Bruce Anthony Coleman v. The State of Texas--Appeal from Criminal District Court No. 5 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-05-00260-CR

Appeal from the

Criminal District Court No. 5

of Dallas County, Texas

(TC# F-0320509-IL)

This is an appeal from a jury conviction for the offense of violation of a protective order. The jury assessed punishment at ten years' imprisonment. We affirm.

Latoya Coleman and Appellant were married and had one child, a son. Appellant had a son from a previous marriage. Latoya Coleman testified that during her seven-and-one-half-year marriage to Appellant, he was abusive and controlling. On one occasion, she tried to obtain a driver's license. Appellant objected and told her he would, "get a shit load of arsenal" and "hunt [her] down." She obtained a protective order against Appellant and moved in with her sister, Jaywana Tadros, and Tadros's husband, Jason Tadros.

Latoya Coleman's relationship with Appellant continued to deteriorate to the point where she only communicated with Appellant about matters concerning their children. He accused her of infidelity and begged her to come back to him. On Christmas day of 2003, Latoya Coleman spoke to Appellant on the telephone and told him he could pick up the children at her mother's home. She spoke to Appellant at about 10 p.m. after the children had returned. Appellant stated that he loved her and that things were going to work out. A short time later she heard a knock at the front door. She heard a loud bang, and she heard her brother-in-law cry out in pain. Her five-year-old niece came running down the hallway, and she stated that her father had been shot.

When Latoya Coleman tried to call the police, there was no dial tone. She turned and saw Appellant pointing a gun at her. He was trying to pull the trigger, but the gun had jammed. As he tried to fix the weapon, she grabbed her cell phone and she got into a closet with her two sons; she leaned against the closet door. Appellant got his hand through the door and pointed the gun at her head. Again, the gun jammed. Appellant hit his wife in the face with the gun. She heard sirens, and Appellant fled.

Jason Tadros testified that he, his wife, and daughter were watching television in their bedroom when the doorbell rang. Jason Tadros went to answer the door and his daughter followed him. When he opened the door, there was stranger at the door who said something about the garbage at the back of the house. Appellant suddenly appeared at the side of the man at the door with a gun pointed at Jason Tadros. Tadros raised his hand just as Appellant fired and the bullet went through his hand, through his ear, and lodged in his throat. Tadros fell to the ground. As he lay on the floor, Jason Tadros heard the sound of the door being pushed open and two sets of feet stepped over him. Then he heard screaming and yelling coming from within the house.

Jaywana Tadros testified that she heard a gunshot several seconds after her husband left the bedroom to answer the doorbell. Then her daughter ran back into the bedroom screaming. Jaywana Tadros was trying to get her daughter under the bed when Appellant came into the room and pointed the gun at her. She thought that Appellant might have mistaken her for her sister, Latoya Coleman. He pulled the trigger, but the gun would not discharge. He tried to pull the trigger a second time, but the gun would still not fire. When Appellant left the room, Jaywana Tadros went to get help.

Lastly, there was testimony that search of the residence was conducted by police officers and it appeared that the wires in the phone junction box on the south side of the house had been jerked out.

In Appellant's sole issue on appeal, he asserts that the court erred by providing the jury with a definition of reasonable doubt. The charge to the jury read in pertinent part:

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 a 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 it fails to do so, you must acquit the defendant.

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.

Appellant did not object to this instruction.

When reviewing charge error, we employ a two-step analysis. Washington v. State, 930 S.W.2d 695, 698 (Tex.App.--El Paso 1996, no pet.). We must first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Washington, 930 S.W.2d at 698. In performing this analysis, we view the charge as a whole and our review should not be limited to a series of isolated statements or parts of the charge standing alone. Washington, 930 S.W.2d at 698; see Holley v. State, 766 S.W.2d 254, 256 (Tex.Crim.App. 1989). Next, we must determine whether sufficient harm resulted from the error to require reversal. Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698. Which harmless error standard applies depends upon whether the defendant objected. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994); Washington, 930 S.W.2d at 698. In a case where the defendant failed to object, he must show that he suffered actual egregious harm. Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698.

Appellant maintains on appeal that the above-quoted paragraph violated the holding of Paulson v. State by giving a definition of reasonable doubt. In Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991), the Texas Court of Criminal Appeals adopted a definitional instruction for "reasonable doubt" and it required that the instruction be submitted to the jury in all criminal cases. See Colbert v. State, 108 S.W.3d 316, 318 (Tex.Crim.App. 2003). The Court of Criminal Appeals removed the requirement for the trial court to instruct the jury on the definition of reasonable doubt in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000). The court determined in Paulson that the Geesa definition was confusing and logically flawed. Paulson, 28 S.W.3d at 573.

This Court has previously rejected Appellant's argument in holdings that dealt with the same language complained of in this instance. We stated that the challenged instruction does not constitute a definition of "reasonable doubt;" therefore, it does not violate the holding in Paulson. See Underwood v. State, 176 S.W.3d 635, 640-41 (Tex.App.--El Paso 2005, pet. ref'd); Torres v. State, 116 S.W.3d 208, 212 (Tex.App.--El Paso 2003, no pet.). Issue No. One is overruled.

We affirm the judgment of the trial court.

DAVID WELLINGTON CHEW, Chief Justice

March 22, 2007

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), sitting by assignment, not participating

(Do Not Publish)