Brooks v. State

Court of Appeals of Texas

Brooks v. State

768 S.W.2d 481, 1989 Tex. App. LEXIS 788, 1989 WL 31304

CourtCourt of Appeals of Texas

DecidedApril 6, 1989

Docket01-86-00206-CR

StatusPublished

Cited by6 cases

This text of 768 S.W.2d 481 (Brooks v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brooks v. State, 768 S.W.2d 481, 1989 Tex. App. LEXIS 788, 1989 WL 31304 (Tex. Ct. App. 1989).

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[482]*482OPINION ON REMAND

DUGGAN, Justice.

A jury convicted appellant of aggravated robbery and assessed punishment at 20 years confinement. In his appeal, appellant asserted that the parole charge given to the jury pursuant to Tex.Code Crim.P. Ann. art. 37.07, sec. 4,¹ violated the United States Constitution and the Texas Constitution. In an unpublished opinion issued on February 5, 1987, this Court upheld the constitutionality of the statute and overruled this point of error. The Texas Court of Criminal Appeals has vacated the judgment of this Court and remanded the cause so that the point of error concerning the parole charge may be reconsidered in light of its holding in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988).

In Rose, the Texas Court of Criminal Appeals held that article 37.07, section 4 violated the separation of powers and the due course of law provisions of the Texas Constitution. Rose, 752 S.W.2d at 552. On its own motion for rehearing, the court then held that when the trial court gives a parole charge, the appellate court must apply the rule 81(b)(2) test to determine whether appellant was harmed. Rose, 752 S.W.2d at 553; Tex.R.App.P. 81(b)(2). That rule provides:

[i]f the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

In making its assessment of harm in Rose, the court considered a number of factors in finding the error made no contribution to the punishment assessed: (1) a curative charge given to the jury; (2) the egregious facts of the case; (3) and the defendant’s criminal record. Rose, 752 S.W.2d at 554-555. The jury convicted Rose of aggravated robbery and assessed the maximum sentence of life imprisonment.

In the case at hand, after giving the statutory parole charge, the trial court gave a curative charge:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant. ******

You are not discuss among yourselves how long the accused would be required to serve the sentence that you impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas, and must not be considered by you.

Compare Rose, 752 S.W.2d at 554. As noted in Rose, we presume that the jury followed the instructions given by the trial court. Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983). Appellant has not presented any evidence for consideration by this Court that rebuts this presumption.

Next, we look to the facts of the case. Appellant approached Barrett Denson at a Stop N Go convenience store around 11:30 p.m. and asked Denson if he knew where to get some cocaine. Denson took appellant to McChristian’s (the victim’s) apartment. McChristian made a phone call and told appellant he could get a quarter of an ounce for $480.

Appellant and Denson went back to the convenience store where appellant had a car waiting. Appellant introduced the two men in the car to Denson as his cousins. After appellant and Denson got into the car, they drove back around to McChris-tian’s apartment. Denson went into the apartment to get McChristian. McChris-tian came out to the car and talked to appellant and the other two men (Nash and Rivers) about the cocaine transaction. After a few minutes,- all five men returned to McChristian’s apartment, where they re[483]*483mained until McChristian told them they would have to leave because “his man was coming.”

Denson, appellant, Nash, and Rivers went back out to the car for about 20 minutes. They returned to the apartment, and Denson went inside to find McChristian and three other persons, Picking, Soward, and Boute. After a few minutes, appellant, Nash, and Rivers knocked on the door and entered the apartment. Nash and Rivers went to the kitchen area where McChristian and Picking stood, and appellant remained by the door. McChristian prepared some cocaine, and appellant and Rivers freebased the cocaine. Appellant returned to his post by the door. Rivers then yelled “HPD.” Nash, Rivers, and appellant all drew guns.

Rivers pushed Picking on the floor and handcuffed him; Nash showed them he had a badge. Nash then shot McChristian in the back. Nash and Rivers ordered everyone to lie down on the floor, and Rivers demanded cocaine and money. Appellant remained by the door. After Nash took some money from McChristian’s hand, Rivers, Nash, and appellant left. When a few minutes had passed, the others got up, saw that McChristian was shot, and left the apartment. Denson had someone call the police from the convenience store.

During final arguments, appellant’s counsel asked the jury to assess the minimum penalty of five years. Neither the State nor the defense mentioned the effect of parole law. Appellant was subject to a potential punishment range of five to 99 years or life. The jury assessed punishment at 20 years confinement.

While the record does not indicate any prior convictions for appellant, it does amply indicate appellant’s participation in this violent crime from its beginning to end. Appellant initiated the contact with Den-son, brought Nash and Rivers into the transaction, drove the car, and wielded a gun during the actual robbery. The trial court properly included a curative charge, and neither side focused on parole during final arguments. We find beyond a reasonable doubt that the parole charge did not affect the jury’s assessment of punishment.

