugs belonged to one of them.1
After the close of evidence, the jury was charged on the applicable statutory elements
of possession of a controlled substance (“A person commits an offense if the person
intentionally or knowingly possesses a controlled substance[.]”).2 The statutory definition
of “possession” was also included (“‘Possession’ means actual care, custody, control, or
management”).3 Immediately following the statutory definition of “possession,” the jury
charge included the non-statutory instruction on joint possession (“Two or more people can
possess the same controlled substance at the same time.”). Because the joint-possession
instruction was included in the jury charge, at the charge conference, Appellant had requested
an instruction on “mere presence.” Appellant’s oral request of a mere-presence instruction
was not reduced to writing, but presumably the trial court understood this as a request to
include the following language in the charge: “Mere presence at a place where narcotics are
found is not enough to constitute possession.” The trial court denied Appellant’s request, and
the mere-presence instruction was excluded.
1
Appellant testified that this man was an acquaintance named “Leo.” According to Appellant,
Leo had been in the back seat of the car until shortly before the police arrived. Officers Lara and
Axel also testified about their brief interactions with the man standing outside the car. According
to Officer Lara, the man denied being associated with Appellant and the two women passengers.
2
See TEX . HEALTH & SAFETY CODE § 481.115.
3
TEX . HEALTH & SAFETY CODE § 481.002(38).
Beltran De La Torre - 5
The jury returned a guilty verdict, and the trial court sentenced Appellant to two years
in state jail, probated for three years. Appellant appealed.
The Court of Appeals’ Opinion
On direct appeal, Appellant challenged both the inclusion of the joint-possession
instruction and the denial of the mere-presence instruction. Appellant contended that the trial
court’s inclusion of the joint-possession instruction impermissibly added to the statutory
definition of possession and drew the jury’s attention to the State’s theory that he had jointly
possessed the cocaine along with the other occupants of the vehicle. On this basis, Appellant
argued that the instruction was an improper comment on the weight of the evidence.
Regarding the trial court’s denial of his requested mere-presence instruction,
Appellant argued that by including a joint-possession instruction, the trial court was then also
required to include his requested instruction to clarify for the jury that a person who is merely
present at a location where drugs are found is not automatically deemed to be in possession
of those drugs. The court of appeals rejected both of Appellant’s complaints. Beltran De
La Torre v. State, 546 S.W.3d 420, 426-27 (Tex. App.—Houston [1st Dist.] 2018)
(concluding that possession has an “established legal meaning[ ]” that includes the concept
of joint possession, and thus instruction informing jurors of that meaning was proper; but
instruction on mere presence was properly refused because it was non-statutory defensive
theory that merely “negated elements of the charged offense”).
We granted Appellant’s petition for discretionary review on two grounds: (1) Whether
Beltran De La Torre - 6
the court of appeals erred in holding the trial court did not improperly comment on the
evidence by providing a jury instruction on joint possession that added to the statutory
definition of possession; and (2) Whether the court of appeals erred in alternatively holding
it was not error to refuse Appellant’s requested jury instruction on mere presence while
holding the jury instruction on joint possession was appropriate.
Applicable Law
“The purpose of the jury charge is to inform the jury of the applicable law and guide
them in its application to the case.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App.
1996). A trial judge must maintain neutrality in providing such information and guidance.
Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim. App. 2003). He or she may not express
any opinion on the weight of the evidence or draw the jury’s attention to particular facts. Id.
at 798, 801. To accomplish this neutrality, Article 36.14 of the Texas Code of Criminal
Procedure provides that a jury charge: (1) must be in writing; (2) must “distinctly set[] forth
the law applicable to the case;” (3) cannot “express[] any opinion as to the weight of the
evidence”; (4) may “not sum[] up the testimony”; and (5) cannot “discuss[] the facts or us[e]
any argument in [the] charge calculated to arouse the sympathy or excite the passions of the
jury.” T EX. C ODE C RIM. P ROC. art. 36.14. This rule is designed to prevent a jury from
interpreting a judge’s comments as a judicial endorsement or imprimatur for a particular
outcome. See Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008) (“[A] trial court
should avoid any allusion in the jury charge to a particular fact in evidence, as the jury might
Beltran De La Torre - 7
construe this as judicial endorsement or imprimatur.”).
