AFFIRM; Opinion Filed March 21, 2014.




                                         S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-13-00333-CR

                                ROBERT GLYNN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 2
                                   Collin County, Texas
                           Trial Court Cause No. 002-88186-2011

                             MEMORANDUM OPINION
                           Before Justices O'Neill, Myers, and Brown
                                   Opinion by Justice Brown
       Appellant Robert Glynn was charged by information with misdemeanor driving while

intoxicated. A jury found appellant guilty, and the trial court assessed his punishment at 180

days’ confinement, probated for two years, and a $1,000 fine. In a single issue, appellant

complains of error in a reasonable doubt instruction given in the jury charge. We affirm the trial

court’s judgment.

       The court’s charge used the term “reasonable doubt” in the following instances:

              Now, if you find and believe from the evidence beyond a reasonable doubt
       that on or about October 12, 2011, in Collin County, Texas, ROBERT
       GREGORY GLYNN did then and there operate a motor vehicle in a public place
       while the said ROBERT GREGORY GLYNN was intoxicated by not having
       the normal use of his mental or physical faculties by reason of the introduction of
       alcohol into the body, then you will find the defendant guilty as charged.

              Unless you so find beyond a reasonable doubt, or if you have a reasonable
       doubt thereof, you will find the defendant not guilty.
               ....

               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 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 they fail to do so, you must acquit the defendant.

       At the charge conference, defense counsel objected to the following sentence in the

charge: “Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt

thereof, you will find the defendant not guilty.” Counsel asked for the phrase “or if you have a

reasonable doubt thereof” to be deleted. He explained, “The basis for that is it’s giving a

definition that you must have a doubt based on reason rather than letting them make their own

determination.” Counsel wanted the charge to instead say, “Unless you so find beyond a

reasonable doubt, you will find the defendant not guilty.”

       In his sole point of error, appellant contends the trial court erred in giving the above

instruction because it left out the term “beyond” in describing the State’s burden of proof.

Appellant asserts that in doing so the court lowered the State’s burden of proof and that his due

process rights were violated. He further contends the complained-of sentence was an improper

“definitional phrase” regarding reasonable doubt.

       Appellate review of alleged error in a jury charge is a two-step process. Kirsch v. State,

357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we determine whether the jury instruction is

erroneous. Id. Then, if error occurred, we must analyze that error for harm. Id.

       For about nine years, the court of criminal appeals required jury charges to contain a

specific six-paragraph instruction on reasonable doubt. See Geesa v. State, 820 S.W.2d 154, 162

(Tex. Crim. App. 1991), overruled by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000).

                                               –2–
The required instruction included three definitions of “reasonable doubt.” Paulson, 28 S.W.3d at

572. The court in Paulson overruled that portion of Geesa which required trial courts to instruct

juries on the definition of “beyond a reasonable doubt.” Id. at 573. The court found that the

better practice is to give no definition of reasonable doubt to the jury at all. Id. What constitutes

proof beyond a reasonable doubt is not subject to definition by the trial court because it is up to

the jurors to determine whether their doubts, if any, about the defendant’s guilt are reasonable.

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

       Paulson specifically prohibited defining “reasonable doubt” as set out in paragraphs four

and five of the Geesa instruction. Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004);

O’Canas, 140 S.W.3d at 701. This Court has held that Paulson did not prohibit trial courts from

giving any of the six paragraphs constituting the Geesa instruction. O’Canas, 140 S.W.3d at

701. We found nothing in Paulson to suggest that giving a correct statement of the law that

happened to be contained within the Geesa instruction would necessarily be error. Id.

       We disagree with appellant’s characterization of the alleged error in this case. He asserts

the trial court erroneously left out the term “beyond” when describing the burden of proof. As

shown above, the court’s charge used the term “beyond a reasonable doubt” five times. The

complained-of instruction did not eliminate the requirement that the jury find appellant guilty

beyond a reasonable doubt. It merely restated that proposition in a different way. It required

jurors to find appellant not guilty if they had reasonable doubt about the elements of the offense.

The State’s burden of proof was clear, and the instruction at issue did not lower that burden.

       Further, the complained-of language does not define reasonable doubt. It expresses a

proposition similar to what was previously paragraph six of the Geesa instruction: “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.’” See

                                                –3–
Paulson, 28 S.W.3d at 573 (appendix). This part of Geesa has not been prohibited. See id.

Instructing jurors that if they have a reasonable doubt about the defendant’s guilt, they should

find the defendant not guilty is simply stating a legally correct proposition. See O’Canas, 140

S.W.3d at 701. Such instruction does not encroach upon the jury’s task of assigning meaning to

the phrase “beyond a reasonable doubt.” We find no error in the court’s instructions regarding

reasonable doubt in this case. We resolve appellant’s sole issue against him.

       We affirm the trial court’s judgment.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

130333F.U05




                                               –4–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ROBERT GLYNN, Appellant                            On Appeal from the County Court at Law
                                                   No. 2, Collin County, Texas
No. 05-13-00333-CR        V.                       Trial Court Cause No. 002-88186-2011.
                                                   Opinion delivered by Justice Brown.
THE STATE OF TEXAS, Appellee                       Justices O'Neill and Myers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of March, 2014.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE




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