shumpert holding that the state has no burden to disprove medication and continuing through the court's recent decision in stockey just this past november the court has consistently held that first and second degree murder have the same elements that a lack of medication is not an element of first degree murder and that the state has no burden to disprove medication these precedents are correct the plain language of the murder statutes places the burden of proving proving medication on the defendant now what does that burden mean in this context it means he must persuade all twelve jurors by a preponderance of the evidence of medication and if he falls short then the verdict of guilty of first degree murder which has already been found unanimously by the jury must stand if we flip that around and we instead say the defendant is guilty of first degree murder only if all of the jurors can agree that there is no medication then what we're actually doing is facing a burden on the state to disprove medication which is contrary to the plain unambiguous language of the murder statutes in this court's precedent the crux of the defendant's side is that if some jurors believe the verdict should be guilty of second murder then necessarily the jurors do not unanimously agree that the defendant is guilty of first degree murder but that simply misunderstands the nature of the murder statutes the second  second degree murder is a lesser mitigated offense to first degree murder the defining characteristic of this lesser mitigate it is is that the mitigating factors do not negate any element of first degree murder the mitigating factors are completely independent of the elements of first degree murder and in fact the first and second degree murder have all the same elements and require the same mental states the defendant here from articles written by the drafters of the legislation that second degree murder was intended as an act of legislative grace it is an opportunity for someone who has committed murder to nonetheless show circumstances that may justify a lesser punishment but if this core holds that proving every element of first degree murder yada reasonable doubt is not unique scheme that the general assembly created in this situation where second degree murder is first murder plus something else so the fact that some jurors think that he has shown mitigation as i said doesn't negate any of the elements of first free murder and and to say that a hung jury result rather than standing by the unanimous finding that the state has proven only every element of first degree murder not a reasonable doubt simply doesn't comport with the intent of the legislature here  to say that the state has proven every element of first degree murder you had a reasonable doubt but none the less we're going to have a hung jury if the defendant can't meet his  showing mitigation by a preponderance of the evidence would lead to absurd consequences for thirty years we've been telling jurors don't even consider second degree murder unless you first found that the state has proven every element of first degree murder beyond a reasonable doubt very many times we haven't been requiring special verdict forms for jury polling and we have not seen a rational hung jervas hung juries it seems that the juries during this time as well as the courts and the litigants have understood that a lack of unanimity on medication properly results in a verdict of guilty of first degree to to make it a lesser included offense the general assembly knew how to do that if they wanted it to be an affirmative defense that the state had to disprove beyond a reasonable once raised the general somebody knew how to do that the fact that it is somewhat unique within criminal law does not mean that we shouldn't follow the expressed intent of the general assembly and the question that the jurors asked here which was for approving mitigating factors to reduce the charge to second degree murder if the one mitigating factor revert to first degree murder that question itself suggests that the jurors actually understood the proper interplay between first and second degree murder in this case and they were merely seeking a confirmation of that understanding from the but it is true that they the claims fail for the exact same reason even though they are legally distinct they both fail because a lack of unanimity on second degree murder properly results  murder and it is irrelevant how many jurors short of twelve thought that the defendant had met his burden of showing medication additionally even if there was some error in the manner influence the jury's verdict or reopen deliberations and further questioning in this case would have done just that it would have invited explanation from the jersey about their verdict and it could have given the appearance of pressuring jers to change their us not straight out with the issue about you know mr verdict in the second degree area but in this argument you make that the error here which you say is minor it is the failure question would be did instruct the jury as to the elements and the how first and second degree murders were together and i think there's no objection to that instruction and i assume that the judge provided it when the court says your verdict must be unanimous and the zero three choices isn't that the court saying if you're not going to amazon second degree then your choice is either to be unanimous on guilty of first degree or not guilty of first degree well that's exactly the finding of the finding by any one juror of a mitigating factor negates first degree murder isn't that the basis of everything here and when statement eight first what's the purpose of the question asking you for your decision on  questions i just want to make sure it was kind of a preface to your argument really the issue although technically framed as an abuse of discretion by the trial judge to poll the jury with respect to the question i think you are going to say the issue is really and that's how he argument's gone his word jury splits on the presence of a statutory mitigating factor is the result a conviction for first degree murder right right because how will he answer that question necessarily handles the the technical issue of whether there was abuse of discretion of the state's rape there's obviously no abuse of discretion if you're right there was right right my question for you is is there anything about the statute that would lead us to believe it was meant to operate in such a way that a single vote for the