Opinion issued November 22, 2016




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-01060-CR
                            ———————————
                 MARSHALL DARNELL JOSHUA, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                   On Appeal from the 122nd District Court
                          Galveston County, Texas
                       Trial Court Case No. 15CR0262


                                   OPINION

      Appellant Marshall Joshua appeals from a conviction for possession of

heroin with intent to deliver. In a single issue, he complains that the jury verdict

form should have first provided the Jury the option of finding appellant “Not

Guilty” before the option of “Guilty” or, alternatively, that the verdict form should
have admonished the jury that the placement of “Guilty” before “Not Guilty” was

not a comment on the court’s opinion of appellant’s guilt. We affirm the trial

court’s judgment.

                                 BACKGROUND

A.    Charge Objection

      During the charge conference, the following exchange took place with

appellant’s attorney, who argued that the verdict form was inconsistent with the

presumption of innocence that the Jury was required to apply:

             [DEFENSE COUNSEL]: -- as you know, this has always been
      my argument. On the verdict page, the State always chooses to put:
      We, the jury, find the defendant guilty of the offense of possession of
      a controlled substance with intent to deliver. My argument to the
      Court is it should read: We, the jury, find the defendant not guilty,
      being the first choice. And that is mirrored in the Harris County
      District Court’s jury charges because a person is presumed innocent
      until they’re found guilty.
             THE COURT: Ah. But then there’s the other argument, that the
      State has the burden of proving their case beyond a reasonable doubt,
      which is why they get to present evidence first. That’s why they get to
      argue to the jury first and that’s why it’s in – it’s in the verdict forms
      first.
            [DEFENSE COUNSEL]: But both after they put on their
      evidence and after they get to argue first and after they have allegedly
      met their burden, the defendant still stands not guilty -- or presumed
      innocent. So, I’ve always asked that the not guilty -- because there’s a
      presumption --
            THE COURT: I know -- I know you always do and I know that
      you’re not the only one. But, ultimately, it’s my charge. I’ve been
      doing it the same way for 23 years and that’s how I’m doing it. So,
      your objection is overruled.


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B.    The Court’s Charge

      The charge instructed the jury that appellant had pleaded “not guilty” and

contained the definitions relevant to the crimes with which he was charged, the

lesser included offense, the law of the parties, and admonished that the failure of

appellant to testify could not be considered evidence of guilt. It also contained the

following instructions as to the standards to be applied by the jury:

             Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 1st of FEBRUARY A.D., 2015 in Galveston
      County, Texas [appellant], either acting alone or as a party, as herein
      defined, with Jerome Harris, did then and there knowingly possess,
      with intent to deliver, a controlled substance, namely, Heroin, in an
      amount of four grams or more but less than two hundred grams, then
      you will find [appellant] guilty of Possession of a Controlled
      Substance with Intent to Deliver, as charged in the indictment.
            Unless you so find from the evidence beyond a reasonable
      doubt, or if you have a reasonable doubt thereof, you will acquit the
      Defendant of Possession of a Controlled Substance with Intent to
      Deliver and go on to consider whether he is guilty of the lesser
      offense of Possession of a Controlled Substance, namely, Heroin, in
      an amount of four grams or more but less than two hundred grams.
             ....
             Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 1st day of FEBRUARY, 2015, in Galveston
      County, Texas [appellant], either acting alone or as a party, as herein
      defined with Jerome Harris, did then and there knowingly possess a
      controlled substance, namely, Heroin, in an amount of four grams or
      more but less than two hundred grams, then you will find the
      Defendant guilty of the lesser offense of Possession of a Controlled
      Substance, namely, Heroin, in an amount of four grams or more but
      less than two hundred grams.
            If you believe from the evidence beyond a reasonable doubt that
      the Defendant is either guilty of Possession of a Controlled Substance

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with Intent to Deliver or Possession of a Controlled Substance, but
you have a reasonable doubt as to which the Defendant is guilty of,
then you should resolve that doubt in Defendant’s favor and find him
guilty of the lesser offense of Possession of a Controlled Substance.
       If you have a reasonable doubt as to whether [appellant] is
guilty of any offense, that is Possession of a Controlled Substance
with Intent to Deliver or Possession of a Controlled Substance, then
you will acquit [appellant] and say by your verdict “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 fact that a person has been arrested,
confined, indicted for, or otherwise charged with, the offense gives
rise to no inference of guilt at his trial. The law does not require
[appellant] 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
[appellant’s] guilt after careful and impartial consideration of all the
evidence in the case.
      The prosecution has the burden of proving [appellant guilty]
and 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 [appellant].
        In the event you have a reasonable doubt as to [appellant’s]
guilt after considering all the evidence before you and these
instructions, you will acquit him and say by your verdict “Not
Guilty.” . . . . The burden of proof in all criminal cases rests upon the
State throughout the trial and never shifts to [appellant].
      ....
       Suitable forms for your verdict are hereto attached; your verdict
must by in writing and signed by your Foreperson. Your sole duty at
this time is to determine the guilt or innocence of [appellant] under the
indictment in this case; and restrict your deliberations solely to the
issue of guilt or innocence of [appellant].




