            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00573-CR


                                Luis Felipe Rodriguez, Jr., Appellant

                                                   v.

                                    The State of Texas, Appellee



             FROM THE COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
                NO. 0793273, HONORABLE SHERRY L. HILL, JUDGE PRESIDING




                Appellant Luis Felipe Rodriguez, Jr. appeals his conviction for operating a motor

vehicle while intoxicated, misdemeanor repetition. See Tex. Pen. Code Ann. '' 49.04, .09(a) (West

Supp. 2002).1 The jury found appellant guilty and the trial court assessed his punishment at forty-five

days= confinement in the county jail and a fine of $1,000.


                                            Point of Error

                Appellant advances a sole complaint on appeal. He contends that the trial court erred in

including in the jury charge, over objection, a portion of the Geesa v. State, 820 S.W.2d 154 (Tex. Crim.

App. 1991), definition of reasonable doubt when that portion of Geesa had been overruled by Paulson v.

State, 28 S.W.3d 570 (Tex. Crim. App. 2000). We will affirm the trial court=s judgment.

                                             Information

        1
        These statutes refer to the offense as Aoperating@ rather than Adriving@ while intoxicated.
The word Adriving@ is no longer found in the body of the involved statutes.
                The information alleged that appellant on or about January 2, 2001, operated a motor

vehicle while intoxicated in a public place while Anot having the normal use of his mental and physical

faculties by reason of the introduction of alcohol into his body.@ The enhancement paragraph alleged a prior

misdemeanor conviction for operating a motor vehicle while intoxicated in Bexar County on April 3, 2000.


                                                    Facts

                Neither the legal nor factual sufficiency of the evidence is challenged. Briefly, the facts show

that in the early morning hours of January 2, 2001, Brian Brindley, a firefighter EMT, was on his way home

from work. A silver BMW automobile being driven erratically on Interstate 20 in Tarrant County, almost

ran Brindley=s vehicle off the road. Another minivan was forced off the road. Brindley followed the BMW

while calling 911 on his cell phone to report a possible intoxicated driver. Brindley observed the BMW

being driven erratically from one lane to another and varying its speed from eighty miles per hour to twenty

miles per hour. After following the car for ten miles, Brindley saw the BMW stop on the shoulder of the

road. Brindley stopped, approached the BMW, and opened the car door. Appellant was behind the wheel

and was alone. Appellant denied driving erratically or drinking alcohol. Appellant=s speech was slurred,

and he thought he was still in Plano. Based on his EMT experience, Brindley did not observe anything

medically wrong with appellant.

                Chris Bardwell, an off-duty Grand Prairie police officer, saw Brindley following the BMW,

which was weaving in and out of its lane of traffic and varying its speed. Bardwell also notified several

police dispatchers of a possible intoxicated driver. Bardwell stopped and parked behind Brindley.


                                                      2
                   Arlington Police Officer Christopher Caballos arrived on the scene where appellant,

Brindley, and Bardwell were parked. When appellant got out of the BMW, he swayed, was unsteady on

his feet, had the smell of an alcoholic beverage on his breath, and had bloodshot eyes. Appellant failed all

three field sobriety tests that he was asked to perform. In Officer Caballos=s opinion, appellant was

intoxicated. He was arrested.

                   A videotape was taken of appellant at the Arlington city jail approximately thirty minutes

after his arrest. The videotape was introduced at trial. On cross-examination, Caballos testified that

appellant was required to place his feet in certain designated footprints for the purpose of the tape. The

record reflects:


        Q. Okay. And his feet are close together. And the jury can see that he is not swaying at
           all on those lines, right?

        A. He does pretty good, yes, sir.

                   Appellant claims that the evidence shows a conflict as to whether he was intoxicated while

operating the BMW. At the close of the guilt/innocence stage of the trial, the trial court included in its jury

charge the following:


        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 otherwise charged with the offense, gives rise to no
        inference of guilt at his trial. The law does not require the 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.



                                                       3
        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.

        It is not required that the prosecution prove guilt beyond all possible doubt; it is
        required that the prosecution=s proof excludes all Areasonable doubt@ concerning
        the defendant=s guilt.

        In the event that 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
        your verdict Anot guilty.@


(Emphasis added)

                Appellant expressly objected to the giving of the third paragraph above in bold print. The

trial court was told that the objected-to paragraph had been a part of the Geesa definition of reasonable

doubt and that Geesa in this regard had been overruled by Paulson. Appellant=s objection was overruled.


