Jury Instructions by a Judge in a DWI Driving While Intoxicated Trial

The Accused is called the defendant just because it’s an easier way of saying he’s a citizen accused. He’s not the citizen guilty. He’s assumed innocent — presumed innocent. But he is gonna be called the defendant just because it’s easier. That’s not any indication of guilt. He is accused and charged with committing the offense of driving while intoxicated. So this particular trial will be that subject matter of driving while intoxicated.

Now, I’d asked you if any of you know any of us. And I’m also gonna ask you this. If you have a phone, which I do up here, but if you have a phone on you or beeper or anything, just make sure, if you haven’t already, that it’s already turned off and the volume’s down and off. Go ahead and do that while I’m talking.

This trial, like all criminal trials in this state and all of the states of the United States, goes in two very distinct phases. The first phase of a criminal trial is where the judge or the jury — in this case the jury– decides whether the defendant is guilty or not guilty. Obviously that’s the most important part.

The second part, if the defendant is found guilty, is punishment. And in that case the defendant is entitled to select whether the judge or the jury assesses punishment. And in this case today the Judge will assess punishment. And, again, only if there is a verdict of guilty that’s returned by the jury.

And there are 16 of y’all, and out of this we’re going to select six of you. And I’m gonna explain it to you. There’s a reason we don’t see this on television. It’s not very dramatic. It’s very important to get a good jury and one that’s gonna be fair to everybody, but, it’s — you know, it can be tedious. But we just don’t go on and on about it. They have 30 minutes to each side. They’re gonna ask you some questions in just a minute. But I’m gonna give you some information just so you’ll sort of know where we’re going and maybe that we don’t have to hear it again and again.

The — Some of your original juror members have already been eliminated downstairs because of what we call exemptions. Some people can choose not to take the exemption. It could be age, it could be having children at home, or somebody you have to care for or things like that that are listed on the back of what used to be a little bitty postcard and now you probably got a letter of two or three pages. But that’s the first level of elimination of a jury panel. Okay?

So what we’re gonna do today is go to the next level of elimination. This is not a deal where we say we like him, we like her, we like him, him. You know, it’s not that kind of deal. We go in numerical order. So where is my little jury sheet here? Right here. We all got one of these. It’s got your name on it.

And Juror Number 1 is Mr. Gleason. And Mr. Tatum you’re Number 8, and Number 9 is Mr. Stephens, and Mr. Ratner, you are Number 16. But that doesn’t mean y’all are safe back there. Because we — I mean, don’t be sitting there yawning because we oftentimes go back there. But in numerical it’s the first six people that have not been eliminated. And I’m gonna tell you what this elimination means, but let’s back up and talk about what we’re doing today.

The process of voir dire is one of selection of a jury by elimination. The attorneys are gonna ask you a lot of questions. They’re not meant to pry into your personal life or the personal lives of your friends, but they might, and if they do so, and you don’t wanna answer in front of your new 15 best friends, then you need to tell us. And that way when we’re finished, when we do our challenges, they’ll be outside the presence of the jury, and you can also come in and tell us the story that you wanna tell us. It’ll just be amongst us and on record, but it won’t be in front of everybody, if you have a problem with that. But we won’t know. We won’t know if it’s a sensitive subject unless you let us know.

So be sure and say that. You’re not gonna be in any trouble or anything like that.
These questions are aimed solely at seeing if you can be a fair juror in this case. It doesn’t mean we only want fair people. Of course, we’re gonna make the assumption here that everybody’s a fair person. But when it comes to something like the Cowboys playing the Steelers, you might be not exactly a fair person. You might be swayed on one side or the other so everybody’s fair. It just that in this particular case, with this particular set of facts, with this particular offense you might have some problems in being fair.