To ensure compliance with Article 36.14, a trial judge should, as a general rule, avoid
including non-statutory instructions in the charge because such instructions frequently
constitute impermissible comments on the weight of the evidence. See Walters v. State, 247
S.W.3d 204, 211 (Tex. Crim. App. 2007). “[S]pecial, non-statutory instructions, even when
they relate to statutory offenses or defenses, generally have no place in the jury charge.” Id.;
see also Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012) (same). Even a
judge’s innocent attempt to provide clarity for the jury by including a neutral instruction can
result in an impermissible comment on the weight of the evidence because the instruction
“‘singles out a particular piece of evidence for special attention,’” which the jury may then
focus on as guidance from the judge. Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App.
2000) (quoting Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995)).
Our holding in Walters provides the rule for trial judges to follow when considering
whether the inclusion of a non-statutory jury instruction constitutes an impermissible
comment:
[G]enerally speaking, neither the defendant nor the State is entitled to a special
jury instruction relating to a statutory offense or defense if that instruction (1)
is not grounded in the Penal Code, (2) is covered by the general charge to the
jury, and (3) focuses the jury’s attention on a specific type of evidence that
may support an element of an offense or a defense. In such a case, the
non-statutory instruction would constitute a prohibited comment on the weight
of the evidence.
Walters, 247 S.W.3d at 212.
Beltran De La Torre - 8
The issue in Walters was whether the defendant was entitled to a non-statutory
instruction informing the jury that it could consider prior verbal threats in deciding the issue
of self-defense. Id. at 207. We held that the trial court had not erred by denying such an
instruction because it would have constituted a prohibited comment on the weight of the
evidence. Id. at 214. Applying the rule described above, we observed that the substance of
the instruction was “covered by the self-defense charge given,” and thus it was “simply
unnecessary” and “fail[ed] to clarify the law for the jury.” Id. at 212, 214. We further
reasoned that the instruction “focuse[d] the jury’s attention on a specific type of evidence that
could support a finding of self-defense” and “improperly [told] the jury how to consider
certain evidence before it.” Id. at 213-14. Accordingly, we held that the defendant was not
entitled to the instruction. Id. at 214.
Over the past two decades, both before and after Walters, we have been consistent in
using essentially the same approach to non-statutory jury instructions. That is, we reject non-
statutory instructions as improper comments on the weight of the evidence where such
instructions are unnecessary to clarify the law and they also draw the jury’s attention to a
particular type of evidence. See, e.g., Kirsch, 357 S.W.3d at 652 (holding that an instruction
defining “operate” in a DWI case was an impermissible comment on the weight of the
evidence because it “improperly impinged on the jury’s fact-finding authority by limiting the
jurors’ understanding of what evidence could constitute” the element of operating); Bartlett,
270 S.W.3d at 153-54 (rejecting an instruction stating that the jury could consider evidence
Beltran De La Torre - 9
of the defendant’s refusal to take a breath test in prosecution for DWI because such
instruction served no function other than to “improperly tend to emphasize the evidence of
the appellant’s refusal to submit to a breath test,” and had the potential to “obliquely or
indirectly convey some [judicial] opinion on the weight of the evidence by singling out that
evidence and inviting the jury to pay particular attention to it”) (internal quotations omitted);
Brown, 122 S.W.3d at 796, 802-03 (rejecting an instruction that “intent or knowledge may
be inferred by acts done or words spoken” because while neutral, it focused the jury’s
attention on evidence that might support a finding of criminal intent, improperly told the jury
how to consider certain evidence, and improperly instructed the jury on a rule of appellate
evidentiary sufficiency review).
Although our recent cases are consistent in finding that non-statutory instructions are
generally disfavored, this rule is not without exceptions. Specifically, we have recognized
that a jury charge may properly include definitions for non-statutorily defined terms that
“‘have a known and established legal meaning, or which have acquired a peculiar and
appropriate meaning in the law, as where the words used have a well-known common law
meaning.’” Green v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015) (quoting Kirsch,
357 S.W.3d at 650);4 see also Medford v. State, 13 S.W.3d 769, 772 (Tex. Crim. App. 2000);
Grotti v. State, 273 S.W.3d 273, 281 (Tex. Crim. App. 2008) (“Terms which have a technical
4
In Green, we held that this exception for technical definitions was inapplicable. Green, 476
S.W.3d at 445-46. Instead, we applied reasoning similar to that in Kirsch to reject a trial court’s
instructions defining “penetration” and “female sexual organ” in a prosecution for aggravated sexual
assault. Id.