                                                 Discussion

                ADespite its early use in American jurisprudence, the phrase >reasonable doubt= appears in

neither our federal nor state constitutions.@ Paulson v. State, 991 S.W.2d 907, 911 (Tex. App.CHouston

[14th Dist.] 1999), rev=d on other grounds, Paulson, 28 S.W.2d 570; see also In re Winship, 397 U.S.

358, 377 (1970) (Black, J., dissenting).

                We know, of course, that the due process clause of the Fourteenth Amendment to the

United States Constitution protects an accused against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with which he is charged. Winship, 397 U.S. at 364.

Although the Abeyond a reasonable doubt@ standard is a requirement of due process, the federal constitution


                                                               4
neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of

course. Victor v. Nebraska, 511 U.S. 1, 5 (1994). Moreover, the United States Constitution does not

require that any particular form of words be used in advising the jury of the prosecution=s burden of proof.

Rather, the jury instructions taken as a whole must correctly convey the concept of reasonable doubt to the

jury. Id.2

                Article 2.01 of the Texas Penal Code provides:


              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 he has been arrested, confined, or indicted for, or otherwise charged with, the offense
        gives rise to no inference of guilt at his trial.




        2
          In only one case has the United States Supreme Court held that a definition of reasonable
doubt in jury instructions violated the due process clause. Cage v. Louisana, 498 U.S. 39, 41 (1990).
There, the Court held that the particular instruction would have allowed the jury to base its verdict
on a degree of proof below that required by the due process clause. Id.




                                                     5
Tex. Pen. Code Ann. ' 2.01 (West 1994). The identical language is found in the Code of Criminal

Procedure. See Tex. Code Crim. Proc. Ann. art. 38.03 (West Supp. 2002). Despite different language in

the past, these statutes and their forerunners3 have been substantially the same. See Aston v. State, 656

S.W.2d 453, 456-58 (Tex. Crim. App. 1983). Neither section 2.01 nor article 38.03 define Areasonable

doubt@ for the purpose of the statute or for either code nor did their statutory forerunners do so. In the

absence of special definitions, statutory language can be measured by common understanding and practices

or construed in the sense generally understood. See Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.

App.CAustin 1995, pet. ref=d). Statutory words are to be read in context and construed according to the

rules of grammar and common usage. See Tex. Gov=t Code Ann. ' 311.011(a) (West 1998). Words and

phrases that have acquired a technical or particular meaning by legislative definition or otherwise shall be

construed accordingly. See Tex. Gov=t Code Ann. ' 311.011(b) (West 1998).4

                Long prior to Winship, a criminal defendant in Texas was entitled by statute to a jury

charge on proof of guilt beyond a reasonable doubt. McCracken v. State, 330 S.W.2d 613, 614 (Tex.

Crim. App. 1960), held that a defendant was deprived of Aa valuable right conferred by statute@ when the




        3
        The forerunners to section 2.01 are discussed in Paulson v. State, 991 S.W.2d 907, 911 (Tex.
App.CHouston [14th Dist.] 1999), rev=d on other grounds, Paulson v. State, 28 S.W. 570 (Tex. Crim.
App. 2000).
        4
          The Texas Legislature has not defined the term Areasonable doubt@ and it was not until
1991 that the Court of Criminal Appeals adopted a definition for the term. See Geesa v. State, 820
S.W.2d 154, 162 (Tex. Crim. App. 1991). Geesa=s definition has now been overruled by Paulson v.
State, 28 S.W.3d 570 (Tex. Crim. App. 2000).


                                                     6
jury charge failed to apply the law of reasonable doubt in submitting the case to the jury despite a special

requested charge. The cause was reversed.5

                Although a criminal defendant is entitled by statute to have the law of reasonable doubt

applied in the jury charge or instructions, he was not always entitled to have the term defined. See Pigg v.

State, 287 S.W.2d 673, 674 (Tex. Crim. App. 1956). AThe charge on reasonable doubt should be given

in the language of the statute; attempts to amplify it, explain it or belittle it almost invariably lead to a

reversal.@ 1 A. R. Stout, Branch=s Anno. Penal Code '16 (2d ed. 1956) (citations omitted); see also

Whitson v. State, 495 S.W.2d 944, 946 (Tex. Crim. App. 1973).

                Prior to the 1991 decision in Geesa and for well over a century, Texas trial courts normally

did not define Areasonable doubt@ in jury charges. See McGinty v. State, 723 S.W.2d 179, 721 (Tex.