So any bias or prejudice that you may have against the people involved, whether it’s the defendant, the police officers, the witnesses, whatever, any bias or prejudice you may have about the law will naturally prevent you from following your oath as a juror on the jury panel. So it’s very, very important to be blunt and to be truthful. Because it’s not wrong if you have a bias or prejudice against police officers, for instance. It’s not wrong if you have a bias or prejudice against the law as it stands now.

You might think it’s way to strict and you might think it’s way too lenient. And that’s okay. The main thing is – I mean, even though some of us — Maybe sometimes it’s the whole panel and sometimes it’s at least –more likely than not it’s half of the panel — has some kind of experience in the past with DWI, whether it’s something — somebody they know or something that happened to them or they had a DWI or whatever. And that’s not gonna prevent you from being on the panel, because you know Accused had absolutely nothing to do with that.

So the Accused would have absolutely nothing to do with that. You know? If he had caused serious bodily injury or anything like that in the DWI, we wouldn’t even be in this court. So we know that he had nothing to do with that and he is presumed innocent. So you can set those experiences aside and follow the law. That’s real important. But if you absolutely think anybody that’s accused of anything is Automatically guilty, that’s a problem. Or automatically not guilty, or anything that a police officer or anybody says is the truth and totally 100 percent credible, then that might be a problem. Because they’re like everybody else. Some of ’em are and some of ’em aren’t. You’ll get it as we get into it. Okay?

The second — The next level of elimination is that each side — and I’m gonna call ’em sides here — have three strikes. Just like baseball. And they can take ’em for any — any reason at all. And they may strike — Let’s say they strike number one but not number two or three or number four and strike number five. So those people are out of the panel. And we still — We start numerically with you, if nobody has stricken or struck you, and go further. But they only have three on each side, so that’s gonna leave ten on the panel.

The final level of eliminating a juror from the panel is called a challenge for cause. And this is a variety of reasons. One is what I referred to earlier. If you absolutely 100 percent think somebody’s guilty or think, you know, somebody’s terrible or somebody’s believable or unbelievable or whatever, no matter what you hear, then that’s probably going to get you a challenge for cause. But a lot of times it’s this. An attorney will come up ask some questions.

And I will say that I try to pay attention to all the questions and things like that, but there’s sometimes when I don’t quite understand the question myself or I don’t quite get what they’re getting to. And because I’m a lawyer and a judge, I’ve heard a lot. You haven’t. If you’re a med tech, if you’re a doctor, if you’re in software and stuff like that and you started talking to me about that, I would be totally lost. Okay? So it’s the same thing. You’re gonna be a little lost at first. Maybe even at the end you’re still a little lost, but at the end of the trial you’ll get it.

But you may have answered something absolutely no or yes, absolutely yes, I agree with that. And then as it goes down — they’ll ask Juror 3, Juror 4, Juror 5, Juror 6 and go on down the row, then you realize — or they change the question just a little bit enough to make you realize that that’s not really what they were asking in the first place. Or as you get through it you think, oh, okay, yeah, that’s true. I hadn’t thought about it that way, and I wanna change my answer. When you’re drawn back in here, if there’s a challenge, or if it’s just something we wanna clarify, and you change your answer, that’s fine. You know, if you didn’t understand it, or whatever, that is absolutely fine. Don’t even be embarrassed to do that. If you wanna stick by your answer no matter what, stick by your answer no matter what.

Okay. The amount of these challenges of cause — all of ’em. I mean, there’s no three strikes, three challenges for cause. There’s an unlimited amount of challenges for cause. We’re hoping we can get a panel of six on this. We usually do.

If you’re selected to serve as a member, we’ll be out of here by twelve, and we will start the trial on Monday morning. If you have nonrefundable tickets to Tahiti, I think that’s something we should know before you’re selected on a jury. If you are scheduled for surgery, that’s something we should know. If you have to work and it’s real important — I think everybody has to work and it’s real important.