Beltran De La Torre - 10
or legal meaning may require an explicit definition.”). Such terms are “‘considered as having
been used in their technical sense,’ and, therefore, it is not error for the trial court to include
in its instructions ‘a precise, uniform definition’ to guide the jury’s deliberations.” Green,
476 S.W.3d at 445 (quoting Medford, 13 S.W.3d at 772). An instruction is particularly
appropriate “when there is a risk that the jurors may arbitrarily apply an inaccurate definition
to the term or where an express definition of the term is required to assure a fair
understanding of the evidence.” Grotti, 273 S.W.3d at 281; see, e.g., Medford, 13 S.W.3d
at 772 (stating that where a defendant is on trial for the offense of escape, a definition of
“arrest” should be included in the jury charge despite the lack of an applicable statutory
definition for that term because “‘[a]rrest’ is a technical term possessing a long, established
history in the common law, and it would be inappropriate if jurors arbitrarily applied their
personal definitions of arrest”).
I. Under the applicable law, both the joint-possession and mere-presence
instructions were improper.
The jury instructions at issue in this case are: (a) the included instruction on joint
possession, and (b) the proposed but rejected instruction on mere presence. As discussed
below, both of these instructions are improper comments on the weight of the evidence
because each was unnecessary to clarify the applicable law and drew the jury’s attention to
evidence supporting a particular party’s theory of the case. See Walters, 247 S.W.3d at 212.
A. The joint-possession instruction was an improper comment on the
weight of the evidence.
Beltran De La Torre - 11
As noted above, the trial court included in the jury charge the following instruction
on joint possession: “Two or more people can possess the same controlled substance at the
same time.” This instruction: (1) was unnecessary because the statutory definition of
“possession” is broad enough to encompass the concept of joint possession; and (2) drew the
jury’s attention to evidence that would support the State’s argument that Appellant possessed
the drugs along with the other individuals in the vehicle. The instruction, therefore, amounts
to an improper comment on the weight of the evidence.
This non-statutory instruction, while substantively correct, was unnecessary because
the general charge left ample room for the parties to argue the concept of joint possession.
The jury charge included the applicable statutory definition of possession. See T EX. H EALTH
& S AFETY C ODE § 481.002(38) (“‘Possession’ means actual care, custody, control, or
management.”). While this statutory definition does not expressly mention the possibility of
simultaneous possession of the same narcotics by multiple people, neither does it preclude
such a theory of joint possession. The State was free to argue the concept of joint
possession—that is, that Appellant exercised “actual care, custody, control, or management”
over the drugs along with the other individuals present. But the State was not entitled to a
special, non-statutory instruction emphasizing to the jury that such a conclusion would be
permissible. Under these circumstances, the instruction was “simply unnecessary” to clarify
the applicable law on possession, which was adequately covered by the charge on the
statutory definition of possession. Walters, 247 S.W.3d at 214.
Beltran De La Torre - 12
The joint-possession instruction also drew the jury’s attention to evidence that would
support a finding that Appellant jointly possessed the drugs along with the other individuals
present. By highlighting one particular path to establishing the element of possession (e.g.,
through a finding of joint possession by multiple individuals), the instruction focused the
jury’s attention on that particular type of evidence and impermissibly guided the jury’s
assessment of the evidence of possession. See Brown, 122 S.W.3d at 801. This instruction
could have been viewed by the jury as “obliquely or indirectly” conveying the trial court’s
opinion of the evidence by “singling out” the State’s theory of joint possession and “inviting
the jury to pay particular attention to it.” Id.; see also Bartlett, 270 S.W.3d at 154. Thus, the
non-statutory instruction was both unnecessary to clarify the applicable law and
impermissibly focused the jury’s attention on a particular theory of the evidence, in violation
of the prohibition against comments on the weight of the evidence. See Walters, 247 S.W.3d
at 212.
In defending the inclusion of the joint-possession instruction, the State Prosecuting
Attorney argues two main points with which the court of appeals agreed in its analysis. First,
the SPA argues that the term “possession” has acquired a technical legal meaning that
includes the concept of joint possession, such that an instruction defining “joint possession”
is permissible under our reasoning in Medford. Second, the SPA argues that without the
joint-possession instruction, jurors may be confused and believe that the statutory definition
of “possession” requires proof of exclusive possession. Unlike the court of appeals, we are
Beltran De La Torre - 13
unpersuaded by such arguments.