Crim. App. 1986). This is not to say from time to time there were not definitions of Areasonable doubt@

submitted to juries, but these were not usually approved. See generally Craig Hemmens et al., ADoubt

Over Reasonable Doubt In Texas,@ 59 Tex. Bar. J. 130 (Feb. 1996). In Abram v. State, 35 S.W. 389,

390 (Tex. Crim. App. 1896), the trial court gave a definition of reasonable doubt which included the phrase

that A[t]he mere possibility that the defendant may be innocent will not warrant an acquittal upon the ground

of reasonable doubt.@ The court reversed the conviction pointing out that the trial court had done Aits whole

duty@ if it charged the jury in the language of the statute on reasonable doubt. The court added, AIt is not


        5
         The statute mentioned in McCracken was article 705 of the 1925 Code of Criminal
Procedure, a forerunner of article 38.03.




                                                     7
proper for the court to discuss what the reasonable doubt is . . . . The jury is as competent to determine

that as the court.@ Id. at 390; see also Marshall v. State, 175 S.W. 154, 155 (Tex. Crim. App. 1915).

And it was frequently held that it was not error for the trial court to refuse to define Aproof beyond a

reasonable doubt@ even when a request was made. See Marquez v. State, 725 S.W.2d 217, 241 (Tex.

Crim. App. 1987).

                                            The Geesa Decision

                  On November 6, 1991, however, the Court of Criminal Appeals in Geesa adopted a

definition of proof beyond a reasonable doubt6 and required that it be given Ain all criminal cases, even in the



        6
          The Geesa definition of reasonable doubt required to be given in all jury charges and
instructions provided:

                 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 his 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.

                 It is not required that the prosecution prove guilt beyond all doubt; it is
            required that the prosecution=s proof excludes all Areasonable doubt@ concerning
            the defendant=s guilt.

                 A Areasonable doubt@ is a doubt based on reason and common sense after a
            careful and impartial consideration of all the evidence in the case. It is the kind of
            doubt that would make a reasonable person hesitate to act in the most important

                                                       8
absence of an objection or request by the State or the defendant, whether the evidence be circumstantial or

direct.@ Geesa, 820 S.W.2d at 162. In Reyes v. State, 938 S.W.2d 718, 720-21 (Tex. Crim. App.

1996), the Court held that the above described holding in Geesa created an Aabsolute systemic

requirement@ that cannot be waived or forfeited or be subject to a harm analysis in a case where the Geesa

definition was totally omitted.7


                                         The Paulson Decision

                  In Paulson, the defendant was charged with misdemeanor theft of a wheeled barbeque pit.

The trial court instructed the jury that the proof of guilt was the State=s burden Abeyond a reasonable

doubt@ but totally omitted the Geesa definition. There was no objection. On appeal, the Fourteenth Court



            of his own affairs.

                 Proof beyond a reasonable doubt, therefore, must be proof of such a
            convincing character that you would be willing to rely and act upon it without
            hesitation in the most important of your own affairs.

                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
            him and say by your verdict Anot guilty.@


Geesa, 820 S.W.2d at 162.
        7
          However, in later cases, where only a partial but substantially correct Geesa charge defining
reasonable doubt was given without objection or where there was an unintended omission of a phrase
in the Geesa definition, a harm analysis was held permissible under article 36.19 of the Code of
Criminal Procedure and Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). See State v.
Toney, 979 S.W.2d 642, 644-45 (Tex. Crim. App. 1998) (only first three paragraphs of the Geesa
definition submitted); Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).


                                                    9
of Appeals on the basis of Geesa and Reyes dutifully but reluctantly found automatic reversible error.@

Paulson v. State, 991 S.W.2d 907, 917 (Tex. App.CHouston [14th Dist.] 1999), rev=d, 28 S.W.3d 870

(Tex. Crim. App. 2000).8

                Petition for discretionary review was granted in Paulson, and the Court of Criminal

Appeals overruled Ruiz in its entirety and overruled Geesa insofar as that decision required trial courts to

instruct juries on the mandated definition of Areasonable doubt.@ Paulson, 28 S.W.3d at 573.

                The Paulson court wrote:

             Our decision in Geesa requiring trial courts to instruct juries on the definition of
        reasonable doubt was poorly reasoned.

                                                   ***

            If a conscientious juror reads the Geesa charge and followed it literally he or she will
        never convict anyone.

                                                   ***

             It is ill-advised for us to require trial courts to provide the jury with a redundant,
        confusing, and logically-flawed definition when the Constitution does not require it, no
        Texas statute mandates it, and over a hundred years of pre-Geesa precedent discourages
        it.