We affirm the judgment of the trial court.

O’CONNOR, J., dissents.

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[482]*482OPINION ON REMAND

DUGGAN, Justice.

A jury convicted appellant of aggravated robbery and assessed punishment at 20 years confinement. In his appeal, appellant asserted that the parole charge given to the jury pursuant to Tex.Code Crim.P. Ann. art. 37.07, sec. 4,¹ violated the United States Constitution and the Texas Constitution. In an unpublished opinion issued on February 5, 1987, this Court upheld the constitutionality of the statute and overruled this point of error. The Texas Court of Criminal Appeals has vacated the judgment of this Court and remanded the cause so that the point of error concerning the parole charge may be reconsidered in light of its holding in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988).

In Rose, the Texas Court of Criminal Appeals held that article 37.07, section 4 violated the separation of powers and the due course of law provisions of the Texas Constitution. Rose, 752 S.W.2d at 552. On its own motion for rehearing, the court then held that when the trial court gives a parole charge, the appellate court must apply the rule 81(b)(2) test to determine whether appellant was harmed. Rose, 752 S.W.2d at 553; Tex.R.App.P. 81(b)(2). That rule provides:

[i]f the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

In making its assessment of harm in Rose, the court considered a number of factors in finding the error made no contribution to the punishment assessed: (1) a curative charge given to the jury; (2) the egregious facts of the case; (3) and the defendant’s criminal record. Rose, 752 S.W.2d at 554-555. The jury convicted Rose of aggravated robbery and assessed the maximum sentence of life imprisonment.

In the case at hand, after giving the statutory parole charge, the trial court gave a curative charge:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant. ******

You are not discuss among yourselves how long the accused would be required to serve the sentence that you impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas, and must not be considered by you.

Compare Rose, 752 S.W.2d at 554. As noted in Rose, we presume that the jury followed the instructions given by the trial court. Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983). Appellant has not presented any evidence for consideration by this Court that rebuts this presumption.

Next, we look to the facts of the case. Appellant approached Barrett Denson at a Stop N Go convenience store around 11:30 p.m. and asked Denson if he knew where to get some cocaine. Denson took appellant to McChristian’s (the victim’s) apartment. McChristian made a phone call and told appellant he could get a quarter of an ounce for $480.

Appellant and Denson went back to the convenience store where appellant had a car waiting. Appellant introduced the two men in the car to Denson as his cousins. After appellant and Denson got into the car, they drove back around to McChris-tian’s apartment. Denson went into the apartment to get McChristian. McChris-tian came out to the car and talked to appellant and the other two men (Nash and Rivers) about the cocaine transaction. After a few minutes,- all five men returned to McChristian’s apartment, where they re[483]*483mained until McChristian told them they would have to leave because “his man was coming.”

Denson, appellant, Nash, and Rivers went back out to the car for about 20 minutes. They returned to the apartment, and Denson went inside to find McChristian and three other persons, Picking, Soward, and Boute. After a few minutes, appellant, Nash, and Rivers knocked on the door and entered the apartment. Nash and Rivers went to the kitchen area where McChristian and Picking stood, and appellant remained by the door. McChristian prepared some cocaine, and appellant and Rivers freebased the cocaine. Appellant returned to his post by the door. Rivers then yelled “HPD.” Nash, Rivers, and appellant all drew guns.

Rivers pushed Picking on the floor and handcuffed him; Nash showed them he had a badge. Nash then shot McChristian in the back. Nash and Rivers ordered everyone to lie down on the floor, and Rivers demanded cocaine and money. Appellant remained by the door. After Nash took some money from McChristian’s hand, Rivers, Nash, and appellant left. When a few minutes had passed, the others got up, saw that McChristian was shot, and left the apartment. Denson had someone call the police from the convenience store.

During final arguments, appellant’s counsel asked the jury to assess the minimum penalty of five years. Neither the State nor the defense mentioned the effect of parole law. Appellant was subject to a potential punishment range of five to 99 years or life. The jury assessed punishment at 20 years confinement.

While the record does not indicate any prior convictions for appellant, it does amply indicate appellant’s participation in this violent crime from its beginning to end. Appellant initiated the contact with Den-son, brought Nash and Rivers into the transaction, drove the car, and wielded a gun during the actual robbery. The trial court properly included a curative charge, and neither side focused on parole during final arguments. We find beyond a reasonable doubt that the parole charge did not affect the jury’s assessment of punishment.

We affirm the judgment of the trial court.

O’CONNOR, J., dissents.

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