To the first point, the joint-possession instruction at issue here does not fall within the
type of permissible technical instructions that we approved of in Medford, 13 S.W.3d at 772
(approving of non-statutory instruction defining technical term “arrest”). As an initial matter,
we question whether this instruction is properly understood as providing a definition at
all—it does not refine or change the meaning of what constitutes possession; it simply tells
the jury that possession is something multiple people can do at the same time. Even if we
were to agree that the instruction here operates as a definition, we would nevertheless
conclude that the Medford rule does not apply.
Medford permitted non-statutory instructions for undefined statutory terms that have
acquired a technical meaning in the law. Here, the term at issue, “possession,” is statutorily
defined. Even accepting that “possession” is a legal term of art that includes the concept of
joint possession, the Legislature has already provided the applicable technical definition for
that term. See Christian v. State, 686 S.W.2d 930, 932 (Tex. Crim. App. 1985) (“The
Legislature has given a technical meaning to the term ‘possession:’ ‘actual care, custody,
control, or management.’”). The jury was properly charged on this statutory definition, and
it was not for the trial court to add to the Legislature’s definition by supplementing it with
an instruction on joint possession. The rule in Medford permitting definitions for technical
legal terms is inapplicable here.
To the second point that jurors may mistakenly believe that the statutory definition of
Beltran De La Torre - 14
possession requires proof of exclusive possession such that a clarifying instruction is
necessary, we reiterate that the State was free to argue that the statutory definition of
“possession” includes the concept of “joint possession.” No additional definition was
necessary.
We understand the SPA’s concern about possible jury confusion and are not entirely
unsympathetic, but this concern does not justify submission of a special, non-statutory
instruction on joint possession. The SPA’s argument is based on the speculative assertion
that jurors will not apply the statutory definition of possession as it is written. Such an
assertion runs contrary to the principle that “[w]e generally presume the jury follows the trial
court’s instructions in the manner presented.” Colburn v. State, 966 S.W.2d 511, 520 (Tex.
Crim. App. 1998); see also Casanova v. State, 383 S.W.3d 530, 543 (Tex. Crim. App. 2012)
(we usually presume “that jurors follow the trial court’s explicit instructions to the letter”).
While it is true that the charge must prevent confusion, see Hutch, 922 S.W.2d at 170, there
is nothing indicating that, in reality, jurors are likely to be confused about whether “actual
care, custody, control, or management” means “exclusive care, custody, control, or
management,” such that a clarifying instruction would be needed. In fact, on the contrary,
our cases reflect that juries have properly applied the statutory definition of “possession” in
convicting defendants where joint possession was an issue.5 Such cases demonstrate that
5
See, e.g., Tate v. State, 500 S.W.3d 410 (Tex. Crim. App. 2016) (jury convicted defendant
of possession of a controlled substance under circumstances showing joint possession of drugs by
multiple individuals in a car); Blackman v. State, 350 S.W.3d 588 (Tex. Crim. App. 2011) (same).
Beltran De La Torre - 15
juries are capable of understanding the concept of joint possession even without a special,
non-statutory instruction on that issue. Thus, it is the State’s job, and not the trial judge’s
job, to emphasize the concept of joint possession to the jury.
In sum, the trial court’s instruction on joint possession was unnecessary because the
general charge to the jury was broad enough to encompass the concept of joint possession.
The jury here was properly charged on the statutory definition of possession, and no other
instruction was required to inform the jury of the applicable law for that statutory element.
Although the State was free to argue to the jury that Appellant jointly possessed the drugs
along with the other occupants of the vehicle, it was not entitled to a special instruction
highlighting its theory of joint possession. The trial court’s instruction impermissibly drew
the jury’s attention to the possibility that Appellant had jointly possessed the drugs, and
further could have been interpreted by the jury as implicitly signaling the trial court’s belief
that the evidence established the element of possession. The instruction, therefore, was an
impermissible comment on the weight of the evidence, and the court of appeals erred in
holding otherwise.
B. Appellant’s requested instruction on mere presence would have
been a comment on the weight of the evidence and thus was
properly refused.
Once the trial court included the joint-possession instruction, defense counsel
requested, but was refused, a mere-presence instruction. While defense counsel did not
submit a written request, presumably the instruction he sought was: “Mere presence at a
Beltran De La Torre - 16
place where narcotics are found is not enough to constitute possession.” Such an instruction
would have been improper, just as the joint-possession instruction was improper, because it:
(1) was unnecessary to clarify the applicable law when the statutory definition of
“possession” (“actual care, custody, control, or management”) adequately informed the jury
that mere presence is not enough to establish the element of possession; and (2) focused the
jury’s attention on Appellant’s defensive evidence supporting his position that he did not
possess the drugs. Thus, the court of appeals properly upheld the trial court’s refusal of the
instruction.
