Texas Stamp


PD-0715-17 12/13/2017

1. “The court of appeals employed the wrong analysis, when reviewing the record to determine whether ‘voluntary intoxication’ instruction was an error to include in Appellant’s punishment – phase jury charge.”

2. “The inclusion of an 8.04(a) instruction at punishment violates the Due Process Clause because it could mislead a rational jury into believing that it could not—as a matter of law—consider a defendant’s drug-addiction evidence as mitigation; thus the court of appeals holding that it is not a charge error conflicts with applicable holdings of the U.S. Supreme Court.”

3. “In it’s [sic] harm analysis of the State’s unconstitutional jury argument, the court of appeals did not address how that argument highlighted inadmiss[able] evidence and how it impermissibly increased the likelihood that the jury punished Appellant specifically for an extraneous crime.”

Smith was convicted of aggravated robbery with a deadly weapon. At punishment, Smith’s sole witness, a medical expert on drug addiction, testified that Smith reported using Xanax since his childhood and at the time of the offense and that Xanax can cause aggressive or criminal behavior by reducing inhibitions. Over Smith’s objection, the punishment charge included an instruction that voluntary intoxication is not a defense to a crime.  See Tex. Penal Code § 8.04(a). During closing argument, the prosecutor referred to a capital murder Smith committed the day before this offense. The prosecutor directed the jury’s attention to his lack of remorse and failure to react when evidence about it was presented. The jury sentenced Smith to life imprisonment.

A plurality of the court of appeals held that the submission of the instruction was not erroneous, even if it was out of place. Surplusage may render a charge imperfect without creating error. It accurately set out the law and did not tell the jury to disregard evidence of voluntary intoxication. Also, the charge expressly stated the jury could consider “all” the evidence. Accepting Smith’s argument, the lead opinion observed, “this court would have to say that a charge that tells the jury it can consider all evidence means the jury could not consider some evidence.” The concurring justice believed the jury charge was erroneous but not harmful. Next, a majority assumed that the prosecutor’s comment violated Smith’s right against self-incrimination but held the error was harmless beyond a reasonable doubt. It was brief and not stressed during argument. And Smith’s record of violent conduct and statements made after the murder showed he was focused on his future and not remorseful.

Justice Christopher dissented. She believed the intoxication instruction was erroneous and that Smith suffered “some harm.” The instruction could have confused the jury because it was not limited to Smith’s prior extraneous offenses, as the State argued. The instruction also told the jury it could not consider evidence of addiction as mitigating and undermined his sole defense. So the later charge referring to “all” the evidence did not overcome the specific instruction.  Also, the prosecutor told the jury that it was “no mitigation for his activity.” The trial court echoed this when justifying its inclusion in the charge. Lastly, she observed that Appellant was sentenced to life and mitigating evidence is used to argue for leniency.

Smith complains that the majority did not consider whether the instruction was a comment on the weight of the evidence and failed to determine if it was charge error under Tex. Code Crim. Proc. art. 36.19. Instead, it wrongly focused on jury confusion. Smith asserts that it was erroneous because it is a guilt-only issue. The plain language of the instruction told them not to consider the evidence. And the word “defense” in layman’s terms could mean punishment evidence. Finally, addressing the prosecutor’s closing remarks, Smith complains that the court of appeals did not consider its impact in light of interconnected inadmissible victim impact testimony about an extraneous crime. Also, he contends harm should be assayed in light of the cumulative errors.

Contact Us

Mailing Address

P. O. Box 13046
Austin, Texas 78711-3046

Physical Address

209 W. 14th Street
Austin, Texas 78701


(512) 463-1660


(512) 463-5724