      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00126-CR



                                Michael Cornell Jones, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 61548, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Michael Cornell Jones appeals his conviction for evading arrest with a motor vehicle,

a state jail felony. See Tex. Penal Code Ann. § 38.04(a), (b)(1) (West 2003). A jury found Jones

guilty and assessed punishment of two years’ imprisonment. In a single issue, Jones asserts that the

court’s charge included an impermissible instruction regarding the level of doubt required to convict

him. We will affirm the judgment of conviction.


                                         BACKGROUND

               Neither the legal nor factual sufficiency of the evidence is challenged. The testimony

at trial established that on the night of May 7, 2007, Killeen Police Officer Cassandra Fulton noticed

a vehicle with a defective headlamp being driven by a man later identified as Jones. Officer Fulton

began following Jones, observed him run through a stop sign, and initiated a traffic stop by activating
her overhead lights and air horn. Jones did not yield, but instead drove away at an increased speed.

After a few seconds of pursuit, Jones crashed his vehicle into a fence and then ran away on foot.

Officer Fulton soon discovered Jones hiding under a bush and arrested him. In addition to Officer

Fulton’s testimony describing these events, the jury also viewed the footage taken from her patrol

car’s video camera.

               Before retiring to deliberate, the jury was instructed on the law applicable to the case.

The court’s charge included the following statement:


       It 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.1


               Jones timely objected to this portion of the charge, stating,


       For the record, Your Honor, we will object to that instruction being included in the
       charge. However, I will, in all candor, admit that the case law is certainly against us
       in the court of appeals. The court of criminal appeals has said that’s appropriate.
       However, for the record we are objecting to its inclusion.


               The court overruled Jones’s objection, and the jury found Jones guilty of the offense

of evading arrest. This appeal followed.




       1
           This sentence has become known as “paragraph [3]” of the Geesa instruction, referring to
the case in which the court of criminal appeals held that trial courts must define reasonable doubt
in their jury charges and mandated a particular six-paragraph jury instruction. See Geesa v. State,
820 S.W.2d 154, 162 (Tex. Crim. App. 1991). As we will discuss further, the requirement to define
reasonable doubt for the jury was subsequently overruled by the court in Paulson v. State, 28 S.W.3d
570 (Tex. Crim. App. 2000).

                                                  2
                                   STANDARD OF REVIEW

               In determining whether there was reversible error in the jury charge, we must first

determine if there actually exists error in the jury charge. Abdnor v. State, 871 S.W.2d 726, 732

(Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)

(op. on reh’g). In deciding whether there is charge error, we must review the charge as a whole

rather than focusing on isolated parts of the charge. Taylor v. State, 148 S.W.3d 592, 594

(Tex. App.—Fort Worth 2004, pet. ref’d). Second, if charge error is found to exist, we determine

if sufficient harm resulted from that error to require a reversal. The degree of harm resulting from

charge error “must be assayed in light of the entire jury charge, the state of the evidence, including

the contested issues and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record.” Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim.

App. 2000) (op. on reh’g).


                                          DISCUSSION

               Jones complains on appeal that the objected-to portion of the jury charge constitutes

an impermissible definition of “reasonable doubt” and that, according to this Court’s decision in

Rodriguez v. State, 96 S.W.3d 398 (Tex. App.—Austin 2002, pet. ref’d), it was reversible error to

include it in the court’s charge. Jones’s issue presents us with an opportunity to review a conflict

in the jurisprudence of the courts of appeals and to evaluate our holding in Rodriguez. Before

turning to Rodriguez and its bearing on the instant case, however, we will briefly address the context

in which Jones’s issue arises.



                                                  3
                 In Geesa v. State, the court of criminal appeals determined that a defendant was

entitled to “a full definitional instruction to the jury on reasonable doubt” and expressly adopted a

six-paragraph instruction to be “submitted to the jury in all criminal cases, even in the absence of

an objection or request by the State or the defendant.”2 820 S.W.2d 154, 162 (Tex. Crim.



       2
           The Geesa instruction states in its entirety:

       [1] 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.

       [2] 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.

       [3] It 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.

       [4] A “reasonable 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 of
       his own affairs.

       [5] 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.

       [6] 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 “Not guilty”.

Geesa, 820 S.W.2d at 162.

