Barrios v. State

In Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009), the court of criminal appeals considered the same contention as appellant advances in this case, concerning a paragraph in the charge that was virtually identical to that presented in this case. See Barrios, 283 S.W.3d at 349-50. In Barrios, the jury was instructed: "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." Id. at 349. 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 the defendant was guilty of robbery. Id. at 350. On appeal to this court, the appellant argued 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. Id. The Court overruled his point of error, concluding that the instruction did not require the jury to unanimously agree on acquittal. Id. The Court concluded, rather, that the instruction allowed the jury to consider the charge as a whole and that it could consider the lesser included offense before making a decision on the charged offense. Id.