Robert Dale YOUNG, Appellant, v. The STATE of Texas, Appellee.
No. 64048.
Court of Criminal Appeals of Texas, En Banc.
April 6, 1983.
ODOM, Judge.
When the property referred to in an indictment is the property of a corporation, it is the preferable pleading practice to allege “special” ownership in a natural person acting for the corporation. Three ways that ownership may be established are that the named individual had (1) title to the property, (2) possession, or (3) a greater right to possession than the defendant.
In the instant case, the State was required to prove ownership in Rex Reagan in conformity with its allegations in the indictment. As noted above, Reagan never testified. There was no testimony from anyone that Reagan had title to the property, that Reagan had possession of the property, or that Reagan had a greater right to possession than the defendant. Turner v. State, supra. See also Turner v. State, 635 S.W.2d 734 (Tex.Cr.App.1982). The proof is, therefore, at variance with the allegations in the indictment and insufficient as to the element of ownership as alleged. Appellant‘s ground of error is sustained.
The judgment is reversed and reformed to reflect an acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Ex parte Mixon, 583 S.W.2d 378 (Tex.Cr.App.1979), cert. denied sub nom Texas v. Mixon, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980).
William R. McKinney, Jr. and Ebelardo Lopez, Amarillo, for appellant.
Dale Paul Summa, County Atty., Stratford, Robert Huttash, State‘s Atty., and Alfred Walker, Asst. State‘s Atty., Austin, for the State.
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.
ONION, Presiding Judge, concurring.
I concur in the reversal for the inclusion of an improper definition of reasonable doubt to which the appellant properly objected.
The term “reasonable doubt” is not normally defined in a Texas criminal case. A host of cases hold that it should not be defined. See, e.g., Massey v. State, 1 Tex.App. 563, 570 (1877); Fury v. State, 8 Tex.App. 471 (1880); McPhail v. State, 9 Tex.App. 164 (1880); Cohea v. State, 9 Tex.App. 173 (1880); Schultz v. State, 20 Tex.App. 315 (1886); Johnson v. State, 27 Tex.App. 163, 11 S.W. 106 (1889); Lenert v. State, 63 S.W. 563 (Tex.Cr.App.1901); Holmes v. State, 68 Tex.Cr.R. 17, 150 S.W. 926 (Tex.Cr.App.1912); Sanchez v. State, 69 Tex.Cr.R. 1134, 153 S.W. 1133 (Tex.Cr.App.1913); Marshall v. State, 76 Tex.Cr.R. 386, 175 S.W. 154 (Tex.Cr.App.1915); Bennett v. State, 91 Tex.Cr.R. 422, 239 S.W. 951 (Tex.Cr.App.1922); Sagu v. State, 94 Tex.Cr.R. 14, 248 S.W. 390 (Tex.Cr.App.1923); Gallegos v. State, 152 Tex.Cr.R. 508, 215 S.W.2d 344 (Tex.Cr.App.1948); Pierce v. State, 159 Tex.Cr.R. 504, 265 S.W.2d 601 (Tex.Cr.App.1954); Pigg v. State, 162 Tex.Cr.R. 521, 287 S.W.2d 673 (Tex.Cr.App.1956). Cf. Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973). Thus in Texas only a nondefinitional charge on “reasonable doubt” is normally given in a criminal case.
While a charge defining reasonable doubt may pass muster, this court does not con-
I concur.
ODOM
JUDGE