
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


M E M O R A N D U M   O P I N I O N

		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.

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.
		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.
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,"
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)
		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
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
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
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.  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.
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.
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).