presence of a mitigating factor in negates the already decided first degree right there's no this is not the hunger is over here now there are i understand this is a problem if we if we disagree with your understanding of that one jerk and binding mitigating factors vision to find not guilty of murder we disagree with that you still maintain  i agree with the defendant that the the core question in this appeal is what the correct answer to the jury's question here was and as the prosecution argued in the t correct answer to the jury's question was yes the defendant says that he was denied the right the constitutional right to a unanimous jury but there is no other context and certainly defendant hasn't pointed to one where we would look outside of the elements of the crime for which the defendant was convicted to determine whether the verdict was unanimous  there's three elements to murder we don't have to ask about anything outside of those three elements to determine whether the defendant was accorded his right to a unanimous jury certainly the judge here could have  d just as rice was talking about the the pattern jury questions jury instructions as as we see in the existing pattern jury instructions once the jury finds the defendant that the state has proven every element of first degree murder beyond a reasonable doubt there's only two options is the defendant guilty of first degree murder or guilty  murder and the fact that these have been the pattern jury instructions for so long my opponent is talking about well should we create a new pattern jury instructions that would it str jurors if you're not unanimous on medication then you're a hung jury the fact that we haven't had that instruction for thirty years and instead we've had instructions that say we find all of the elements of first degree murder are your options guilty of first for guilty of second that's just further evidence of the intent of the legislature and the understanding of the pattern jury instructions committee and litigants for the last thirty years that under this court's precedents from shumpert on lack of unanimity on medication results in a verdict of guilty of first degree murder do you perceive any recognized that under u s supreme court precedent that is a a permissive bowl scheme that he can have the burden of showing  this mitigating factor to reduce his punishment for second degree murder and it's it really goes to what the court was just discussing that it is putting a burden on the state if we say that the jury has to unanimously agree that there is no middle age when we're talking about a burden of proof hundreds of the evidence there's no daylight between the burden on the putting the burden on the state on the one hand and putting the burden on the defendant on the other if you're going to say that the jury has to be unanimous in its decision that there's no medication then you are in fact putting a burden on the state albeit by a preponderance of the evidence but you're putting a burden on the state to disprove mitigation and that's directly contrary to the language of the murder my opponent discussed the the legislative history and the legislative debates and the articles written by the legislations drafters shows that the entire  the amendment was to put the burden on the defendant and not on the state and defendants proposed construction does just the opposite the rule of levy doesn't bite here because we don't need to guess what the legislature intended we have plain language in the statute saying it's the defendant's burden to prove mitigation we have the statements during legislative debate saying the point it's it's implicit in it but not x said i think it comes down to what are the logical consequences of those statements in the legislative history as well as whatever are the logical consequences of this court's holding it's that first and second degree have the same elements that lack of mitigation is not an element of first degree murder and that the state doesn't have a burden to disprove it if you accept all of those as true then you cannot accept the defendant's proposed construction of the murder statutes and the state is not presuming that the court needs to construe criminal statutes in a way that makes it easier for the state to secure convictions thus the state is merely asking the court she confirmed that legislative intent how in the in the attempted murder context that mitigation can be a sentencing factor and intentionally that could be a legislative fix here but the only reason it's a lead it's a sentencing factor in the attempt on texas because this court called in lopez that there's no so fine as attempted second degree murder and that's because the attempt statute the specific language of the attempt statute says that the defendant has to have the specific intent to commit a crime it's not that they have to have the mens rea are required by the underlying crime so that's a completely separate issue but nothing stops the trial court here if a defendant has put on evidence of mitigation but the jury has not nana mislead read on mitigation and returned a verdict of guilty of second degree murder the trial court can absolutely consider that and in this case most likely did the sentencing range for second degree murder is four to twenty years the sentencing range for first degree murder is twenty to sixty years defendant here received a sentence of twenty five years likely on the basis of that evidence of medication that he presented so it's not that mitigation is the court here could provide additional guidance or there could be additional pattern jury instructions i don't think it's necessary in this case because we've had thirty years of existing instructions and stick you and we have not seen overwhelming confusion in this area certainly there are places that could be turned to the old death penalty statute seven twenty aisles yes five slash nine dash one she could provide a roadmap for explaining that if the party bearing the burden here the defend it cannot convince all twelve jurors of medication then he doesn't he doesn't get the medication he wanted but we don't throw the whole thing out it's not a hung jury  go back to what the jury has already agreed on similarly the head injury instructions for lesser included offenses that are injury instruction twenty six point zero one q could provide some guidance except in that scenario because the burden in this case is on the defendant you would flip it around the greater offense in this situation would actually be