       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-19-00015-CR


                             Jedediah James Watson, Appellant

                                               v.

                                 The State of Texas, Appellee


             FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY
        NO. C-17-0492-SB, THE HONORABLE BRAD GOODWIN, JUDGE PRESIDING



                           MEMORANDUM OPINION


              A jury found appellant Jedediah James Watson guilty of driving while

intoxicated, third or more, and the trial court sentenced him to ten years’ imprisonment. In two

points of error, Watson contends that the trial court improperly commented on the weight of the

evidence when it instructed the jury on reasonable doubt and on drawing inferences from the

evidence. We will affirm the trial court’s judgment of conviction.


                                  STANDARD OF REVIEW

              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. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015) (citing Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)); DeLeon v. State, No. 03-18-

00268-CR, 2018 WL 6837742, at *1 (Tex. App.—Austin Dec. 28, 2018, pet. ref’d). Here,

Watson did not object to the jury instructions, so any error “will not result in reversal of the
conviction without a showing of egregious harm.” Price, 457 S.W.3d at 440. “In examining the

record for egregious harm, we consider the entire jury charge, the state of the evidence, the

closing arguments of the parties, and any other relevant information in the record.” Arteaga v.

State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017). “Egregious harm is harm that deprives a

defendant of a fair and impartial trial.” Price, 457 S.W.3d at 440 (internal quotation marks

omitted). Stated differently, “[j]ury charge error is egregiously harmful if it affects the very

basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.”

Arteaga, 521 S.W.3d at 338.


                                           DISCUSSION

Instruction on Reasonable Doubt

               In his first point of error, Watson contends that the trial court erred in providing

the following instruction to the jury:


       The state must prove, beyond a reasonable doubt, the accusation of enhanced
       Driving While Intoxicated. 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. Therefore, 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 the defendant and
       say by your verdict “Not Guilty.”


(Emphasis added.) Watson argues that the emphasized portion “was a comment on the weight of

the evidence in violation of C.C.P. Art. 36.14.” See Tex. Code Crim. Proc. art. 36.14 (providing

that the trial judge shall “deliver to the jury . . . a written charge distinctly setting forth the law

applicable to the case; not expressing any opinion as to the weight of the evidence, not summing

up the testimony, discussing the facts or using any argument in his charge calculated to arouse

the sympathy or excite the passions of the jury”); see also Rodriguez v. State, 96 S.W.3d 398,

                                                  2
405 (Tex. App.—Austin 2002, pet. ref’d) (“[A]ttempts 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.”).

               For the purposes of our analysis, we will assume, without deciding, that the

trial court erred in including the quoted language in the jury instruction. Nevertheless, we will

reverse the trial court’s judgment only if we conclude that the court’s error caused Watson

egregious harm. See Price, 457 S.W.3d at 440.

               The complained of language was embedded in a paragraph that correctly

explained that the State bore the burden of proving the offense beyond a reasonable doubt. The

instruction also required the jury to acquit Watson if it had a reasonable doubt as to his guilt.

Moreover, this Court has held that the complained of language, even if it should not have been

included, “does not appear to be too intrusive upon the ‘better practice’” of not defining

reasonable doubt. See Rodriguez, 96 S.W.3d at 405. In Rodriguez, where identical language

was submitted to the jury, we concluded that the defendant did not suffer even “some harm.”

Id. at 406.

               Here, given the overall instruction concerning the burden of proof, any harm

caused by the complained of language would have been slight and far from egregious. In

addition, the State presented considerable evidence of Watson’s guilt, including the results of

a blood draw indicating that Watson’s blood alcohol concentration was 0.165 grams per

100 milliliters of blood. See Tex. Penal Code § 49.01(1)(B), (2)(B) (defining “intoxicated” as

having 0.08 or more grams of alcohol per 100 milliliters of blood). Finally, we are not aware of

anything in the record suggesting that the State exploited the complained of language or created

any confusion about its burden of proof. Indeed, in his closing argument, defense counsel

                                                 3
explained to the jury that there is “[n]o definition” of “reasonable doubt” and that the jury “get[s]

to decide what a reasonable doubt is,” and the State did not contradict that explanation.

                  In light of the entire record before us, including the jury charge, the evidence, and

the arguments of counsel, we cannot conclude that Watson suffered egregious harm as a result of

the complained of language concerning reasonable doubt. Accordingly, we overrule his first

point of error.


Instruction on Drawing Reasonable Inferences from the Evidence

                  In his second point of error, Watson contends that the trial court erred in

providing the following instruction to the jury:


        While you should consider only the evidence, you are permitted to draw
        reasonable inferences from the testimony and exhibits that are justified in the light
        of common experience. In other words, you may make deductions and reach
        conclusions that reason and common sense lead you to draw from the facts that
        have been established by the evidence.


As with the instruction on reasonable doubt, Watson argues that this instruction commented on

the weight of the evidence in violation of article 36.14.

                  Once again, we will assume, without deciding, that the trial court erred in

including the quoted language, and we will consider whether Watson suffered egregious harm as

a result. The State argues that the quoted language did not harm Watson because the trial court

“submitted identical language from the Texas Criminal Pattern Jury Charges, as developed and

accepted by the State Bar of Texas.” Watson does not explain how he suffered harm.

                  Even assuming it was error to include the complained of language, the instruction

is a correct statement of law. See Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018)



                                                    4
(noting that it is “the jury’s role to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts”) (internal quotation marks

omitted); Boston v. State, 373 S.W.3d 832, 836 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321

(Tex. Crim. App. 2013) (“The jury, as the exclusive judge of the facts, is entitled to weigh and

resolve conflicts in the evidence and draw reasonable inferences therefrom.”). In addition, we

are not aware of anything in the record that would exacerbate any harm the instruction may have

caused, and, as discussed above, there was considerable evidence of Watson’s guilt.

               In light of the entire record before us, we cannot conclude that Watson suffered

egregious harm as a result of the complained of language concerning drawing inferences from

evidence. Accordingly, we overrule his second point of error.


                                         CONCLUSION

               We affirm the trial court’s judgment of conviction.



                                              __________________________________________
                                              Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed

Filed: July 9, 2019

Do Not Publish




                                                 5