Id. at 572-73. The Paulson opinion further added:


        8
           The Court of Appeals, speaking through Justice J. Harvey Hudson, reviewed at length the
history of the use of the term Areasonable doubt@ in jury instructions and the controversy over defining
the term.




                                                    10
              We find that the better practice is to give no definition of reasonable doubt at all to the
        jury. On the other hand, if both the State and the defense were to agree to give the Geesa
        instruction to the jury, it would not constitute reversible error for the trial court to acquiesce
        to their agreement.


Id. at 573.

                 Paulson returned Texas law to its pre-Geesa conditionC Ait is not error to refuse to define

reasonable doubt.@ 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and

Procedure ' 36.34 (2d ed. Supp. 2002).

                 The Abetter practice@ language is a word to the wise. Like the pre-Geesa law, it

discourages any definition of Areasonable doubt@ being given but encourages the issue be submitted to the

jury in the language of the statute. The Abetter practice@ language leaves the impression of a Aless than better

practice,@ including a definition of Areasonable doubt@ that would pass muster. The Paulson court was

obviously indicating it was not going to the opposite extreme of the Geesa and Reyes cases.

                 This indication is reinforced by the second sentence in the quotation above although the

wording of the sentence is somewhat confusing. It seems to say that reversible error will not result if the

discredited Geesa definition is submitted after both parties agree and the trial court approves. The lack of

reversible error may well turn on the appealing party=s agreement to submit the Geesa definition constituting

a waiver of any complaint on appeal. It is not likely that the Geesa definition will be given too frequently in

view of its nature and the requirements imposed. Prosecutors will not be inclined to agree to give a




                                                       11
definition that is redundant, confusing, logically flawed, and which if read literally would cause conscientious

jurors to acquit. Trial courts will be reluctant to put a seal of approval on such agreements.


                                              Phillips v. State

                 Before applying Paulson to the instant case, we observe its application in a recent case with

some similar features to our case. See Phillips v. State, 72 S.W.3d 719 (Tex. App.CWaco 2002, no

pet.). In Phillips, the trial court gave only a portion of the Geesa definition:


                 It is not required that the prosecution prove guilt beyond all doubt. It is required
        that the prosecution=s proof exclude all reasonable doubt concerning the defendant=s guilt.9


Id. at 721. The defendant objected only to the first sentence. Id. The Phillips opinion does not state, but

we shall assume for our discussion, that reasonable doubt was also submitted to the jury in the language of

the statutes. Likewise, the opinion does not state the date of the trial so we are unable to assay any

retroactive issue. When Paulson overruled Geesa, it did not address the retroactivity of its decision10 as

Geesa did in 820 S.W.2d at 165.

                 Under any circumstances, the Waco Court of Appeals applied Paulson. The court found

that A[b]ecause the Court of Criminal Appeals was clear on the point B give it all if the parties agree or give


        9
         The Phillips charge is the same as the instant case except the word Apossible@ is missing
between Aall@ and Adoubt@ in the first sentence in the Phillips charge.
        10
          The Paulson decision applied retroactively to Paulson=s trial since otherwise there would
have been no case or controversy permitting the Paulson decision to be made by the Court of
Criminal Appeals. 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and
Procedure ' 36.14 (2d ed. Supp. 2002).

                                                      12
none of it B we hold that it was error to give part of the Geesa instruction in the absence of an agreement.@

The Phillips court determined, however, that the error was harmless. Id.

                The instant cause was tried after the Paulson decision. The retroactivity issue is not

involved. Cases such as Bordman v. State, 56 S.W.3d 63 (Tex. App.CHouston [14th Dist.] 2001, pet.

ref=d), and Colbert v. State, 56 S.W.3d 857 (Tex. App.CCorpus Christi 2001, pet. granted), hold that

Paulson is to be applied to cases pending on appeal at the time of that decision. See also State v. Arroya,

32 S.W.3d 868 (Tex. Crim. App. 2000). These cases are little or no assistance to our discussion. Cf. Dix,

' 36.34.