                                                    4
App. 1991). The chosen definition included, in its third paragraph, the instruction that is the subject

of this appeal, namely, “It 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.”3 Id. at 162. Prior to Geesa, “reasonable doubt” had never been defined in Texas, either

statutorily or in the charge to the jury. Id. at 161 n.10. In its subsequent interpretation of the Geesa

instruction, the court of criminal appeals determined that the requirement to include it in the jury

charge was “absolute” and “systemic,” and that “the failure to submit such an instruction is

automatic reversible error” not subject to harm analysis. See Reyes v. State, 938 S.W.2d 718, 721

(Tex. Crim. App. 1996).

               In Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000), the court reconsidered

the definitional requirement set forth in Geesa and Reyes, questioning the reasoning in Geesa and

determining that Reyes should be overruled in its entirety. Id. at 572-73. The court specifically

criticized paragraphs [4] and [5] of the Geesa definition, which attempted to define “reasonable

doubt” in terms of the measure of doubt that would make a reasonable person “hesitate,” and to

characterize “proof beyond a reasonable doubt” as proof so convincing that one would rely and act

upon it “without hesitation.” Id. at 572; Geesa, 820 S.W.2d at 162. As the Paulson court explained,

the redundant and ambiguous use of the concept of “hesitation” was problematic because

“[c]onsiderations utterly foreign to reasonable doubt might make a person hesitate to act,” and the

decision to brand someone as a criminal is one that would “make us hesitate if we have any human

feelings or sensitivity at all.” 28 S.W.3d at 572. Rather than try to redefine “reasonable doubt,”


       3
          Thus, although the paragraphs were not actually numbered in the Geesa opinion, this
language is commonly referred to as “paragraph [3]” of the Geesa instruction.

                                                   5
however, the court held that “the better practice is to give no definition of reasonable doubt at all to

the jury.” Id. at 573. The court further stated, “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.

                The first court of appeals to consider the post-Paulson use of the Geesa instruction

was the Waco court in Phillips v. State, 72 S.W.3d 719 (Tex. App.—Waco 2002, no pet.). In that

case, the definition given by the trial court included only paragraph [3] of the Geesa instruction,4 and

the Waco court determined that this was error because Paulson was clear on the point that, absent

an agreement between the parties, the trial court should give all of the Geesa instruction or give none

of it, but concluded that the error was harmless. Id. at 721.

                It was in light of the foregoing that this Court decided Rodriguez. Our holding in that

case—where, as here, the only Geesa instruction given was paragraph [3] and the defendant timely

objected to its inclusion—was that paragraph [3] is “definitional” in the sense that it states “what

reasonable doubt is not.” 96 S.W.3d at 405. Thus, while observing that “the complained-of

instruction . . . does not appear to be too intrusive upon the ‘better practice’” announced in Paulson,

we concluded that the instruction still “should not have been given over objection.” Id. Proceeding

to a harm analysis, we determined that the error was not calculated to injure the rights of the

appellant and overruled his point of error.5



        4
          The instruction given in Phillips deviated slightly from the Geesa language, stating that the
prosecution need not prove guilt “beyond all doubt,” rather than “beyond all possible doubt.”
Phillips v. State, 72 S.W.3d 719, 721 (Tex. App.—Waco 2002, no pet.).
        5
          We disagreed with the Waco court, however, that any extraction from the Geesa definition
is erroneous in the absence of an agreement between the defendant and the State. Rodriguez v. State,
96 S.W.3d 398, 405 (Tex. App.—Austin 2002, pet. ref’d).

                                                    6
               Our decision holding that the paragraph [3] language is definitional and therefore

constitutes charge error has been criticized by our sister courts that have addressed the issue. See

O’Canas v. State, 140 S.W.3d 695, 701 (Tex. App.—Dallas 2003, pet. ref’d) (noting that if

paragraph [3] defined “reasonable doubt,” court of criminal appeals would have so stated in

Paulson); Ochoa v. State, 119 S.W.3d 825, 829 (Tex. App.—San Antonio 2003, no pet.)

(recognizing split of authority but deciding language not definitional); Torres v. State, 116 S.W.3d

208, 212 (Tex. App.—El Paso 2003, no pet.) (challenged instruction does not constitute definition

of reasonable doubt); Fluellen v. State, 104 S.W.3d 152, 164 (Tex. App.—Texarkana 2003, no pet.)