                                   4
                                 ISSUE ON APPEAL

      Appellant raises the following issue for our review:

      “The 122nd Judicial District Court should have provided the jury with
      the verdict page having the “not guilty” option appearing first, and the
      “guilty” option appearing second. Alternatively, the Court should
      have provided contiguous instruction on the verdict page that the
      placement of the options “not guilty” and “guilty”' on the verdict page
      were not comments by the Court on its opinion on the matter.”

                             STANDARD OF REVIEW

      The verdict form is part of the court’s charge. Jennings v. State, 302 S.W.3d

306, 307 (Tex. Crim. App. 2010).         We review alleged jury charge error in two

steps: first, we determine whether error exists; if so, we then evaluate whether

sufficient harm resulted from the error to require reversal. Price v. State, 457

S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743–44

(Tex. Crim. App. 2005). The degree of harm required for reversal depends on

whether the jury charge error was preserved in the trial court. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (setting forth analysis

for determining whether jury charge error requires reversal). If the jury charge

error has been properly preserved by an objection or request for instruction,

reversal is required if the appellant has suffered “some harm” from the error. Vega

v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Barrios v. State, 283

S.W.3d 348, 350 (Tex. Crim. App. 2009) (“If there was error and appellant

objected to the error at trial, reversal is required if the error ‘is calculated to injure

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the rights of the defendant,’ which we have defined to mean that there is ‘some

harm.’”).

      Thus, in considering appellant’s single point of error, we first must

determine if there was error in the charge. Only if we find error do we address

whether appellant was harmed sufficiently to require reversal. Druery v. State, 225

S.W.3d 491, 504 (Tex. Crim. App. 2007).


                                   ANALYSIS
      The crux of appellant’s argument is that, by placing the “guilty” option on

the verdict form above the “not guilty” option, the court was essentially

commenting on the weight of the evidence and conveying to the jury that the court

thought appellant was guilty. And appellant contends that, “in some measure, the

placement of the option of ‘Guilty’ first on the verdict page, absent contiguous

written instruction to the jury that the relative placements of ‘guilty’ and ‘not

guilty’ on the verdict page were not to be taken as comment by the Court as to its

opinion on the matter, robbed Appellant of the complete presumption of innocence

and, thereby deprived him of Due Process.” Appellant analogizes this situation to

the practice of placing candidate names’ randomly on ballots to avoid the

appearance of unfairness. And he contends that the “written placement of the

options on the verdict page carries presumed imprimatur of judicial approval.”




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      Appellant acknowledges that, at the beginning of trial, the court admonished

the jury that “[n]o ruling – no statement, ruling or remark that I make during the

entire time this case is on trial is intended in any way to indicate my opinion as to

the facts.” Nonetheless, appellant asserts, “this early verbal caution by the trial

court, doesn’t speak to the later charge to the jury, and is insufficiently specific to

adequately counter the impression that the written charge would leave in the jury

members’ minds – that the trial court had some biased leanings toward the first

choice of “guilty.”

      The State counters that the only requirement for a written verdict form is that

“it must set out every ‘guilty’ and ‘not guilty’ option that is available to the jury.”

Jennings v. State, 302 S.W.3d at 310. And it notes that this Court, and other

appellate courts, have rejected appellant’s identical argument, concluding that that

the placement of “Guilty” before “Not Guilty” in an otherwise proper verdict form

does not indicate a trial court is biased or influence a jury to vote a particular way.

See Hallman v. State, No. 01-85-0720-CR, 1986 WL 10188, at *1 (Tex. App.—

Houston [1st Dist.] Aug. 28, 1986, no pet.) (not designated for publication) (“The

trial court properly charged the jury on the presumption of innocence and the

State's burden of proof. The order in which the verdict options appeared on the

verdict form in no way changed or contradicted the duty of the jurors to act in

accordance with the instructions given them.”); see also Cook v. State, No. 07–11–


                                          7
00390–CR, 2013 WL 5782915, at *7 (Tex. App.—Amarillo Oct. 23, 2013, pet.

ref’d) (mem. op., not designated for publication) (holding trial court’s placing

“guilty” verdict form before “not guilty” verdict form did not influence jury to

ignore the trial court’s detailed written instructions in court’s charge); Vertiz v.

State, No. 12–11–00136–CR, 2012 WL 690398, at * 4 (Tex. App.—Tyler Feb. 29,

2012, no pet.) (mem. op., not designated for publication) (holding that trial court’s

placing “guilty” verdict form before “not guilty” verdict form did not influence the

jury to find appellant guilty when it would not have otherwise done so); cf. Estelle

v. State, No. 05–11–00353–CR, 2013 WL 222268, at *4 (Tex. App.—Dallas Jan.

16, 2013, no pet.) (mem. op., not designated for publication) (rejecting argument

that trial court’s placing verdict form with harshest possible punishment first was

comment on the evidence and statement as to which punishment court preferred).

      Appellant has not demonstrated error in the trial court’s verdict form. We

overrule his sole issue.

                                    CONCLUSION

      We affirm the trial court’s judgment.



                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

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