First, the statutory definition of “possession” was adequate to convey to the jury that
a person’s mere presence at a place where narcotics are found is not enough to constitute
possession. A person who is merely present at the scene where narcotics are found does not
exercise “actual care, custody, control, or management” over the drugs. A mere-presence
instruction would simply state the opposite of, or negate, the element of possession and is
wholly unnecessary. See Bartlett, 270 S.W.3d at 154 (discussing as improper comment an
instruction that did not “inform the jury of anything it [did] not already know” and did
“nothing to clarify the law”). Such an instruction also runs counter to the principle that a
defendant is not entitled to special instructions on non-statutory defensive issues that go no
further than to negate an element of the State’s case. See Walters, 247 S.W.3d at 209 (“[I]f
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
Beltran De La Torre - 17
judge should not instruct the jury on it.”); see also Giesberg v. State, 984 S.W.2d 245, 250
(Tex. Crim. App. 1998).6
Second, a mere-presence instruction would focus the jury’s attention on evidence
supporting Appellant’s defensive theory that he was unaware of the drugs, and they belonged
to someone else. This would be an instruction from the trial judge that would improperly
emphasize one possible view of the evidence. See, e.g., Kirsch, 357 S.W.3d at 652
(instruction improper if it “impermissibly guide[s]” jury’s consideration of evidence and
“improperly focuses the jury” on certain evidence); Brown, 122 S.W.3d at 802 (instruction
may not “focus the jury’s attention on the type of evidence that may support a finding” on
a statutory element). Thus, the mere-presence instruction would amount to an impermissible
comment on the weight of the evidence. See Walters, 247 S.W.3d at 212. Accordingly,
Appellant was not entitled to a special, non-statutory instruction emphasizing that particular
theory as a possible avenue for acquittal. We therefore uphold the court of appeals’ decision
finding no error in the trial court’s refusal to instruct the jury on mere presence.
Conclusion
6
In a 1975 decision, this Court did indicate that where the appellants raised the defensive
theory of “mere presence,” they “were entitled to a charge on this defensive issue,” and it was error
for the court not to include the requested instruction. McShane v. State, 530 S.W.2d 307, 308 (Tex.
Crim. App. 1975); but see Dabbs v. State, 507 S.W.2d 567, 570 (Tex. Crim. App. 1974) (reaching
opposite conclusion from McShane and holding that mere presence was adequately covered by
general charge). After McShane, this Court decided Giesberg, which established that a defendant
is not entitled to an instruction on a defensive issue “which is not recognized by the Legislature as
either a defense or as an affirmative defense” and “merely negate[s] an element of the offense.” 984
S.W.2d 245, 250 (Tex. Crim. App. 1998). Therefore, in light of Giesberg and subsequent cases
affirming this rule, McShane is no longer good law for the proposition that a defendant is entitled
to a mere-presence instruction.
Beltran De La Torre - 18
Although we agree with the court of appeals that the instruction on mere presence was
not required here and was properly refused, we disagree with its conclusion upholding the
instruction on joint possession.7 The joint-possession instruction was unnecessary,
impermissibly focused the jury’s attention on particular evidence, and thus constituted an
improper comment on the weight of the evidence. Therefore, the trial court’s charge was
erroneous. We reverse the judgment of the court of appeals and remand this case for a harm
analysis on the joint-possession instruction. See Almanza v. State, 686 S.W.2d 157 (Tex.
Crim. App. 1985).
Delivered: September 18, 2019
Publish
7
We acknowledge that, in rejecting both instructions as improper comments on the weight of
the evidence, we part ways with the recommendations of the Texas Committee on Pattern Jury
Charges. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Criminal Pattern Jury
Charges: Intoxication, Controlled Substance & Public Order Offenses PJC 41.6 (2019) (suggesting
that instructions on “joint possession” and “mere presence” are permissible when raised by the facts).
As the Committee recognizes, there is “clear tension” between our older cases that were more
permissive in allowing non-statutory instructions and our “later emphasis on the need to avoid
commenting on the evidence.” Id. Applying our more recent decisions to the situation at hand here,
for all of the reasons discussed above, the instant instructions fall within the category of improper
emphasizing/highlighting instructions that we have consistently rejected as impermissible judicial
comments. See, e.g., Kirsch, 357 S.W.3d at 652; Bartlett, 270 S.W.3d at 152; Brown, 122 S.W.3d
at 802.