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Click here for the full text of this decision FACTS:Opal Kate Miles was charged with aggravated theft between $20,000 and $100,000 for embezzling funds from the Hope Foundation for Retarded Children in Friendswood. During his closing argument, Miles’ attorney reminded the jury of the presumption of innocence and that “[a]t this point in time, by law, my client is presumed to be innocent.” The prosecution objected, saying the presumption applies before the trial starts, but not after. Miles’ attorney answered that the presumption prevails until a verdict is rendered. The trial court sustained the state’s objection. However, the trial court gave the jury a charge that explained the presumption of innocence and reiterated that the law did not require the defendant to prove her innocence or produce any evidence at trial. Miles was convicted. On appeal, she challenges the trial court’s ruling on when the presumption of innocence ends. HOLDING:Affirmed. According to McGrew v. State, 143 S.W.2d 946 (Tex.Crim.App. 1940), and its progeny, it was error for the trial court to sustain the state’s objection. The presumption of innocence does not end when the presentation of evidence closes; instead, the presumption remains until the jury enters the jury room to deliberate, the court finds. This was a violation of Miles’ constitutional rights. The error was not egregious, however, in light of the testimony elicited at trial, and also considering the trial court’s jury charge explaining the presumption of innocence as well as the state’s burden of proof. “Furthermore, although by law the presumption of innocence carries into the jury room, it is continually rebutted and eroded throughout the trial by the presentation of contrary evidence by the State. While jurors must be impartial deliberators, that requirement does not necessarily mean that they will enter the jury room without some sense or opinion of the defendant’s guilt or innocence.” OPINION:Hedges, C.J.; Hedges, C.J., Fowler and Hudson, JJ. CONCURRENCE:Hudson, J. The concurrence writes to point out a “fallacy” in some of the underlying cases that support the majority’s finding on when the presumption of innocence ends. “[I]f every juror, by law, had to believe the defendant is actually innocent prior to reaching a verdict, then every juror would have to believe the defendant is innocent when voting on a verdict. And if every juror believed the defendant is innocent at the time he or she votes, what must the verdict inevitably be? However, the prosecutor and trial judge were free to explain to the jury that the presumption of innocence is merely a short-hand expression regarding the State’s evidentiary burden and not a suggestion or intimation of the defendant’s actual innocence.”

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