No. 01-07-00099-CR
Opinion issued April 17, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 184th District Court Harris County, Texas, Trial Court Cause No. 1017966.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
EVELYN V. KEYES, Justice.
A jury found appellant, Luis Noe Barrios, guilty of the offense of capital murder. Because the State did not seek the death penalty, the trial court automatically assessed his punishment at confinement for life. In his sole point of error, appellant contends that the trial court, over his objection, erroneously instructed the jury to unanimously agree to acquit him of the offense of capital murder before it could consider whether appellant was guilty of the lesser-included offense of robbery. We affirm.
Background
On February 18, 2005, appellant, his brother Omar, and his sister's boyfriend, Paul Rangel, entered Nolan Laboube's apartment to rob him of drugs and money. Upon entering the apartment, appellant watched Omar and Rangel beat Laboube. Rangel then shot Laboube in the head. The group grabbed Laboube's safe and fled the apartment. A week after the robbery, police arrested appellant. During his interview with police, appellant waived his legal rights and confessed in a videotaped statement that he had participated in the robbery, but he denied knowing Rangel had a gun on him the night of the offense. At trial, the trial court instructed the jury on the elements of capital murder. Following the instruction on capital murder, the charge instructed the jury, "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 capital murder and next consider whether the defendant is guilty of robbery." The charge next instructed the jury on the elements of robbery and directed it to "acquit the defendant of robbery" unless it found from the evidence "beyond a reasonable doubt" that appellant was guilty of robbery. The charge then gave a benefit of the doubt instruction which stated: If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either capital murder on the one hand or robbery on the other hand, but you have a reasonable doubt as to which of said offenses he is guilty, then you must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of robbery. If you have a reasonable doubt as to whether the defendant is guilty of any offense defined in this charge you will acquit the defendant and say by your verdict "Not Guilty." Appellant made a proper, timely objection to the jury charge at trial, which the trial court overruled. The jury found appellant guilty of capital murder. Because the State did not seek the death penalty, the trial court automatically assessed appellant's punishment at confinement for life. Analysis In his sole point of error, appellant argues that the trial court erred by instructing the jury that it must unanimously agree that he was not guilty of capital murder before it could consider the lesser included offense of robbery. Appellant specifically complains of the portion of the charge that stated, "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 capital murder and next consider whether the defendant is guilty of robbery." (Emphasis added). Appellant argues that the so-called "acquittal first" instruction "rendered the subsequent `benefit of the doubt charge' meaningless" because "[r]equiring the jury in appellant's case to first acquit of capital murder before considering the lesser offense of robbery prevented the jury from applying the law contained in the `benefit of the doubt instruction' to the facts of appellant's case. . . ." We review jury charge error in a two-step process. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). First, we determine whether error exists in the charge. Id. If there is error, we then review the record to determine whether sufficient harm was caused by the error to require reversal of conviction. Id. When the accused has properly objected to the error in the jury charge, reversal is required when an appellate court finds some harm to his rights. Id. This Court recently held in Mitchel v. State that the type of instruction used in this case is not erroneous. No. 01-06-00369-CR, 2008 WL 339696, at *5 (Tex.App.-Houston [1st Dist.] Feb. 7, 2008, no pet. h.) (citing Boyett v. State, 692 S.W.2d 512, 515-16 (Tex.Crim.App. 1985)). The appellant in Mitchel complained of an instruction that was virtually identical in both form and substance to the jury charge complained of here. Id. This Court emphasized the fact that the jury charge is intended to be read as a whole, and we stated that the charge as written "clearly contemplated that the jury would consider the lesser offense before unanimously deciding to acquit of the greater offense" and that the jury charge as a whole "properly instructed jurors regarding the effect of their having had a reasonable doubt as to any charged offense." Id. The charge here is virtually identical to the charge in Mitchel. It is clear that the jury charge was intended to be read as a whole and that the jury could consider the "benefit of the doubt instruction" before making its final, unanimous decision. See id. Therefore, we hold that this charge is not erroneous. Because there was no error in the charge we do not need to address whether there was some harm. See Ngo, 175 S.W.3d at 743. We overrule appellant's sole point of error. Conclusion
We affirm the judgment of the trial court.