Young v. State

648 S.W.2d 2, 1983 Tex. Crim. App. LEXIS 977

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for driving while intoxicated. Punishment was assessed at 21 days in jail and a $400 fine.

In his third ground of error appellant contends reversible error occurred when the trial court overruled his objection to the charge for submitting an improper definition of reasonable doubt. At trial appellant made the following objection:

“In paragraph two of the Court’s Charge on page two, the Court attempts to charge the Jury by saying, ‘if after a fair and impartial consideration of all of the evidence or lack of evidence, you can honestly say that you do not have an abiding belief as to the Defendant’s guilt, then you have a reasonable doubt and it is your duty to acquit.’ Article 38.03 of the Texas Code of Criminal Procedure does not define reasonable doubt in terms of an abiding belief, or what a juror may or may not honestly say, and it’s an improper instruction to instruct a Juror that he has to have an honest belief or an abiding belief.”

The paragraph of the charge to which this objection was made instructed the jury:

“If after a fair and impartial consideration of all of the evidence or lack of evidence you can honestly say that you do not have an abiding belief as to the defendant’s guilt, then you have a reasonable doubt, and it is your duty to acquit. On the other hand, if after a fair and impartial consideration of all the evidence you can honestly say that you do have an abiding belief as to a defendant’s guilt, then you have no reasonable doubt and it is your duty to convict.”

In State v. Addington, 588 S.W.2d 569 (Tex.1979), the Court wrote:

“Clear and convincing evidence is defined as that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings.”

Submission to the jury in this case of an instruction that an “abiding belief” in appellant’s guilt would require a guilty verdict, was tantamount to authorization of a conviction on less than proof beyond a reasonable doubt. That higher burden of proof is constitutionally required. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The objection should have been sustained.

The judgment is reversed and the cause remanded.