I'm going to post two, and see which structure you guys think we should use. We're going to trial on Tuesday on a Possession of Marihuana, DFZ w/D/W. Quantity of the M/J is over 4 oz and under 5 lbs. So we've got a SJF enhanced to a 3rd deg by the DFZ and a D/W just for fun. On the indictment, we've got the DFZ listed first.

Jury Charge I:

Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, BAD GUY, on or about the 29th day of September, 2006, in Potter County, Texas did then and there knowingly or intentionally possess a usable quantity of marihuana in an amount of five pounds or less but more than four ounces, you will find the defendant guilty of the offense of possession of marihuana as alleged in the indictment and so say by your verdict.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict, �Not Guilty�.

V.

Further, if you find the defendant, BAD GUY, guilty, as alleged in the indictment, and you find from the evidence, beyond a reasonable doubt that the defendant did commit the offense within 1,000 feet of real property that is owned, rented or leased by a school or school board, then you will find the Special Issue �True�. Unless you find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt as to whether this offense was committed within 1,000 feet of real property that is owned, rented or leased by a school or school board, you will answer the Special Issue �Not True.�


VERDICT FORMS

(2) VERDICT OF THE JURY

We, the jury, find the defendant, BAD GUY, guilty of Possession of Marihuana, as charged in the indictment.

SPECIAL ISSUE I

We, the jury, find it (True or Not True) that the defendant,BAD GUY, did commit this offense in, on or within one thousand feet of real property that is owned, rented or leased by a school or school board.


______________________________
Presiding Juror

SPECIAL ISSUE II

You are instructed that if you find the defendant guilty you will also answer a special issue concerning a deadly weapon.

I.

�Deadly Weapon� means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

"Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

"Bodily injury" means physical pain, illness or any impairment of physical condition.

II.

Now, if you have found the defendant guilty and you further find beyond a reasonable doubt that the defendant used or exhibited a deadly weapon, namely, a firearm, during the commission of the offense or during immediate flight therefrom, you will answer the following special issue "Yes," and so state in your verdict, but if you do not so find, or if you have a reasonable doubt thereof, you will answer the following special issue "No," and so state in your verdict.

Do you the Jury find from the evidence beyond a reasonable doubt that the defendant used or exhibited a deadly weapon, namely, a firearm, during the commission of the offense or during immediate flight therefrom,

Answer "Yes" or "No"

[This message was edited by Philip D Ray on 08-29-08 at .]

Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about the 29th day of September, 2006, in Potter County, Texas, the defendant, BAD GUY also known as BAD GUY, did then and there intentionally or knowingly possess a usable quantity of marihuana in an amount of five pounds or less but more than four ounces, and you further find the defendant, did commit the offense in, on or within one thousand feet of real property that was owned, rented or leased by a school or school board, then you will find the defendant guilty of possession of marihuana in a drug free zone, as alleged in the Indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of Possession of marihuana in a Drug Free Zone and next consider if the defendant is guilty of Possession of marihuana.

Now if you find from the evidence beyond a reasonable doubt that on or about the 8th day of June, 2006, in Potter County, Texas, the defendant, BAD GUY also known as BAD GUY, did then and there intentionally or knowingly possess a usable quantity of marihuana in an amount of five pounds or less but more than four ounces, you will find the defendant guilty of the offense of Possession of Marihuana and say so by your verdict.

Unless you so find beyond a reasonable doubt that the defendant is guilty of the offense of Possession of Marihuana, under the instructions given to you here, or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of Possession of Marihuana.

If you find from the evidence beyond a reasonable doubt that the defendant is either guilty of Possession of Marihuana in a Drug Free Zone, or is guilty of the lesser offense, Possession of Marihuana, on the other hand, but you have a reasonable doubt as to which of the two she is guilty of, then you should resolve that doubt in the defendant's favor and find her guilty of the lesser offense of Possession of Marihuana.

If you have a reasonable doubt as to whether the defendant is guilty of any offense inquired about in this charge, then you will find the defendant not guilty.

VERDICT FORMS

(2) VERDICT OF THE JURY

We, the jury, find the defendant, BAD GUY also known as BAD GUY, guilty of Possession of Marihuana in a Drug Free Zone, as alleged in the Indictment.


(3) VERDICT OF THE JURY

We, the jury, find the defendant, BAD GUY also known as BAD GUY, guilty of the lesser included offense of Possession of Marihuana.


SPECIAL ISSUE II

(Same as the first Jury Charge)

[This message was edited by Philip D Ray on 08-29-08 at .]

[This message was edited by Philip D Ray on 08-29-08 at .]

Keeping in mind that the DFZ is an element of the offense that elevates the SJF to a 3deg, which way would you charge the jury?

And, strategy wise, would you prep a charge that has the lesser included?

I shortened the charges to make things clearer. I've only included the application paragraph and the differences in the first and second charge. Maybe that will help someone offer an opinion.

I like the second one. I think I would also include the Poss w/o the DFZ just in case the jury doesn't believe the DFZ applies.

Yeah, the second one has the lesser included. I'm considering bringing both options to the trial and letting the Defense attorney make a decision. Either way, I think we're legally sufficient. I can't see a "strategy" advantage either way.

What do you guys think?

Technically, the DFZ is a punishment issue (assuming it's not jurisdictional) as is the DW finding. I've seen them put in either guilt or punishment charges just depending on the preference of the judge or the defense. Otherwise either charge looks fine but warnerbee makes a good point about separating out the DFZ from the possession.

One thing may affect your decision (or not) - if the special issues are in the punishment charge, the charge would have to set out the punishment range and parole/good time implications of each answer. A sympathetic or crackpot juror might let this affect his answers to the issues.