CAUSE NO. 99-6378

THE STATE OF TEXAS V. MICHAEL SCOTT

IN THE 167TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS

CHARGE OF THE COURT

Ladies and Gentlemen of the Jury:

The defendant, Michael Scott, stands charged by indictment with the offense of Capital Murder, allege to have been committed in Travis County, Texas, on or about the 6th day of December 1991. To this charge the defendant has pleaded not guilty. You are instructed that the law applicable to this case is as follows:

1. A person commits the offense of Capital Murder if the person intentionally causes the death of an individual and the person intentionally commits the murder in the course of committing or attempting to commit burglary and/or robbery.

2. “Attempt” means to commit an act with specific intent to commit an offense where the act committed amounts to more that mere preparation but fails to effect the commission of the offense intended.

“Individual” means a human being who has been born and is alive.

3. A person acts intentionally, or with intent, with respect to the nature of is conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or case the result.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that circumstance exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that the conduct is reasonably certain to cause the result.

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the defendant’s standpoint.

4. A person is criminally responsible if the result would not have occurred but for his conduct.

5. A person commits the offense of burglary if, without effective consent of the owner, he:

(1) enters a building or any portion of a building not then open to the public, with intent to commit a felony or theft; or

(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or

(3) enters a building and commits or attempts to commit a felony or theft.

“Enter” means to intrude:

(1) any part of body; or

(2) any physical object connected with the body.

6. A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property.

Appropriation of property is unlawful if it is without the owner’s effective consent.

7. “Consent” means assent in fact, whether express or apparent.

“Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by force or threat.

“Owner” means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the defendant.

“Building” means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.

8. A person commits the offense of robbery if in the course of committing theft as hereinbefore defined and with intent to obtain nor maintain control of the property, he:

(1) intentionally, knowingly, or recklessly causes bodily injury to another; or

(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

9. “In the course of committing theft” means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.

10. Voluntary intoxication does not constitute a defense to the commission of a crime.

11. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.

A person is criminally responsible for an offense committed by the conduct of another if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in the furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.

Mere presence alone will not constitute one a party to an offense.

12. Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt, that the defendant, Michael Scott, on or about the 6th day of December, 1991, in the County of Travis, and State of Texas, as alleged in the indictment, either acting alone or with another or others as a party to the offense, as that term is hereinbefore defined, did then and there intentionally cause the death of an individual, namely, Amy Ayers, by shooting Amy Ayers with a firearm, a deadly weapon, or by strangling Amy Ayers with a ligature, a deadly weapon, while Michael Scott was then and there in the course of committing or attempting to commit the offense of robbery an/or burglary, you will find the defendant guilty of the offense of Capital Murder and so say by your verdict, but if you do not so believe, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict “Not Guilty.”

13. In a criminal case the law permits a defendant to testify in his own behalf but he is not compelled to do so, and the same law provides that the fact that a defendant does not testify shall not be considered as a circumstance against him. You will, therefore, not consider the fact that the defendant did not testify as a circumstance against him; and you will not in your retirement to consider your verdict allude to, comment on, or in any manner refer to the fact that the defendant has not testified.

14. You are instructed that under our law statements of a Defendant made to law enforcement officers may not be used in evidence against the Defendant unless it appears that the statements were freely and voluntarily made without compulsion or coercion.

Now, therefore, if you find from the evidence, or if you have a reasonable doubt thereof, that at the time of the making of this statements to officers of the Austin Police Department on September 9, 1999, through September 14, 1999, compulsion and/or coercion by said officers overbore the will of the Defendant and caused the Defendant to make said statements, thereby rendering said statements not voluntary, then you will completely disregard such statement as evidence for any purpose, nor will you consider any evidence obtained as a result thereof.

15. The defendant is on trial solely on the charge contained in the indictment. In reference to evidence, if any, that the defendant or accomplice, if any, has previously participated in other acts than that which is charged in the indictment in this case, you are instructed that you are not to consider such other acts, if any, for any purpose unless you find an believe beyond a reasonable doubt that the defendant or accomplice, if any, committed such acts, if any; and then you may only consider the same as evidence bearing on any contested issue, if it does, and give it whatever weight you believe it deserves, if any, but in no event shall you consider in any manner whatsoever said evidence as bearing on the general character of the defendant or any accomplice.

16. You are further instructed that the general purposes of our penal code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of the code are intended, and shall be constructed, to achieve the following objectives:

1. To insure the public safety through:

A. The deterrent influence of the penalties hereinafter provided;

B. The rehabilitation of those convicted of violations of this code; and

C. Such punishment as may by necessary or prevent likely recurrence of criminal behavior.

2. By definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation;

3. To prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders;

4. To safeguard conduct that is without guilt from condemnation as criminal;

5. To guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons suspected, accused, or convicted of offenses; and

6. To define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.

17. You are further instructed as part of the law in this case that the indictment against the defendant is not evidence in the case, and that the true and sole use of the indictment is to charge the offense, and to inform the defendant of the offense alleged against him.

The reading of the indictment to the jury in the statement of the case of the state against the defendant cannot be considered as a fact or circumstance against the defendant in your deliberations.

18. In all criminal cases the burden of proof is on the state. All persons are presumed to be innocent, and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with the offense gives rise to no inference of guilt at this trial. The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.

The prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt, and if it fails to do so, you must acquit the defendant.

In the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you and these instructions, you will acquit the defendant and say by our verdict “not guilty.”

You are charged that it is only from the witness stand that the jury is permitted to receive evidence regarding the case, or any witness herein, and no juror is permitted to communicate to any other juror anything he or she may have heard regarding the case or any witness therein, from any source other than the witness stand.

In deliberating on this cause you are not to refer to or discuss any matter or issue not in evidence before you; nor talk about this case to anyone not of your jury; and after the reading of this charge, you shall not separate from each other until you have reached a verdict. Further, you shall not discuss or consider the punishment, if any, which may be assessed against the defendant in the event he is found guilty beyond a reasonable doubt.

You are the exclusive judges of the facts proved, of the credibility of the witnesses and of the weight to be given to the testimony, but you are bound to receive the law from the Court, which is herein given you, and be governed thereby.

If the jury wishes to communicate with the court, it shall notify the bailiff, who shall inform the court thereof. Any communication related to the cause must be in writing, signed by the foreperson, and shall be submitted to the court through the bailiff.

After argument of counsel, you will retire and select one of your members as your foreperson. It is his or her duty to preside at your deliberations and to vote with you in arriving at a verdict. Your verdict must be unanimous, and after you have arrived at your verdict, you may use the form attached hereto by having your foreperson complete and sign it in conformance with your verdict.

Respectfully submitted,

/s/Mike Lynch
Presiding Judge

CAUSE NO. 99-6378

THE STATE OF TEXAS V. MICHAEL SCOTT

IN THE 167TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS

VERDICT OF THE JURY

We, the Jury, find the defendant, Michael Scott (guilty or not guilty) of the offense of Capital Murder.

/s/Foreperson of the Jury