Case Summary - Luis Noe Barrios v. State

The State charged and convicted Barrios of capital murder, but did not seek the death penalty. The jury charge instructed the jury to acquit Barrios of capital murder before considering whether he was guilty of the lesser included offense of robbery. The jury charge also instructed the jury that it should resolve any reasonable doubts as to which offense (capital murder or robbery) Barrios was guilty of in favor of Barrios.

On appeal, Barrios complained that the jury instruction required the jury to unanimously agree that he was not guilty of capital murder before going on to consider whether he was guilty of the lesser included offense of robbery. The court of appeals rejected this argument and affirmed. According to the court, the jury charge as written clearly contemplated that that the jury would consider the lesser included offense before unanimously deciding to acquit of the greater. [Here's a link to the court of appeals case info.]

The Court of Criminal Appeals affirmed. Barrios argued that jury unanimity is required for a verdict of acquittal as well as for a verdict of guilty, and that the sequencing of the instruction prevented the jury from considering the "benefit of the doubt" portion of the instruction. As Barrios argued, if the jury convicted of the greater offense, it never got to the benefit of the doubt instruction. The Court rejected this argument, noting that the jury's decision regarding the order in which the charge is read, is left to the jury. The jury considers the evidence in light of the entire charge as a whole, and having heard the "benefit of the doubt" portion when the charge is read to them by the trial court, will have considered that portion before considering the issue of guilt.

The Court also noted that using the phrase "or if you are unable to agree, you will next consider" instead of "you will acquit . . . and next consider" may clear up any confusion. Using this phrase would make clear to the jury that it may, at its discretion, consider the lesser-included offense before making a final decsion. However, the charge in this case allowed the jury to consider the entire charge as a whole; it did not require the jury to unanimously acquit before considering the lesser-included offense. Presiding Judge Keller concurred without an opinion. [Here's a link to the underlying court of criminal appeals case info. Here's a link to audio for the oral argument, while it lasts.]

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I've actually felt kind of bad as I seem to beat up on Johnson a lot. It's not some personal thing against her, it's just the fact that lately her opinions have been kind of Souter-ish. So I'm glad to be able to say that this is really a wonderful opinion from her. Well, maybe wonderful is too strong a word, but definitely good compared to her other swings and misses. It's tighter, and it refuses to regard the jury a mindless automatons that follow instructions like a computer.

It does occur to me that this prevents the State from arguing that the jury doesn't even get to the lesser if it finds he's guilty of the greater. But, if you go with the idea that the jury charge must be considered as a whole, it does seem that necessarily follows. In any event, that's what the State argued, so any problem with that was built into the case from the start. Sure, she could've said "What's wrong with sequential charging, anyway", but doing that would've been going beyond what the parties were arguing, and she deserves credit for her restraint. The majority does not hold that an acquittal must be unanimous, too. Regardless of whether that's a correct reading of the law, it doesn't need to be decided here. And the suggested language change is pretty practical, though not ultimately necessary because of the holding. The defense will certainly request it now, but any problem with that is the same problem with the idea that the jury charge should be considered sequentially rather than as a whole.