Opinion issued November 22, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-01060-CR
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MARSHALL DARNELL JOSHUA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 15CR0262
OPINION
Appellant Marshall Joshua appeals from a conviction for possession of
heroin with intent to deliver. In a single issue, he complains that the jury verdict
form should have first provided the Jury the option of finding appellant “Not
Guilty” before the option of “Guilty” or, alternatively, that the verdict form should
have admonished the jury that the placement of “Guilty” before “Not Guilty” was
not a comment on the court’s opinion of appellant’s guilt. We affirm the trial
court’s judgment.
BACKGROUND
A. Charge Objection
During the charge conference, the following exchange took place with
appellant’s attorney, who argued that the verdict form was inconsistent with the
presumption of innocence that the Jury was required to apply:
[DEFENSE COUNSEL]: -- as you know, this has always been
my argument. On the verdict page, the State always chooses to put:
We, the jury, find the defendant guilty of the offense of possession of
a controlled substance with intent to deliver. My argument to the
Court is it should read: We, the jury, find the defendant not guilty,
being the first choice. And that is mirrored in the Harris County
District Court’s jury charges because a person is presumed innocent
until they’re found guilty.
THE COURT: Ah. But then there’s the other argument, that the
State has the burden of proving their case beyond a reasonable doubt,
which is why they get to present evidence first. That’s why they get to
argue to the jury first and that’s why it’s in – it’s in the verdict forms
first.
[DEFENSE COUNSEL]: But both after they put on their
evidence and after they get to argue first and after they have allegedly
met their burden, the defendant still stands not guilty -- or presumed
innocent. So, I’ve always asked that the not guilty -- because there’s a
presumption --
THE COURT: I know -- I know you always do and I know that
you’re not the only one. But, ultimately, it’s my charge. I’ve been
doing it the same way for 23 years and that’s how I’m doing it. So,
your objection is overruled.
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B. The Court’s Charge
The charge instructed the jury that appellant had pleaded “not guilty” and
contained the definitions relevant to the crimes with which he was charged, the
lesser included offense, the law of the parties, and admonished that the failure of
appellant to testify could not be considered evidence of guilt. It also contained the
following instructions as to the standards to be applied by the jury:
Now, if you find from the evidence beyond a reasonable doubt
that on or about the 1st of FEBRUARY A.D., 2015 in Galveston
County, Texas [appellant], either acting alone or as a party, as herein
defined, with Jerome Harris, did then and there knowingly possess,
with intent to deliver, a controlled substance, namely, Heroin, in an
amount of four grams or more but less than two hundred grams, then
you will find [appellant] guilty of Possession of a Controlled
Substance with Intent to Deliver, as charged in the indictment.
Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, you will acquit the
Defendant of Possession of a Controlled Substance with Intent to
Deliver and go on to consider whether he is guilty of the lesser
offense of Possession of a Controlled Substance, namely, Heroin, in
an amount of four grams or more but less than two hundred grams.
....
Now, if you find from the evidence beyond a reasonable doubt
that on or about the 1st day of FEBRUARY, 2015, in Galveston
County, Texas [appellant], either acting alone or as a party, as herein
defined with Jerome Harris, did then and there knowingly possess a
controlled substance, namely, Heroin, in an amount of four grams or
more but less than two hundred grams, then you will find the
Defendant guilty of the lesser offense of Possession of a Controlled
Substance, namely, Heroin, in an amount of four grams or more but
less than two hundred grams.
If you believe from the evidence beyond a reasonable doubt that
the Defendant is either guilty of Possession of a Controlled Substance
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with Intent to Deliver or Possession of a Controlled Substance, but
you have a reasonable doubt as to which the Defendant is guilty of,
then you should resolve that doubt in Defendant’s favor and find him
guilty of the lesser offense of Possession of a Controlled Substance.
If you have a reasonable doubt as to whether [appellant] is
guilty of any offense, that is Possession of a Controlled Substance
with Intent to Deliver or Possession of a Controlled Substance, then
you will acquit [appellant] and say by your verdict “Not Guilty.”
....
All persons are presumed to be innocent and no person may be
convicted of an offense unless each element of the offense is proved
beyond a reasonable doubt. The fact that a person has been arrested,
confined, indicted for, or otherwise charged with, the offense gives
rise to no inference of guilt at his trial. The law does not require
[appellant] to prove his innocence or produce any evidence at all. The
presumption of innocence alone is sufficient to acquit the Defendant,
unless the jurors are satisfied beyond a reasonable doubt of
[appellant’s] guilt after careful and impartial consideration of all the
evidence in the case.
The prosecution has the burden of proving [appellant guilty]
and must do so by proving each and every element of the offense
charged beyond a reasonable doubt and if it fails to do so, you must
acquit [appellant].
In the event you have a reasonable doubt as to [appellant’s]
guilt after considering all the evidence before you and these
instructions, you will acquit him and say by your verdict “Not
Guilty.” . . . . The burden of proof in all criminal cases rests upon the
State throughout the trial and never shifts to [appellant].
....
