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Function of Juries & Jury Nullification | 27 Apr 2015

-Texas Appeals Court Upholds Jury Instructions

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LawBooksLast week we reported news of a San Antonio trial that was temporarily halted as prosecutors appealed the judge’s decision to allow the jury to consider a lesser included offense of simple assault in a case that resulted in a death. In this case, an unnamed juvenile, who was being picked on at school reportedly warned those who were throwing things at him and otherwise bullying him to stop or he would retaliate. When the behavior continued, he waited outside his classroom and punched one of them twice when he emerged, knocking him unconscious. His classmate was hospitalized and ultimately pronounced brain dead.

In this case, prosecuting attorneys wanted the jury only to consider charges of murder, with a penalty of up to 40 years in prison, and manslaughter, with a penalty of up to 20 years in prison. The defense requested and the judge granted an additional instruction to the jury that allowed them to consider convicting the defendant of simple assault, which would have a greatly reduced penalty in comparison to the other two offenses. The trial was put on hold and the jurors sent home indefinitely while the prosecutor appealed this instruction to the Third Court of Appeals of Texas, who ruled on Friday, by 2-1 vote, in favor of including the simple assault instruction.

In the majority opinion, upholding the jury instructions, Justices Pemberton and Bourland noted that the instructions do not preclude the prosecution from pursuing the charges it considers most appropriate. They merely include another lesser charge, which in no way prevents the jury from convicting on the more serious charges. Justice Puryear dissented.

At this point, the trial could be continued, or alternatively, the prosecution may instead decide to seek relief from the Texas Supreme Court.

Court backs judge in punching death trial

Defense attorney Joseph E. Garcia III said he was just glad they got a ruling.

“I was just wanting to get back in the court and let’s get this thing settled,” Garcia said. “I think they got it right.”

Jennifer Tharp, Comal County criminal district attorney, said Saturday she hadn’t decided whether to take the case to the Texas Supreme Court. She planned to work through the weekend and come up with a decision, Tharp said.

“While we were hoping for a different outcome on the Mandamus, our writ was an appropriate and necessary use of legal action as confirmed by the dissenting opinion of Justice Puryear,” she said. “The appellate court decided that the State does not have a right to appeal Judge Stephens’ ruling and failed to settle the issue we presented for review.

“We respectfully stand by our objection and intend to press forward as we carefully review all options available to protect the rights of the victim in this case and ensure the rule of law prevails throughout our community.”

Court Documents:
Memorandum Opinion in re The State of Texas ex rel. Jennifer A. Tharp, Texas Court of Appeals, Third District, at Austin, No. 03-15-00223-CV
Dissenting Opinion in re The State of Texas ex rel. Jennifer A. Tharp, Texas Court of Appeals, Third District, at Austin, No. 03-15-00223-CV

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