Carter v. State

Court of Criminal Appeals of Texas

Carter v. State

790 S.W.2d 661, 1990 Tex. Crim. App. LEXIS 133, 1990 WL 82814

CourtCourt of Criminal Appeals of Texas

DecidedJune 20, 1990

DocketNo. 979-89

StatusPublished

This text of 790 S.W.2d 661 (Carter v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Carter v. State, 790 S.W.2d 661, 1990 Tex. Crim. App. LEXIS 133, 1990 WL 82814 (Tex. 1990).

Pincite

Opinions

CLINTON, Judge,

concurring Opinion

On Appellant’s Petition For Discretionary Review.

This is a “Rose harm” case. Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987). The facts of the case and circumstances of the aggravated sexual assault with a deadly weapon are set out in the opinion below in Carter v. State, 770 S.W.2d 604 (Tex.App.—Fort Worth 1989).

The Fort Worth Court of Appeals concluded that “the factors in this case indicate beyond a reasonable doubt the unconstitutional jury charge made no contribution to the punishment assessed.” Id., at 606. Certain particulars of its rationale are at odds with the findings and holdings of this Court in Arnold v. State, 784 S.W.2d 372 (Tex.Cr.App.1990), and the term of sixty years is suspect under the “one-third rule,” id., at 383-394. But we are satisfied that a rational appellate court could determine and declare that the error did not influence the jury adversely to appellant in assessing punishment, Arnold, supra, at 377, that it made no contribution to punishment assessed against appellant, id., at 390.

Therefore, while its reasons for decision are incorrect, the judgment of Fort Worth Court of Appeals is ultimately correct. Thus I would also refuse the PDR.

Free access — add to your briefcase to read the full text and ask questions with AI

CLINTON, Judge,

concurring Opinion

On Appellant’s Petition For Discretionary Review.

This is a “Rose harm” case. Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987). The facts of the case and circumstances of the aggravated sexual assault with a deadly weapon are set out in the opinion below in Carter v. State, 770 S.W.2d 604 (Tex.App.—Fort Worth 1989).

The Fort Worth Court of Appeals concluded that “the factors in this case indicate beyond a reasonable doubt the unconstitutional jury charge made no contribution to the punishment assessed.” Id., at 606. Certain particulars of its rationale are at odds with the findings and holdings of this Court in Arnold v. State, 784 S.W.2d 372 (Tex.Cr.App.1990), and the term of sixty years is suspect under the “one-third rule,” id., at 383-394. But we are satisfied that a rational appellate court could determine and declare that the error did not influence the jury adversely to appellant in assessing punishment, Arnold, supra, at 377, that it made no contribution to punishment assessed against appellant, id., at 390.

Therefore, while its reasons for decision are incorrect, the judgment of Fort Worth Court of Appeals is ultimately correct. Thus I would also refuse the PDR.

Cite This Page — Counsel Stack

Bluebook (online)

790 S.W.2d 661, 1990 Tex. Crim. App. LEXIS 133, 1990 WL 82814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-state-texcrimapp-1990.

Opinions

Related

Cite This Page — Counsel Stack