(same); Minor v. State, 91 S.W.3d 824, 829 (Tex. App.—Fort Worth 2002, pet. ref’d) (same);

Brown v. State, 91 S.W.3d 353, 358 (Tex. App.—Eastland 2002, no pet.) (same); Carriere v. State,

84 S.W.3d 753, 759 (Tex. App. —Houston [1st Dist.] 2002, pet. ref’d) (paragraph [3] language is

not sort of instruction prohibited by Paulson); see also Holland v. State, 249 S.W.3d 705, 707

(Tex. App.—Beaumont 2008, no pet.) (giving Geesa instruction in absence of agreement between

State and defense would not constitute reversible error); Ruiz v. State, 228 S.W.3d 691, 692-93

(Tex. App.—Corpus Christi 2005, no pet.) (trial court does not abuse its discretion by including

“beyond all possible doubt” instruction); Jackson v. State, 105 S.W.3d 321, 325

(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding same and further noting that instruction

does not lessen State’s burden of proof, confuse jury, or negate statutory burden of proof language).

               The court of criminal appeals has since decided a case in which the jury charge

contained some of the language of the original Geesa instruction, including paragraph [3], but did

not include the objectionable language from paragraphs [4] and [5] that had been criticized by the

Paulson court. See Woods v. State, 152 S.W.3d 105 (Tex. Crim. App. 2004). In Woods, the


                                                 7
defendant did not object to the charge at trial, and on appeal, he challenged only the inclusion of the

paragraph [3] reasonable doubt instruction. Id. at 115. The court of criminal appeals stated that “the

trial court did not abuse its discretion by including paragraph [3] of the Geesa instruction” and

overruled Woods’s issue without further explanation. Id. A number of courts of appeals have thus

determined that Woods is dispositive of the issue that Jones now raises on appeal—including the

Waco court, which has declared that its decision in Phillips was “implicitly overruled” by Woods.

See Steadman v. State, Nos. 10-07-00105-CR & 10-07-00106-CR, 2008 Tex. App. LEXIS 5039, at

*14-15 & n.1 (Tex. App.—Waco July 2, 2008, no pet. h.); see also Ruiz, 228 S.W.3d at 693; Jimenez

v. State, No. 05-06-01374-CR, 2008 Tex. App. LEXIS 1874, at *6 (Tex. App.—Dallas 2008, no pet.)

(mem. op., not designated for publication); Williams v. State, No. 14-06-00633-CR, 2007 Tex. App.

LEXIS 7054, at *6 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (mem. op., not designated

for publication).

               By the same logic, Woods would also have overruled this Court’s decision in

Rodriguez, completely foreclosing Jones’s argument on appeal that the trial court erred by

disregarding Rodriguez. Even if Rodriguez has not been overruled by Woods, however, Jones’s

argument still fails because he has not shown that the alleged jury charge error was harmful.

               In order to support reversal of the conviction, any alleged error in the jury charge must

be calculated to injure the defendant’s rights. See Abdnor, 871 S.W.2d at 731-32; Almanza,

686 S.W.2d at 171. The 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. Here, Jones asserts that he suffered actual harm “when the trial court failed to

follow the philosophy of stare decisis and refuse to give any instructions or definitions of reasonable


                                                  8
doubt to the jury,” depriving him of a fair and impartial trial. As discussed above, it is far from clear

that the authorities binding this Court dictate that a trial court may never instruct a jury on reasonable

doubt—only that the “better practice” is not to do so. See Paulson, 28 S.W.3d at 573. Nor did

Rodriguez make the clear statement Jones attributes to it that the inclusion of paragraph [3] in the

jury charge is reversible error. By merely alleging that the trial court ignored precedent when it

disregarded Rodriguez, Jones has not shown that he suffered actual harm. As we acknowledged in

Rodriguez, the instruction Jones complains of “does not appear to be too intrusive upon the ‘better

practice,’” and in addition to making a timely objection, we required the appellant to further show

that he suffered actual harm, which he failed to do. Likewise, Jones has not carried his burden, and

we overrule his point of error.


                                           CONCLUSION

                Because the trial court did not commit reversible error in submitting its charge to the

jury, we affirm the judgment of conviction.



                                               ___________________________________________

                                               Diane M. Henson, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: August 6, 2008

Do Not Publish




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