So that’s really not an excuse. But if it’s something that hits that level, then please let us know. You’d be surprised how — I bet there’s been three or four times we’ve picked a jury and one of the jury members tells me that after everybody’s gone. And, you know, it’s like I can’t do anything about it at this point. Okay? So be sure and tell one of the attorneys that or raise your hand and tell me that before, you know, y’all step out the door. When we’re finished with this you’ll step outside the double doors and wait to see if any of y’all are called back in. Run down to the restroom or get water, or whatever, you want to.

Now, I’m gonna quit here in just a minute.

The function of the jury is to decide what the facts are. That sounds a little weird, but it’s true. You decide what the facts are. And in doing that you weigh the credibility, the imbalance of what they had to say, of each of the witnesses, any of the evidence that you hear. So if we all agreed what the facts were, I bet we wouldn’t be in trial today. Right?

Now, interestingly, I know as much about the facts of this case right now as you do. And that’s the way it’s supposed to be for the judiciary. I don’t know anything about the facts. I haven’t read anything. I don’t know anything. The attorneys don’t talk to me about it, unless they’re both together, and then I’d be hearing both sides. But I don’t know anything about it. I don’t know if we have one witness or six witnesses. But I do know on Monday we’ll finish the trial, because we normally do. If I’m wrong and somebody can’t go late, or whatever, then we’ll try it more on Tuesday.

So that’s a possibility. It’s a distinct possibility, it’s a very slight possibility, but it’s still there. So think about Tuesday as well when you’re talking about what you have to do.
So the jury determines what the facts are. My job is to determine the law. When there are objections and so forth, I’m kind of like a referee and I keep things going and follow criminal procedure and so forth and so on. But your job is the most important. And that’s to determine what the facts really are.

I will rule on the admissibility of evidence. Let’s say, like you see on TV, somebody makes an objection. It’s hearsay. And let’s say that I agree. I’ll sustain the objection if I agree to it. If I don’t think it’s hearsay — because there are exceptions to hearsay. I mean… Boring. There are exceptions to hearsay. — I will overrule the objection. So I am trying to follow the law as I understand it and as I read it and so forth.

I — If I sustain one attorney, every single one of his or her objections and overrule every single one of his or her objections over here, that does not mean I’m trying to subliminally give you an idea of how I would go or what I would say or I don’t like one side or I don’t like the attorney or I don’t like their client. It does not mean that at all. Okay? It doesn’t have anything to do with it.

Sometimes we might have argument of counsel over an objection. And that’s the sort of thing that the jury leaves the court and they go back into the jury room for. There are certain things that a jury cannot be present for, and that’s one of them. So don’t concern yourself. Just figure that you got an extra break that we don’t have. And I’ll try to break at least once every hour, but if you need a break before then, just raise your hand and say you want a break. I am not against breaks.

All right. Here’s very quickly a few general principles of law that you need to understand. The first is called the burden of proof. That means that — In a criminal case the State always has the burden of proof. It never shifts over to a defendant. The State has to prove each and every element of the offense of driving while intoxicated to you. Each and every one of ’em.

But the burden of proof — Let’s start out and say it’s a dog bite case. Your neighbor’s dog came over and bit you on the leg. You are taking this — this neighbor to court. And you must show by what’s called a preponderance of the evidence, 51 percent to 49 percent, at least, to win. You have the burden of proof to show by the evidence that that dog came over to your yard bit you, whatever the elements are, and these are your medical expenses and you want that money.

Okay? That’s your case sort of. And you have the burden of proof of showing that. Of course, they can say, well, you’ve got a big hole in your fence and you don’t keep your fence right and you’re out there with a slab of T-bone on your leg and that’s why. You know, so it kind of shifts back and forth. But whoever wins, they win it by a hair. Just like the scales of justice. By a hair.

Now, if you’re trying to put somebody in a mental facility or you’re trying to take somebody’s child away from them and terminate their parental rights, it’s a higher burden of proof. Wouldn’t it be? It’s a higher burden. It’s clear and convincing evidence. It’s not a feather more. It’s clear and convincing evidence to do something that serious.
But in a criminal case it’s even higher because it affects somebody’s liberty, or could. I mean, even if they’re placed on probation, it affects their liberty in a way. But it is beyond a reasonable doubt in a criminal case.

