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Click here for the full text of this decision FACTS: The appellant appeared at his estranged wife’s apartment one night and fired a shot through the front door, killing her boyfriend, Theron Gray. The appellant did not deny that he fired the fatal shot; rather, his defense was that he did not have any intent to kill Theron Gray. Over the appellant’s objection, the trial court instructed the jury that: “Intent or knowledge may be inferred by acts done or words spoken.” The jury convicted the appellant of capital murder and sentenced him to life imprisonment. The court of appeals affirmed. The court of criminal appeals granted review to decide whether “[t]he Court of Appeals erred in holding that the trial court properly instructed the jury that it could infer appellant’s intent by his acts done and the words spoken.” HOLDING: The court affirms the court of appeals. In Browning v. State, 720 S.W.2d 504 (Tex. Crim. App. 1986), the court explained that giving an instruction to the jury on these judicial evidentiary sufficiency review rules improperly picks out one specific, though entirely logical, inference that could flow from the base facts from all other plausible inferences: “In any given case the jury could make any number of reasonable inferences. But when the trial court, the only source of law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference. In fact neither statute nor caselaw provides such a “presumption” at the trial level. Instructing the jury that it does constitutes, in effect, a comment on the weight of the evidence. The court does not hold that the jury may not make such an inference, nor that an appellate court in reviewing the sufficiency of the evidence may not assume that the jury made such a reasonable inference. The error lies in instructing the jury that they may apply such an inference.” In homicide prosecutions, the defendant’s state of mind is a question of fact that must be determined by the jury. The intent to kill cannot be presumed as a matter of law. The jury may, of course, infer intent from any facts in evidence which it determines proves the existence of such intent to kill, such as the use of a deadly weapon. Nevertheless, a court may not instruct a jury that “intent to kill may be inferred from the use of a deadly weapon” because that instruction would be an impermissible comment on the weight of the evidence. It singles out a specific type of evidence and tells the jury that it may infer an element of the crime (such as criminal intent) from that evidence. A court’s jury instruction could violate article 36.14 less obviously. For example, it might obliquely or indirectly convey some opinion on the weight of the evidence by singling out that evidence and inviting the jury to pay particular attention to it. On this near end of the “improper-judicial comment” spectrum is an instruction that is simply unnecessary and fails to clarify the law for the jury. The court concludes that the instruction “intent or knowledge may be inferred by acts done or words spoken” falls on the near side of the “improper judicial comment” scale. While the instruction is certainly neutral and it does not pluck out any specific piece of evidence, it does focus the jury’s attention on the type of evidence that may support a finding of criminal intent. The court holds that this instruction marginally falls on the wrong side of the “improper-judicial-comment” scale because it is simply unnecessary and fails to clarify the law for the jury. It is not a statutory presumption, but it is a judicial review device for assessing the sufficiency of evidence to support a jury’s finding of culpable intent. It is a common-sense tool for a trial judge to use in gauging the sufficiency of the evidence at a motion for directed verdict or motion for new trial and for sufficiency review by appellate courts, but it is not an explicit legal tool for the jury. Thus, the trial court erred in giving this instruction to the jury. Because this instruction was benign, albeit improper, the court holds that the error was not, in any sense, harmful. OPINION: Cochran, J., delivered the opinion of the Court in which Keller, P.J., Meyers, Price, Womack, Johnson and Holcomb, J., joined. CONCURRENCE: Hervey, J., filed a concurring opinion in which Keasler, J., joined. “I disagree that the trial court commented on the weight of the evidence when it instructed the jury that”intent or knowledge may be inferred by acts done or words spoken.’ This instruction does not”express any opinion as to the weight of the evidence’ which is what the plain language of Article 36.14, Tex. Code Crim. Proc., actually prohibits. See also Brown v. State, S.W.3d slip op. at 6 (Tex.Cr.App. No. 0059-03, delivered this date) (comment on weight of evidence is”any remark [by the trial judge] calculated to convey to the jury [the trial judge's] opinion of the case’); Watts v. State, 99 S.W.3d 604, 611 n.24 (Tex.Cr.App. 2003) (Article 36.14 forbids trial judge from”any discussion in the jury’s presence of evidence adduced at trial which might suggest to the jury the judge’s personal estimation of the strength or credibility of such evidence or which might tend to emphasize such evidence by repetition or recapitulation’). In addition, Article 36.14 does not contain an”improper-judicial-comment’ sliding scale as explained by the Court’s opinion. See Brown, slip op. at 7 (“far end’), at 9 (“middle’), at 11 (“near end’). The Article 36.14 issue simply is whether the instruction”expresses [the trial judge's] opinion as to the weight of the evidence.’”

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