Suitable forms for your verdict are hereto attached; your verdict
must by in writing and signed by your Foreperson. Your sole duty at
this time is to determine the guilt or innocence of [appellant] under the
indictment in this case; and restrict your deliberations solely to the
issue of guilt or innocence of [appellant].
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ISSUE ON APPEAL
Appellant raises the following issue for our review:
“The 122nd Judicial District Court should have provided the jury with
the verdict page having the “not guilty” option appearing first, and the
“guilty” option appearing second. Alternatively, the Court should
have provided contiguous instruction on the verdict page that the
placement of the options “not guilty” and “guilty”' on the verdict page
were not comments by the Court on its opinion on the matter.”
STANDARD OF REVIEW
The verdict form is part of the court’s charge. Jennings v. State, 302 S.W.3d
306, 307 (Tex. Crim. App. 2010). We review alleged jury charge error in two
steps: first, we determine whether error exists; if so, we then evaluate whether
sufficient harm resulted from the error to require reversal. Price v. State, 457
S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743–44
(Tex. Crim. App. 2005). The degree of harm required for reversal depends on
whether the jury charge error was preserved in the trial court. Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (setting forth analysis
for determining whether jury charge error requires reversal). If the jury charge
error has been properly preserved by an objection or request for instruction,
reversal is required if the appellant has suffered “some harm” from the error. Vega
v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); see Barrios v. State, 283
S.W.3d 348, 350 (Tex. Crim. App. 2009) (“If there was error and appellant
objected to the error at trial, reversal is required if the error ‘is calculated to injure
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the rights of the defendant,’ which we have defined to mean that there is ‘some
harm.’”).
Thus, in considering appellant’s single point of error, we first must
determine if there was error in the charge. Only if we find error do we address
whether appellant was harmed sufficiently to require reversal. Druery v. State, 225
S.W.3d 491, 504 (Tex. Crim. App. 2007).
ANALYSIS
The crux of appellant’s argument is that, by placing the “guilty” option on
the verdict form above the “not guilty” option, the court was essentially
commenting on the weight of the evidence and conveying to the jury that the court
thought appellant was guilty. And appellant contends that, “in some measure, the
placement of the option of ‘Guilty’ first on the verdict page, absent contiguous
written instruction to the jury that the relative placements of ‘guilty’ and ‘not
guilty’ on the verdict page were not to be taken as comment by the Court as to its
opinion on the matter, robbed Appellant of the complete presumption of innocence
and, thereby deprived him of Due Process.” Appellant analogizes this situation to
the practice of placing candidate names’ randomly on ballots to avoid the
appearance of unfairness. And he contends that the “written placement of the
options on the verdict page carries presumed imprimatur of judicial approval.”
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Appellant acknowledges that, at the beginning of trial, the court admonished
the jury that “[n]o ruling – no statement, ruling or remark that I make during the
entire time this case is on trial is intended in any way to indicate my opinion as to
the facts.” Nonetheless, appellant asserts, “this early verbal caution by the trial
court, doesn’t speak to the later charge to the jury, and is insufficiently specific to
adequately counter the impression that the written charge would leave in the jury
members’ minds – that the trial court had some biased leanings toward the first
choice of “guilty.”
The State counters that the only requirement for a written verdict form is that
“it must set out every ‘guilty’ and ‘not guilty’ option that is available to the jury.”
Jennings v. State, 302 S.W.3d at 310. And it notes that this Court, and other
appellate courts, have rejected appellant’s identical argument, concluding that that
the placement of “Guilty” before “Not Guilty” in an otherwise proper verdict form
does not indicate a trial court is biased or influence a jury to vote a particular way.
See Hallman v. State, No. 01-85-0720-CR, 1986 WL 10188, at *1 (Tex. App.—
Houston [1st Dist.] Aug. 28, 1986, no pet.) (not designated for publication) (“The
trial court properly charged the jury on the presumption of innocence and the
State's burden of proof. The order in which the verdict options appeared on the
verdict form in no way changed or contradicted the duty of the jurors to act in
accordance with the instructions given them.”); see also Cook v. State, No. 07–11–
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00390–CR, 2013 WL 5782915, at *7 (Tex. App.—Amarillo Oct. 23, 2013, pet.
ref’d) (mem. op., not designated for publication) (holding trial court’s placing
“guilty” verdict form before “not guilty” verdict form did not influence jury to
ignore the trial court’s detailed written instructions in court’s charge); Vertiz v.
State, No. 12–11–00136–CR, 2012 WL 690398, at * 4 (Tex. App.—Tyler Feb. 29,
2012, no pet.) (mem. op., not designated for publication) (holding that trial court’s
placing “guilty” verdict form before “not guilty” verdict form did not influence the
jury to find appellant guilty when it would not have otherwise done so); cf. Estelle
v. State, No. 05–11–00353–CR, 2013 WL 222268, at *4 (Tex. App.—Dallas Jan.
16, 2013, no pet.) (mem. op., not designated for publication) (rejecting argument
that trial court’s placing verdict form with harshest possible punishment first was
comment on the evidence and statement as to which punishment court preferred).
Appellant has not demonstrated error in the trial court’s verdict form. We
overrule his sole issue.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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