Rodriguez v. State

• Decision Date: 26 July 2002
• Docket Number: No. 03-01-00573-CR.,03-01-00573-CR.
• Citation: 96 S.W.3d 398
• Parties: Luis Felipe RODRIGUEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

96 S.W.3d 398

Luis Felipe RODRIGUEZ, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 03-01-00573-CR.

Court of Appeals of Texas, Austin.

July 26, 2002.

Discretionary Review Refused December 4, 2002.

G. Scott Brown, Fort Worth, for Appellant.

Helena F. Faulkner, Charles M. Mallin, Criminal District Attorney's Office, Fort Worth, for Appellee.

Before Justices KIDD, PATTERSON and ONION.^*

JOHN F. ONION, JR., Justice (Retired).

Appellant Luis Felipe Rodriguez, Jr. appeals his conviction for operating a motor vehicle while intoxicated, misdemeanor repetition. See Tex. Pen.Code Ann. §§ 49.04, .09(a) (West Supp.2002).¹ The jury found appellant guilty and the trial court assessed his punishment at forty-five days' confinement in the county jail and a fine of $1,000.

Point of Error

Appellant advances a sole complaint on appeal. He contends that the trial court erred in including in the jury charge, over objection, a portion of the Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App.1991), definition of reasonable doubt when that portion of Geesa had been overruled by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). We will affirm the trial court's judgment.

Information

The information alleged that appellant on or about January 2, 2001, operated a motor vehicle while intoxicated in a public place while "not having the normal use of his mental and physical faculties by reason of the introduction of alcohol into his body." The enhancement paragraph alleged a prior misdemeanor conviction for operating a motor vehicle while intoxicated in Bexar County on April 3, 2000.

Facts

Neither the legal nor factual sufficiency of the evidence is challenged. Briefly, the facts show that in the early morning hours of January 2, 2001, Brian Brindley, a firefighter EMT, was on his way home from work. A silver BMW automobile being driven erratically on Interstate 20 in Tarrant County, almost ran Brindley's vehicle off the road. Another minivan was forced off the road. Brindley followed the BMW while calling 911 on his cell phone to report a possible intoxicated driver. Brindley observed the BMW being driven erratically from one lane to another and varying its speed from eighty miles per hour to twenty miles per hour. After following the car for ten miles, Brindley saw the BMW stop on the shoulder of the road. Brindley stopped, approached the BMW, and opened the car door. Appellant was behind the wheel and was alone. Appellant denied driving erratically or drinking alcohol. Appellant's speech was slurred, and he thought he was still in Plano. Based on his EMT experience, Brindley did not observe anything medically wrong with appellant.

Chris Bardwell, an off-duty Grand Prairie police officer, saw Brindley following the BMW, which was weaving in and out of its lane of traffic and varying its speed. Bardwell also notified several police dispatchers of a possible intoxicated driver. Bardwell stopped and parked behind Brindley.

Arlington Police Officer Christopher Caballos arrived on the scene where appellant, Brindley, and Bardwell were parked. When appellant got out of the BMW, he swayed, was unsteady on his feet, had the smell of an alcoholic beverage on his breath, and had bloodshot eyes. Appellant failed all three field sobriety tests that he was asked to perform. In Officer Caballos's opinion, appellant was intoxicated. He was arrested.

A videotape was taken of appellant at the Arlington city jail approximately thirty minutes after his arrest. The videotape was introduced at trial. On cross-examination, Caballos testified that appellant was required to place his feet in certain designated footprints for the purpose of the tape. The record reflects:

Q. Okay. And his feet are close together. And the jury can see that he is not swaying at all on those lines, right?

A. He does pretty good, yes, sir.

Appellant claims that the evidence shows a conflict as to whether he was intoxicated while operating the BMW. At the close of the guilt/innocence stage of the trial, the trial court included in its jury charge the following:

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 otherwise charged with the offense, gives rise to no inference of guilt at his trial. The law does not require the 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.