You know what reasonable means and you know what the word doubt means. And if you have a reasonable doubt as to the guilt of the defendant, you have to return a verdict of not guilty. If you don’t have a reasonable doubt, then you return a verdict of guilt. But that’s what beyond a reasonable doubt means. Okay? And there are all kinds of levels.

There is a level of proof to pull over somebody. It’s kind of — It’s the lowest level, but it’s called reasonable suspicion. You might hear about that. And then they pull over somebody, they talk to ’em, they test ’em, whatever they do and whatever crime there is — and like I said, I don’t know anything about this case — they have to have what’s called probable cause to arrest ’em. And there are certain things that are outlined in case law and so forth that say what probable cause is. So then you go to this point and it jumps up quite a bit.

You have to show beyond a reasonable doubt that the defendant is guilty.

Okay. So that’s kind of your law lesson 101 you can go home and impress everyone with this new knowledge that’s so riveting. But it’s important today. Okay? It’s important.
The defendant, The Accused, in this criminal case is not required to prove himself innocent. He is presumed to be innocent. All of us are presumed to be innocent if we’re accused of any offense. If he does not choose to testify, you may not hold that against him in any way. You can’t even talk about it; you can’t allude to it, anything like that when you’re back in the jury room to deliberate on a verdict. Because that absolutely is a nonissue. Okay?

Now, I will have the district attorney read from this official court file. And they’ll read from what is called the information. It is merely a means that a case is filed in all of the states of the United States. It is not an indication of guilt whatsoever. The fact that he’s here is not an indication of guilt whatsoever.

All right. The — Again, going back to the reasonable doubt, the point I wanna make on that is this is not Perry Mason. Somebody’s not gonna stand up in the courtroom and confess. And this is not beyond a shadow of a doubt, and it’s not beyond all possible doubt. It’s a doubt that is reasonable. So there’s a difference there. Okay? Not all-possible doubt. At the end of the trial I’m gonna read you the Court’s charge which will contain this again. So — basically. Not quite as intense as I’m giving it to you now.
The defendant in this case today, the defense attorneys, as well as the prosecutors and the State of Texas all — our whole system of justice all require that a fair jury be chosen here today.

One without bias or prejudice, one that’s free of opinion as to the guilt or innocence of the defendant. A fair jury is one not having heard any of the evidence is not committed to either side. You cannot be committed to either side at this point. A fair juror is one that is impartial to both sides and can and will follow the law.

Now, the DWI law is defined in the Penal Code. And, of course, remember, it’s written by lots of lawyers, and nonlawyers as well, and it’s kind of tedious sometimes, but it contains one word three times. And that one word is “or.” So the DWI law contains lots of words, and the one word that’s key is intoxicated. And intoxicated is defined by that little word called “or.” One way or this way or this way.

Now, this way could be your favorite way. You like that. All by alcohol. It’s not by any other way — any other means. They have to prove it by alcohol in this case. But you may say I really have to have that before I can — before I can find a person’s DWI. Maybe it’s the test; maybe it’s the other two ways. You really have to have it. Well, that is not following the law. Because if it was one way by a test and a person didn’t take a test, you think anybody else would ever take a test? No. I mean, that’s one way to find intoxication. So following the law is following the law. That’s divided by the word “or.” Not “and.” “Or.” So remember that when we get into it. And they’re probably gonna put that up there in just a minute and you’ll see what I mean.

So the attorneys are gonna ask you some questions. And they’re not meant to pry. Let us know if they do.
I am winding up now. And I’m certifying the jury panel has been duly qualified, and we will continue with the — we will start the voir dire proceeding.

The Attorneys
  • Francisco Hernandez
  • Daniel Hernandez
  • Phillip Hall
  • Rocio Martinez