First, let me state that NO, this didn't happen to me! But here's the question---in a FELONY case, where is the authority for the district judge to grant a "directed verdict" or "instructed verdict?" Also, is there a difference in these two animals? I've had all sorts of motions for directed verdicts made at almost all of my trials after I've rested and none, of course, have ever been granted. However, this question was recently posed and I'll be darned if I can find the provision in the CCP which addresses this issue. Have I overlooked something?

You're not the first person to ask this question, although I think this is the first post on the issue.

1. I think the other side would have to argue it is an inherent power of the court. Nothing in the Code seems to authorize it.

2. As far as I've been able to tell, an instructed verdict and a directed verdict are the same thing.

3. We know that trial courts do not have the power to render JNOV, which is similar to an instructed or directed verdict in many respects. State v. Savage, 933 S.W.2d 497 (Tex. Crim. App. 1996).

4. The CCA, however, has treated the overruling of a motion for directed verdict as a ruling which a defendant can challenge on appeal. See, e.g., Canales v. State, 98 S.W.3d 690 (Tex. Crim. App. 2003).

5. Savage may be distinguishable from directed verdict cases because of the fact that the jury has rendered a verdict of guilty, and the Code gives a court no authority to do anything but render a judgment on that verdict.

6. There may be a shortage of authority on the point because prosecutors lacked the authority to appeal for many years, and because we cannot now appeal a judgment of acquittal. You'd probably have to file a mandamus to get an opinion on the issue.

This message has been edited. Last edited by: JohnR,

Thanks, John. I hoped I wasn't missing something obvious. Another thing that concerns me about this the more I get into it is how TRAP 21.3 allows the trial judge to grant a new trial when, inter alia, "the verdict is contrary to the law and the evidence." Of course, the granting of a new trial is something far different from directing a verdict of acquittal. But wouldn't we be pretty much talking about the same standard of review for both issues, i.e., legal sufficiency of the evidence to support each element of the indictment?

There is a specific statute in the CCP providing for a directed verdict in justice or municipal court (45.032) but not one for district or county courts. Is this just a legislative oversight or is there a reason for it?

Perhaps the directed verdict question should also be considered with a view toward those CCP provisions that establish the jury as the judge of the facts (36.13) and the fact that the trial court can allow additional evidence to be presented "at any time before the argument of counsel." (36.02).

Although I have had such a motion asserted in just about every trial I've ever participated in, now I'm wondering if there's really any valid legal basis for such a motion. And, if such a motion were granted by a trial judge, and one sought mandamus, I would hope that there would be no double jeopardy concerns that would come into play assuming the court of appeals agreed that the trial judge overstepped his or her authority.

I will admit up front that my experience almost exclusively deals with civil mandamus, but one recognized ground for mandamus in a civil case is to vacate an order that was void ab initio (such as the grant of a motion for new trial after the court's plenary power has expired). If the judge has no authority to enter the order, and it is therefore void, it is conceptually difficult to conceive how a void act could cause jeopardy to attach.

Scott, assuming the courts have no inherent authority to grant a directed verdict, then certainly it would be the type of order you could set aside via mandamus. The victory would be probably not save the case, because it would be almost impossible to find those 6 or 12 jurors days, weeks, or months after they were discharged, re-assemble them, and obtain a valid verdict. It would be an important victory, however, because then we'd have authority to prevent it from happening again.

That aside, mandamus is a pain.

In one instance the court "instructs" the jury to render a verdict of acquittal. In the other he merely "directs" them to do this (this sounds a little nicer to them). And in neither event does the judge actually submit the case to the jury since "this may stimulate juror resentment . . . and also raises the potentially troublesome problem of a jury refusing to be bound by the instruction". Go figure.

I think the authority is constitutional in nature, though the courts apparently say it derives from art. 1.27. Westergren, 707 S.W.2d at 263-4. See Dix & Dawson, 43 Tex.Prac. at 17-9.

Assuming there is a constitutional basis for such a motion, what of the circumstance when it is granted despite the fact that the record would reflect that sufficient evidence exists for the case to go to the jury? Should there be an amendment to the Code of Criminal Procedure authorizing the state to appeal a grant of IV/DV, at least where the record would reflect that a jury issue was presented (not that it would ever come to fruition over the almost assuredly vociferous objections of the criminal defense lobby)?

We did have such a development occur recently involving another one of our prosecutors which peaked my interest in this matter. I didn't attend the trial so I'm really not in a position to say what happened other than relate that the prosecutor feels that he had presented at least legally sufficient evidence to support each element of the charge. My thought has always been that so long as there was "some evidence" to support each element regardless of the source or how credible, the case should go on to the jury. In speaking to others, including a couple of our judges, that seems to be everyone's understanding. But everyone is at a loss as to the "source" of this understanding unless it is some common law sort of thing. Seems to me that this is a procedural issue where some legislative guidance or clarification is needed. Otherwise, we are left with a situation where a judge might very well be invited or tempted to substitute his or her judgment for that of a jury in an arbitrary and capricious manner and the state be left without recourse. Shannon, are you listening?

Also, I'm curious as to whether any other prosecutors have had directed verdicts granted against them or are aware of same happening. What was the standard used by the judge?

Lee, I have to doubt very many trial judges ever articulated their "standard". I assume the procedure is used most often when the judge tries to "force" a case to trial and the State is not then prepared to go to trial (though some judges have tried to "dismiss" the case in that circumstance). Would a statute or rule limit that occurrence? As Dix notes, the Code does explicitly recognize such a procedure by name for at least one type of insufficiency. But there would seem to be a need to have some form of mechanism for review of these decisions (even if IV/DVs are rare).

