D pled not true to jurisdictional paragraphs and "dared" us to prove. they are proven. Judge has jury charge that includes a special issue as to whether the jury believes priors to be proven or not. Anyone have a copy of a jury charge where this has been an issue?

I know, I can't spell!!!

Under current law, the prior offenses should be submitted as an element of the offense on trial (i.e., in the application paragraph). The jury either finds the defendant guilty of felony DWI or of nothing. There is no need for any separate "special issue". Alternatively, I guess the defendant asks for submission of his theory in the form of a request for a lesser included offense. But, I assume there is no evidence he is guilty only of the lesser offense, he just wants the jury to nullify the legislature's chosen penalty for his offense. That is not a proper basis for a charge on the lesser offense.

A proper application paragraph would read:

Now, if you find from the evidence beyond a reasonable doubt that on or about January 1, 2006 in Lubbock County, Texas the defendant, AB, was intoxicated and that, while intoxicated, he operated a motor vehicle in a public place and if you further find from the evidence beyond a reasonable doubt that the defendant, previously thereto, had been twice convicted of offenses relating to the operating of a motor vehicle while intoxicated, to wit: in Cause No. 123 in the County Court of Loving County, Texas and in Cause No. 124 in the County Court of Ward County, Texas as alleged in the indictment, then you will find the defendant guilty of the felony offense as alleged in the indictment.

Why isn't this wording on the TDCAA "Jury Charges" page on our website?

Thanks for the replies guys.

After several revisions, the charge has come back with no "special issues" or other attachments. Judge actually included three application paragraphs (one for each possible way to convict in legalese), and the charge seems very confusing. Will let yall know how it turns out and will now have a copy of how to not do this charge!!!

Thanks all,

W

John, this language isn't on the jury charge bank because none of the charges are set up to give detailed sample application paragraphs. Instead, we direct users to insert the language from their own indictment/information. Why? That seemed like the safest route that would allow for the broadest applicability for the bank.

If there's a foolproof way to give sample application paragraphs that would be helpful -- and not potentially misleading -- for everyone for all charges, that would be great. But the authors and TDCAA haven't yet figured out a great way to do that.

We're open to suggestions. In fact, we'd be delighted to hear suggestions. Please feel free to post or e-mail me (beckham@tdcaa.com) and I'll pass the suggestions along to the authors.