In Re CS

79 S.W.3d 619, 2002 WL 1041105
CourtCourt of Appeals of Texas
DecidedMay 24, 2002
Docket06-01-00119-CV
StatusPublished
Cited by1 cases

This text of 79 S.W.3d 619 (In Re CS) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re CS, 79 S.W.3d 619, 2002 WL 1041105 (Tex. Ct. App. 2002).

Opinion

79 S.W.3d 619 (2002)

In the Matter of C.S., a Child.

No. 06-01-00119-CV.

Court of Appeals of Texas, Texarkana.

Submitted April 11, 2002.
Decided May 24, 2002.

*620 James R. Hagan, Longview, for appellant.

Andy Porter, Assistant District Attorney, Longview, for appellee.

Before CORNELIUS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Chief Justice CORNELIUS.

The County Court at Law of Gregg County, sitting as a juvenile court, conducted an adjudication hearing on a charge that C.S., a minor, engaged in delinquent conduct by making a terroristic threat. A jury found that C.S. committed the act, and the court, in a disposition hearing, placed C.S. on one year's probation. See Tex. Fam.Code Ann. § 54.03 (Vernon Supp. 2002); Tex. Pen.Code Ann. § 22.07 (Vernon 1994).

The evidence is undisputed. C.S., who was twelve years old at the time and a student at Foster Middle School, was brought to his school principal's office because of misbehavior, and he was facing *621 reassignment to an on-campus suspension at the school as punishment. C.S., in the presence of the principal's receptionist, the school attendance clerk, and two other adults, became very angry and upset. He denied committing the misbehavior, said that it was not his fault, and that he was being persecuted by his teacher. The principal's receptionist, Marsha Parker, described C.S. as sullen and angry. C.S. did not want to be sent to on-campus suspension again. Then he said, "I'm going to blow up the school." Lavell Bridges, the school attendance clerk, asked C.S. what was wrong. C.S. then said, "I said I was going to blow up the school." Bridges said, "You can't say that." Then C.S. said, "Well, I said I was going to blow up the school." Bridges then left the office. Parker, the receptionist, then took C.S. into the principal's office and asked him to repeat for the principal what he had said. Initially, C.S. refused. Then the principal, Connie Isabell, came over and stood in front of C.S. and asked him to repeat what he had said. C.S. repeated to the principal, Isabell, what he had said to Parker. Parker then left the principal's office. The police were called to the school, and Officer Ivory, the school resource officer, took C.S. into custody.

The petition charged that C.S. engaged in delinquent conduct and committed a terroristic threat under Section 22.07 of the Texas Penal Code by threatening to commit an offense involving violence to property, namely arson, with intent to interrupt or prevent the use or occupation of a building.[1]

C.S. raises two issues on appeal: (1) the court erred by giving the jury a definition of "reasonable doubt," and (2) the evidence is legally and factually insufficient to prove that by his statement he intended to interrupt or prevent the use or occupancy of the school.

In Paulson v. State, 28 S.W.3d 570 (Tex. Crim.App.2000), the Texas Court of Criminal Appeals specifically overruled the portion of Geesa v. State[2] that required trial courts to define reasonable doubt for the jury and found that the better practice was to give the jury no definition or explanation of the term.

C.S. objected to the inclusion of the Geesa-approved definition in the jury charge. The trial court overruled the objection. The State argues that C.S. has waived any error in this regard because at voir dire the court read, without objection, a substantial part of the definition to the jury panel as part of her explanation of how they should apply the concept of reasonable doubt in the trial. The State argues that this explanation to the jury, at voir dire without objection, is tantamount to an agreement of counsel to include the definition in the charge. We disagree. We conclude that C.S. could not have anticipated that the court's brief discussion of the requirement of proof beyond a reasonable doubt would necessarily mean that the court would later include the formal definition in the jury charge. We find that C.S. has adequately preserved the claimed error for review.

We find that the court erred in including the reasonable doubt definition in the jury charge. Finding error in the court's charge, however, merely begins our inquiry. Almanza v. State, 686 S.W.2d *622 157, 174 (Tex.Crim.App.1984) (op. on reh'g). We must now determine whether the error was so harmful that it requires reversal. Id. at 171. C.S. raised a proper objection at trial, so reversal is required if the error was calculated to injure him. Id.; Aguilar v. State, 914 S.W.2d 649, 651 (Tex.App.-Texarkana 1996, no pet.). The presence of any harm, regardless of degree, is sufficient to require reversal. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim.App.1994). C.S. has the burden to persuade us that he suffered some actual harm as a consequence of the charging error. Id.; see also Belyeu v. State, 791 S.W.2d 66, 75 (Tex.Crim.App.1989); LaPoint v. State, 750 S.W.2d 180, 191 (Tex. Crim.App.1986) (op. on reh'g); Gornick v. State, 947 S.W.2d 678, 681 (Tex.App.-Texarkana 1997, no pet.).

The majority in Paulson v. State, 28 S.W.3d 570, rejected the reasonable doubt definition for several reasons. It concluded that the definition was repetitious, logically infirm, and if followed literally, would cause a jury to never convict anyone. From this, it is obvious that the majority believed the definition favored the defendant because, if the jurors properly applied it, they would be less likely to convict. In a concurring opinion, Judge Holland concluded that the definition should not be given and similarly reasoned that its wording "could confuse jurors into applying a reduced burden of proof on the State to prove its case." Id. at 576. Thus, seven judges of the Texas Court of Criminal Appeals agreed that the definition favored the defendant over the state. For the same reasons, and in the complete absence of any explicit suggestion by C.S. as to how the definition harmed him, we conclude that the error was not harmful, and so reversal is not appropriate.

C.S. next contends that the evidence is factually and legally insufficient to support the jury's verdict that he made a terroristic threat. Our review of the sufficiency of evidence in an adjudication of delinquency is based on the standards applicable to sufficiency of the evidence challenges in criminal cases. See Tex. Fam. Code Ann. § 54.03(f); see also In re L.M., 993 S.W.2d 276, 284 (Tex.App.-Austin 1999, pet. denied); In re E.P., 963 S.W.2d 191, 193 (Tex.App.-Austin 1998, no pet.). In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

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