LI v. STATE (2005)

OPINION

A jury convicted Appellant Anne I. Li of assault with bodily injury, and the trial court sentenced her to 120 days in jail, probated for one year, plus a $500 fine.   In one point, Appellant complains of the following jury instruction:  “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.”   Appellant argues that this instruction is erroneous because it amounts to an improper definition of beyond a reasonable doubt.

The complained of instruction is part of the Geesa definition of beyond a reasonable doubt.¹  As Appellant points out, the Texas Court of Criminal Appeals held in Paulson v. State that giving the full Geesa instruction is reversible error absent agreement of the parties.²  Appellant here did not agree to the instruction.

While it seems fundamentally unfair that all portions of the definition of beyond a reasonable doubt that benefit a defendant have been removed from the definition, leaving only the portion that benefits the State, and while it seems clear that if the definition is improper in whole it should also be improper when only that portion which benefits one party and not the other is retained, both this court and the Texas Court of Criminal Appeals have ruled otherwise, holding that the instruction in question is not improper.³

We are constrained therefore to hold that the trial court did not err in including the complained of portion of the Geesa instruction in the jury charge.   We overrule Appellant's sole point and affirm the trial court's judgment.

FOOTNOTES

1.   See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991).

2.   28 S.W.3d 570, 573 (Tex.Crim.App.2000).

3.   See Woods v. State, 152 S.W.3d 105, 115 (Tex.Crim.App.2004);  e.g., Pope v. State, 161 S.W.3d 114, 125 (Tex.App.-Fort Worth 2004, no pet. h.).

LEE ANN DAUPHINOT, Justice.

WALKER and McCOY, JJ. concur without opinion.