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                                 MEMORANDUM OPINION

                                         No. 04-07-00592-CR

                                       Tabitha Nicole WOOD,
                                              Appellant

                                                  v.

                                        The STATE of Texas,
                                              Appellee

                    From the 63rd Judicial District Court, Val Verde County, Texas
                                     Trial Court No. 10040-CR
                          Honorable Thomas Franklin Lee, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: February 11, 2009

AFFIRMED

           Tabitha Nicole Wood was convicted by a jury of aggravated assault with a deadly weapon,

and sentenced to eight-and-a-half years imprisonment. Wood appeals the judgment, asserting error

in the jury charge during the guilt/innocence phase of the trial. We affirm the judgment of the trial

court.
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         Wood argues it was error for the trial court to instruct the jury that “[y]our sole duty at this

time is to determine the guilt or innocence of the defendant under the indictment in this cause and

restrict your deliberations to the issue of guilt or innocence of the defendant and nothing else.”

Wood claims the instruction erroneously shifted the State’s burden by suggesting the jury was to

determine innocence, instead of simply “guilty or not guilty,” in violation of the Texas Code of

Criminal Procedure. See TEX . CODE CRIM . PROC. ANN . art. 36.14 (Vernon 2007; art. 36.19 (Vernon

2006).

         The quoted language is identical to the language this court reviewed in Flores v. State,

920 S.W.2d 347 (Tex. App.—San Antonio 1996, pet. dism’d). As noted in Flores, the language

of the charge is a commonly used instruction taken from the State Bar of Texas Criminal Pattern

Jury Charges, adhering to the requirements of article 37.07 of the Code of Criminal Procedure.

See Flores, 920 S.W.2d at 357 (citing TEX . CODE CRIM . PROC. ANN . art. 37.07, Sec. 2(a)

(Vernon Supp. 2007) (“In all criminal cases . . . which are tried before a jury on a plea of not guilty,

the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the

defendant. . . .”)). “The instruction is clearly designed to focus the jury’s attention on the first phase

of the bifurcated criminal trial—the ‘guilt/innocence’ phase—and to direct the jury away from

consideration of other issues, e.g. punishment.” Id.

         Instructing the jury to consider the guilt or innocence of the defendant does not change the

burden of proof of the State. See id. As noted throughout the charge, Wood was presumed innocent

unless the State proved otherwise. The jury was repeatedly instructed it should acquit Wood of the

offense charged unless it found the evidence proved guilt beyond a reasonable doubt. Finding no

error in the court’s instruction, Wood’s issue is overruled.



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       Accordingly, we affirm the judgment of the trial court.



                                                     Steven C. Hilbig, Justice

Do not publish




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