Kirsch, Scott Alan
2012 Tex. Crim. App. LEXIS 142
| Tex. Crim. App. | 2012Background
- Kirsch was convicted of his second DWI offense under Tex. Pen. Code § 49.04(a).
- Incident: Julie Richards observed Kirsch straddling a motorcycle in the middle of a road and then falling; she reported the scene to authorities.
- Deputies Johnson and Turner observed signs of intoxication and conduct an intoxication investigation leading to Kirsch’s arrest.
- The trial court defined "operate" in the jury charge as "to exert personal effort to cause the vehicle to function," which defense objected to as inappropriate.
- The court of appeals affirmed, relying on Denton’s definition of "operate" for sufficiency, and Kirsch sought discretionary review, which this Court granted.
- The Court holds the trial court erred by defining the statutorily undefined term and reverses the court of appeals for remand on harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Definition of 'operate' in jury charge improper | Kirsch argues the definition is a non-statutory comment on weight of evidence. | State contends a defined term aids clarity and mirrors Denton. | Yes, trial court erred by defining 'operate' in the charge. |
| Preservation and harm analysis of jury-charge error | Error should be reviewed on the merits regardless of preservation. | Standard preservation rules apply; harm must be assessed if error occurred. | Remand to assess harm under Almanza/Abdnor framework. |
Key Cases Cited
- Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995) (defined 'operate' for sufficiency but not for jury instruction; undefined terms may be read in common usage at trial)
- Medford v. State, 13 S.W.3d 769 (Tex. Crim. App. 2000) (undefined terms construed by common usage vs. technical meaning)
- Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) (jury-charge error; harm analysis required; error not preserved as sole basis)
- Bartlett v. State, 270 S.W.3d 147 (Tex. Crim. App. 2008) (trial court improper comment on weight of evidence by focusing on certain evidence)
- Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003) (inference-limiting instructions can improperly direct jury toward certain evidence)
- Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007) (non-statutory instructions generally have no place in the jury charge)
- Dornbusch v. State, 262 S.W.3d 432 (Tex. App.--Fort Worth 2008) (definition of 'operate' examined in context of sufficiency; not for jury instruction)