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.

In the event that 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)

Appellant expressly objected to the giving of the third paragraph above in bold print. The trial court was told that the objected-to paragraph had been a part of the Geesa definition of reasonable doubt and that Geesa in this regard had been overruled by Paulson. Appellant's objection was overruled.

Discussion

"Despite its early use in American jurisprudence, the phrase `reasonable doubt' appears in neither our federal nor state constitutions." Paulson v. State, 991 S.W.2d 907, 911 (Tex.App.-Houston [14th Dist.] 1999), rev'd on other grounds, Paulson, 28 S.W.3d 570; see also In re Winship, 397 U.S. 358, 377, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Black, J., dissenting).

We know, of course, that the due process clause of the Fourteenth Amendment to the United States Constitution protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Winship, 397 U.S. at 364, 90 S.Ct. 1068. Although the "beyond a reasonable doubt" standard is a requirement of due process, the federal constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course. Victor v. Nebraska, 511 U.S. 1, 5, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). Moreover, the United States Constitution does not require that any particular form of words be used in advising the jury of the prosecution's burden of proof. Rather, the jury instructions taken as a whole must correctly convey the concept of reasonable doubt to, the jury. Id.²

Article 2.01 of the Texas Penal Code provides:

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 he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial. Tex. Pen.Code Ann. § 2.01 (West 1994). The identical language is found in the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.03 (West Supp.2002). Despite different language in the past, these statutes and their forerunners³ shave been substantially the same. See Aston v. State, 656 S.W.2d 453, 456-58 (Tex.Crim.App.1983). Neither section 2.01 nor article 38.03 define "reasonable doubt" for the purpose of the statute or for either code nor did their statutory forerunners do so. In the absence of special definitions, statutory language can be measured by common understanding and practices or construed in the sense generally understood. See Ex parte Anderson, 902 S.W.2d 695, 699 (Tex.App.-Austin 1995, pet. ref'd). Statutory words are to be read in context and construed according to the rules of grammar and common usage. See Tex. Gov't Code Ann. § 311.011(a) (West 1998). Words and phrases that have acquired a technical or particular meaning by legislative definition or otherwise shall be construed accordingly. See Tex. Gov't Code Ann. § 311.011(b) (West 1998).⁴

Long prior to Winship, a criminal defendant in Texas was entitled by statute to a jury charge on proof of guilt beyond a reasonable doubt. McCracken v. State, 168 Tex.Crim. 565, 330 S.W.2d 613, 614 (1960), held that a defendant was deprived of "a valuable right conferred by statute" when the jury charge failed to apply the law of reasonable doubt in submitting the case to the jury despite a special requested charge. The cause was reversed.⁵

Although a criminal defendant is entitled by statute to have the law of reasonable doubt applied in the jury charge or instructions, he was not always entitled to have the term defined. See Pigg v. State, 162 Tex.Crim. 521, 287 S.W.2d 673, 674 (1956). "The charge on reasonable doubt should be given in the language of the statute; attempts to amplify it, explain it or belittle it almost invariably lead to a reversal." 1 A.R. Stout, Branch's Anno. Penal Code § 16 (2d ed.1956) (citations omitted); see also Whitson v. State, 495 S.W.2d 944, 946 (Tex.Crim.App.1973).

Prior to the 1991 decision in Geesa and for well over a century, Texas trial courts normally did not define "reasonable doubt" in jury charges. See McGinty v. State, 723 S.W.2d 719, 721 (Tex.Crim.App.1986). This is not to say from time to time there were not definitions of "reasonable doubt" submitted to juries, but these were not usually approved. See generally Craig Hemmens et al., "Doubt Over Reasonable Doubt In Texas," 59 Tex. Bar. J. 130 (Feb. 1996). In Abram v. State, 36 Tex.Crim. 44, 35 S.W. 389, 390 (1896), the trial court gave a definition of reasonable doubt which included the phrase that "[t]he...