Since the CCA recently clarified that insufficiency of the evidence need not be raised in the trial court to authorize appellate review, maybe we will begin to see fewer of these motions. Although I got a DV (in my favor) one time in a civil case, I have not seen nor heard of this being much of a problem on the criminal side. Actually, I don't mind them, because occasionally the defense will point out something that will cause you to request permission to re-open or at least alert you to what needs to be covered more closely in the final argument.

But, Dix's conclusion is that Johnson, 283 S.W. at 810 "suggests" that the only proper mechanism for trial court review or assessment of the sufficiency of the evidence is the motion for new trial. So, maybe I too will start objecting to the making of the motion for instructed verdict. Hopefully, I will never be in the position of having to consider mandamus, but it looks like fertile ground to me.

[This message was edited by Martin Peterson on 06-30-04 at .]

Lee, it would be difficult to get any traction for a legislative change absent evidence that injustices are occurring under the current system. Since the only directed verdict entered against me back in the day was one that mercifully put down a misdemeanor case gone to hell, I had no desire to object to the motion or the ruling.

But this topic raises a bigger issue: an adverse DV ruling is yet another in a long list of things that the state cannot take up on direct appeal. THAT may be a more appropriate fix, or at least a start. What other things should be on that list?

State can appeal an illegal sentence, but courts have said that probation is not a sentence. So, judge can give defendant illegal probation without us being able to appeal. That is just wrong.

I appealed a sentence when the judge refused to make a finding on the two priors, both were third degree felonies at the time of the conviction but has since been changed to SJF. He just found they were inapplicable. My contention was that 12.42(d) was mandatory, the previous convictions were applicable; therefore, the sentence was illegal. The 11th court did not agree - See State v. Wooldridge, 11-03-00186-CR, 2004 WL 868200, 4/22/04. They dismissed - no jurisdiction because the sentence was not illegal since the trial court made no findings whether the previous convictions were true.

SPA has appealed, but we may have to live with the judge's discretion in following the mandate of 12.42(d). We also have judge's that simply find the priors not true in order to impose 12.42(d) minimums. How do others deal with this situation?

Just noticed this thread -- I have been waiting for the right case to argue that there is no right to a directed verdict unless the State has waived a jury. How can there be if a trial judge has no authority to serve as a fact finder absent the consent and approval of the State to the D's jury trial waiver? State ex rel. Curry v. Carr, 847 SW2d 561 (TCA 1992) and State ex rel. Turner v. McDonald fully set out our right to jury trial. Also, a FW case held that the trial court lacked authority to grant a directed verdict in a strange set of circumstances that did not include a trial (jury or otherwise) and, in that opinion, the COA attempted to define a directed verdict as an action taken by a judge during trial where the party with the burden has failed to make a prima facie case for the jury to consider. State v. Lewallen, 927 SW2d 737 (FW 1996). To support this definition, the Lewallen opinion refers to two civil cases, the Texas Civil Practice guide, and Black's Law Dictionary -- there is nothing in the CCP (there IS a federal rule). Also in Lewellan, the trial court's pre-trial "directed verdict" was considered, correctly so, an act terminating the prosecution and, thus, appealable. If a DV occurs mid-trial and, in so doing, the trial court acts without authority, isn't this mandamus worthy?

Actually, I've been wanting to test this arg following a granted M to Suppress where the record shows that, instead of deciding the matter on typical suppression grounds, the judge articulates that they don't think that there is sufficient evidence of guilt -- this happens to us occasionally -- had one not long ago, but had to decline the appeal b/c it had procedural probs.

Bottom line -- I think DVs are archaic motions that occur b/c, according to the mind-numbing maxim: "That's the way we've always done it," not b/c there is any authority supporting them.

In looking at another issue, I found Article 38.17, which specifically grants the trial court authority to instruct a verdict of not guilty in cases where, by law, the State is required to by law to provide a second witness (perjury and treason) or corroborate a witness (accomplice and confidential informant). Indeed, the statute contains mandatory language, the court "shall" instruct the jury and the jury is "bound" by the instruction. How 'bout them apples?

Hmmm. Applying the old fave inclusio unius est exclusio alteruis, seems that the required-two-witness circumstances are the only times a DV is authorized.

In reading my prior post, just realized I didn't mention article 36.11 "Discharge Before Verdict" which includes:
If it appears during a trial that the court has no jurisdiction of the offense, or that the facts charged in the indictment do not constitute an offense, the jury shall be discharged.

That provision obviously does not mention insufficient evidence situations and, if no 2nd witness requirement per 38.17 (thank you, John R), I'd again say that the authority for a DV is non-existent.

Just like a Fort Worth lawyer to whip out the Latin!

I have a counter argument to make, but I thought of yours, too. In any event, it was the first time I came across something . . .

Hard to tell for sure whether the court was holding the trial court erred in failing to grant the motion for instructed verdict or merely that the evidence was insufficient upon appellate review, but the practice is specifically mentioned in Pittman, 144 S.W.2d at 569. Just one more case you may have to deal with when the time comes Tanya.

From the original post:

"I've had all sorts of motions for directed verdicts made at almost all of my trials after I've rested and none, of course, have ever been granted."

Must be nice to prosecute in good ol' Polk County where the denial of directed verdicts is taken for granted. Come down to the Valley where one of our District Judges directed out an Indecency case because we did not present evidence of intent to gratify or arouse.

Gee, that must have been gratifying for someone. Guess the judge never read those cases that talk about inferring intent.

No, the Judge did not read them despite being provided with copies highlighting the relevant sections. His position was, "if the legislature did not intend it to be an element that required proof, they should not have put it in the definition"