Cynthia Phillips v. State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-00-392-CR

CYNTHIA PHILLIPS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 27,357

CONCURRING OPINION

The majority has determined that the trial court erred by including two lines from the former required reasonable doubt definition in the jury charge. The two lines are as follows:

It is not required that the prosecution prove guilt beyond all doubt. It is required that the prosecution s proof exclude all reasonable doubt concerning the defendant s guilt.

At trial, Phillips only objected to the first sentence.

Phillips contends, and the majority agrees, that because the Court of Criminal Appeals found the better practice was to give no definition of reasonable doubt to the jury, the inclusion of these lines is error. See Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). I disagree. In Paulson, the Court decided the better practice was to forgo requiring a definition on reasonable doubt. See id. It did not, however, hold that to include such a definition is error.

Better practice does not equate to being the only way to submit a proper charge. If it was error to include any type of instruction or definition regarding reasonable doubt, the court had the issue before it and could have so held. It did not. Better practice should not be construed to mean that anything else is error. The trial court has always been accorded wide discretion regarding what additional instructions and definitions should be included in the charge. We must review each charge, and each objection to a charge, on a case by case basis to determine if the charge contained error.

The United States Supreme Court does not subscribe to the theory proposed by Phillips. That Court has said:

...the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Indeed, so long as the court instructs the jury on the necessity that the defendant s guilt be proved beyond a reasonable doubt,...the Constitution does not require that any particular form of words be used in advising the jury of the government s burden of proof. Rather, taken as a whole, the instructions [must] correctly convey the concept of reasonable doubt to the jury. (citations omitted).

Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994).

The first sentence Phillips complains about is not a definition of reasonable doubt. It only tells the jury that the State s burden is not proof beyond all doubt. It does not lessen the State s burden of proof, especially in light of the second sentence which correctly repeats the State s burden. See Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2002). As a whole, the instructions correctly conveyed reasonable doubt to the jury. Thus, the trial court did not err by including these sentences in the jury charge. Phillips s first issue should be overruled.

Conclusion

Because the majority holds the trial court erred but holds that the error was harmless, they reach the same result as I would by holding that the trial court did not err. Accordingly, I concur in the result.

TOM GRAY

Justice

Concurring opinion delivered and filed February 27, 2002

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