Dominguez, Ramon Obdulio v. State ( 2004 )

Affirmed; Opinion of July 13, 2004, Withdrawn; and Substituted Majority and Concurring Opinions filed November 2, 2004

Affirmed; Opinion of July 13, 2004, Withdrawn; and Substituted Majority and Concurring Opinions filed November 2, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00893-CR

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RAMON OBDULIO DOMINGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 932,863

S U B S T I T U T E D M A J O R I T Y   O P I N I O N

Ramon Obdulio Dominguez appeals a conviction for murder^[1] on the grounds that the trial court committed reversible error by: (1) permitting the State to pose inflammatory and argumentative questions; and (2) providing a definition of Abeyond a reasonable doubt@ in the jury charge.  We affirm.

Appellant=s first issue argues that it was reversible error to allow the State to pose the following two questions on direct examination of the complainant=s daughter because they were inflammatory and argumentative in using the word Amurder@ when appellant had admitted to killing the complainant and the only issue at trial was appellant=s intent:

THE STATE:              Prior to your mother being murdered B

DEFENSE COUNSEL:         Objection, Your Honor.  May the jury be instructed to disregard that last B

THE COURT:                        What?

DEFENSE COUNSEL:        B the last statement, Your Honor?

THE COURT:                        Denied.

THE STATE:                        Before your mother was murder[ed], did you and Roscoe live with her?

WITNESS:                       Yes.

*          *          *          *

THE STATE:                        Okay.  And is that when you found out your mother had been murdered?

WITNESS:                       Yes.

DEFENSE COUNSEL:         Your Honor, I=m going to object.  That=s an issue that the jury has to decide, Your Honor.

THE COURT:                        Overruled.

WITNESS:                             Yes.

In order to preserve an issue for appeal, an objection at trial must: (1) be specific as to its grounds (unless they are apparent from the context);^[2] (2) comport with the complaint on appeal;^[3] and (3) be re-urged each time the objectionable evidence is offered.  Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999).  Appellant=s first objection above did not state any ground whatever (but instead proceeded directly to requesting an instruction to disregard).  Even if it was apparent from the context that the objection was to the question assuming a fact in issue, as the subsequent objection specified, neither objection comports with appellant=s complaint on appeal that the statement was argumentative and inflammatory. In addition, the word Amurder@ was used by the State without objection numerous times while cross-examining appellant, questioning another witness, and in closing argument.  Therefore, appellant=s first issue presents nothing for our review and is overruled.

Appellant=s second issue contends that the trial court committed reversible error by including an instruction defining Areasonable doubt@ in the jury charge: "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."^[4]  The beyond a reasonable doubt standard is a requirement of due process, but the United States Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so.  Victor v. Nebraska,  511 U.S. 1, 5 (1994).  However, although no particular combination of words must be used, a trial court must instruct a jury on the necessity that guilt be proved beyond a reasonable doubt; and the instructions, taken as a whole, must correctly convey the concept of reasonable doubt to the jury.  Id. An instruction will, thus, violate due process if it can reasonably be understood to allow a conviction based on evidence that does not prove every element of the charged offense beyond a reasonable doubt.  See id. at 5-6.

After over a hundred years of not requiring or encouraging any jury instruction defining reasonable doubt, the Texas Court of Criminal Appeals held in 1991 and 1996, respectively, that: (1) a prescribed AGeesa@ instruction, defining reasonable doubt, was not only permissible but mandatory;^[5] and (2) a failure to submit this instruction, whether or not requested, was automatic reversible error, immune from harm analysis.^[6]  See Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App. 2000).

In Paulson, the appellant complained of the lack of a Geesa instruction, and the court of appeals reversed his conviction.  Id. at 570-71.  The Court of Criminal Appeals reversed that decision, essentially concluding that a Geesa instruction was not only not required, it was prohibited unless both the State and defendant agreed to submit it.  Id. at 572.  The aspect of the Geeza instruction that the Court found objectionable was its three attempts to define reasonable doubt:

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.

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.

Id. at 572.  The Court noted that the first definition was merely useless, but that the use of the word, Ahesitation@ in the second and third definitions was ambiguous, confusing, and logically flawed in that considerations foreign to reasonable doubt could make a person hesitate to act.  Id. at 572-73.  Therefore, as contrasted from a deficiency whereby an instruction could allow a conviction based on less than proof beyond a reasonable doubt, as addressed in Victor,^[7] the concern in Paulson was an instruction that could prevent conviction despite proof beyond a reasonable doubt. See Paulson, 28 S.W.3d at 572. Paulson thus held, in effect, that a defendant is not entitled to such an instruction.

Of the three definitions of reasonable doubt contained in a Geeza instruction, only the first was included in the instruction given in this case.  Although Paulson clearly states that the Abetter practice@ is to give no definition of reasonable doubt to the jury, it did not address or rule out any such definition differing from that in a Geesa instruction, such as the one in this case.  See id.  Rather, Paulson expressly acknowledged Victor=s holding that reasonable doubt instructions are not constitutionally prohibited.  See id. at 573.^[8]

In addition, the reasonable doubt definition given in this case is clearly not one of the two on which the Paulson decision turned.  See id. at 572-73.  Moreover, although the definition given in this case is not helpful, according to Paulson, it does not contain language that could allow conviction based on less than proof beyond a reasonable doubt.  At most, Paulson held that defendants are not entitled to such a definition, not that their rights would be violated by including it.^[9]  Accordingly, appellant=s second issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Substituted Majority and Concurring Opinions filed November 2, 2004.

Panel consists of Justices Fowler, Edelman, and Seymore.  (Fowler, J., concurring.)

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]           A jury found appellant guilty and sentenced him to 55 years confinement.

^[2]           Tex. R. App. P. 33.1(a)(1)(A).

^[3]           Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003), cert. denied, 124 S. Ct. 2157 (2004).

^[4]           Although appellant did not object to the inclusion of this instruction in the charge, his brief does not attempt to demonstrate egregious harm, a finding of which would be necessary to obtain reversal for unpreserved charge error.  See, e.g., Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002).

^[5]           See Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991).

^[6]           See Reyes v. State, 938 S.W.2d 718, 721 (Tex. Crim. App. 1996).

^[7]           See Victor, 511 U.S. at 5-6.

^[8]           Victor upheld two instructions defining reasonable doubt in terms of a Ahesitation to act@ standard.  See 511 U.S. at 20-21.

^[9]           Because appellant=s second issue fails to demonstrate charge error, it presents no issue regarding egregious harm.