                                                             13
                                     Paulson and the Instant Case

                In the instant case, the trial court, as earlier noted, charged on the presumption of innocence

and the required proof of each element of the offense beyond a reasonable doubt in the language of section

2.01 of the Penal Code and article 38.03 of the Code of Criminal Procedure. The trial court then added:

AIt is not required that the prosecution prove guilt beyond all possible doubt; it is required that the

prosecution=s proof excludes all >reasonable doubt= concerning the defendant=s guilt.@ This charge

was part and parcel, the third paragraph, of the discredited Geesa definition of reasonable doubt but not

one of the three formulations contained therein.11




        11
           The three formulations were the Abased on reason and common sense@ language, the
language of Ahesitate to act in the most important of his own affairs,@ and the language of Awilling to
rely and act upon without hesitation in the most important of your own affairs.@ The latter two
formulations may appear similar but are contrasting. The Awilling to act without hesitation@ definition
of reasonable doubt suggests action, while the Ahesitate to act@ suggests inaction. See Craig Hemmens
et al., Doubt Over Reasonable Doubt In Texas, 59 Tex. Bar. Journal 130, 139 (Feb. 1996).




                                                     14
                On appeal, appellant relies on Paulson as he did in the trial court and contends that none of

the Geesa definition should have been given. The State does not dispute the Geesa connection but urges

that the instruction itself was not a definition of reasonable doubt. The first sentence of the complained-of

instruction has been commonly used in voir dire examinations of jury panels, even in pre-Geesa times. It

does, however, state what reasonable doubt is not, and in this sense, is definitional. The second sentence is

redundant in cases where the trial court has followed the Abetter practice@ and has submitted the issue of

reasonable doubt in the language of the statutes without a definition.

                We do not fully agree with the Waco Court of Appeals in Phillips that any extraction from

the Geesa definition is erroneous in the absence of an agreement, or it must be given that Paulson has

mandated that if the Geesa definition is to be given by agreement that all of the definition had to be in

entirety. Such an interpretation would forestall any acceptable version of a reasonable doubt instruction

from being submitted, in the absence of an agreement, if the instruction, or any part thereof has a Geesa

connection. We do not give Paulson such a strict construction. Nevertheless, attempts to define

reasonable doubt do not usually make it clearer in the minds of the jurors, often they tend to impermissively

increase or lessen the burden of proof or utilize additional terms which themselves require definition. See

Paulson, 991 S.W.2d at 912. It has been said that Aany use of an instruction defining reasonable doubt

presents a situation equivalent to playing with fire.@ Id. (quoting United States v. Langer, 962 F.2d 592,

600 (7th Cir. 1992)).

                Although the complained-of instruction in the instant case does not appear to be too

intrusive upon the Abetter practice,@ we conclude that it should not have been given over objection.


                                                     15
                                             Harmless Error

                Error in a jury charge, if timely objected to in the trial court, requires reversal if the error

resulted in some harm, i.e., if the error was calculated to injure the defendant=s rights. See Tex. Code Crim.

Proc. Ann. art. 36.19 (West 1981); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994);

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh=g).

                The actual degree of harm Amust be assayed in light of the entire jury charge, the state of the

evidence, including the contested issues and the weight of probative evidence, the argument of counsel and

any other relevant information revealed by the record of the trial as a whole.@ Saunders v. State, 817

S.W.2d 688, 690 (Tex. Crim. App. 1991) (quoting Almanza, 686 S.W.2d at 171). Appellant has the

burden to show that he suffered some actual harm from the charge error, and if he fails in this endeavor, the

error will not require reversal. Abdnor, 871 S.W.2d at 732.

                The evidence was overwhelming that appellant was intoxicated while operating a motor

vehicle. The only bright spot for appellant was the arresting officer=s acknowledgement that the videotape

taken some time later did not show appellant swaying at that time.

                During the voir dire examination of the jury panel, the trial court and each of the parties

explained that the State=s burden of proof was beyond a reasonable doubt without a specific definition of

the term. Appellant=s counsel further explained that the State=s burden was a higher burden than Aby a

preponderance of the evidence@ or Aby clear and convincing proof.@ Further, the jury panel agreed with




                                                     16
appellant=s counsel that there should not be a lower standard in criminal cases than beyond a reasonable

doubt, and to be fair, jurors had to be Avery sure@ the State had proved its case before conviction.

                In its jury charge, the trial court instructed the jury that the burden of proof was on the State

to prove guilt Abeyond a reasonable doubt.@ The trial court, of course, also gave the complained-of

instruction. That charge, however, was never mentioned in jury argument. After an examination of the

entire record, we conclude that the error in the jury charge was not calculated to injure appellant=s rights.

                The sole point of error is overruled. The judgment is affirmed.




                                                   __________________________________________

                                                   John F. Onion, Jr., Justice

Before Justices Kidd, Patterson and Onion*

Affirmed

Filed: July 26, 2002

Publish




                                                      17
*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment.
    See Tex. Gov=t Code Ann. ' 74.003(b) (West 1998).




                                                    18
