Tabitha Nicole Wood v. State

i i i i i i
MEMORANDUM OPINION
No. 04-07-00592-CR
Tabitha Nicole WOOD,
Appellant
v.
The STATE of Texas,
Appellee
From the 63rd Judicial District Court, Val Verde County, Texas
Trial Court No. 10040-CR
Honorable Thomas Franklin Lee, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Karen Angelini, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: February 11, 2009
AFFIRMED
Tabitha Nicole Wood was convicted by a jury of aggravated assault with a deadly weapon,
and sentenced to eight-and-a-half years imprisonment. Wood appeals the judgment, asserting error
in the jury charge during the guilt/innocence phase of the trial. We affirm the judgment of the trial
court.
04-07-00592-CR
Wood argues it was error for the trial court to instruct the jury that “[y]our sole duty at this
time is to determine the guilt or innocence of the defendant under the indictment in this cause and
restrict your deliberations to the issue of guilt or innocence of the defendant and nothing else.”
Wood claims the instruction erroneously shifted the State’s burden by suggesting the jury was to
determine innocence, instead of simply “guilty or not guilty,” in violation of the Texas Code of
Criminal Procedure. See TEX . CODE CRIM . PROC. ANN . art. 36.14 (Vernon 2007; art. 36.19 (Vernon
2006).
The quoted language is identical to the language this court reviewed in Flores v. State,
920 S.W.2d 347 (Tex. App.—San Antonio 1996, pet. dism’d). As noted in Flores, the language
of the charge is a commonly used instruction taken from the State Bar of Texas Criminal Pattern
Jury Charges, adhering to the requirements of article 37.07 of the Code of Criminal Procedure.
See Flores, 920 S.W.2d at 357 (citing TEX . CODE CRIM . PROC. ANN . art. 37.07, Sec. 2(a)
(Vernon Supp. 2007) (“In all criminal cases . . . which are tried before a jury on a plea of not guilty,
the judge shall, before argument begins, first submit to the jury the issue of guilt or innocence of the
defendant. . . .”)). “The instruction is clearly designed to focus the jury’s attention on the first phase
of the bifurcated criminal trial—the ‘guilt/innocence’ phase—and to direct the jury away from
consideration of other issues, e.g. punishment.” Id.
Instructing the jury to consider the guilt or innocence of the defendant does not change the
burden of proof of the State. See id. As noted throughout the charge, Wood was presumed innocent
unless the State proved otherwise. The jury was repeatedly instructed it should acquit Wood of the
offense charged unless it found the evidence proved guilt beyond a reasonable doubt. Finding no
error in the court’s instruction, Wood’s issue is overruled.
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04-07-00592-CR
Accordingly, we affirm the judgment of the trial court.
Steven C. Hilbig, Justice
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