Coleman v. State

735 S.W.2d 475, 1987 Tex. App. LEXIS 6191
CourtCourt of Appeals of Texas
DecidedJanuary 8, 1987
DocketNo. 01-85-0976-CR
StatusPublished
Cited by4 cases

This text of 735 S.W.2d 475 (Coleman 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.

Bluebook
Coleman v. State, 735 S.W.2d 475, 1987 Tex. App. LEXIS 6191 (Tex. Ct. App. 1987).

Opinion

OPINION

JACK SMITH, Justice.

This is an appeal from a conviction for two counts of aggravated robbery. The appellant entered a plea of guilty to both counts before the jury, which assessed his punishment at five years on each count.

The complainants, Jesse and Lisa Valdez, were robbed at gunpoint by the appellant and three other men. Jesse Valdez let the appellant into his home because the appellant had been a visitor in his home on two prior occasions. After the appellant and his three companions gained entry, they tied up the complainants at gunpoint and took money and jewelry.

Appellant was charged in two separate counts in a single indictment with aggravated robbery of Jesse Valdez and Lisa Valdez. Before entering his plea of guilty, appellant made an oral motion requesting the State to elect between the two counts of aggravated robbery. The trial court denied the motion, and the State proceeded on both counts.

In his first four points of error, appellant challenges the constitutionality of the trial court’s jury instruction regarding parole which was given in the language of Tex. Code Crim.P.Ann. art. 37.07, sec. 4(a)-(d) (Vernon 1981). In point of error one, appellant argues that Tex.Code Crim.P.Ann. art. 37.07, sec. 4 (Vernon 1981) violates article II, section 1 of the Texas Constitution in that it is a legislative encroachment upon judicial powers. In point of error two, appellant contends that the statute constitutes a legislative encroachment on the executive branch’s clemency powers embodied in the parole system, which violates article IV, section 11 of the Texas Constitution. Point of error three contends that the statute was unconstitutional because it invites the jury to speculate on matters outside its tasks of deciding proper punishment. Point of error four contends that the instruction stated in the language of article 37.07, section 4(a)-(d) was unconstitutional because it was confusing and vague.

[477]*477The charge to the jury was given in the exact statutory language contained in article 37.07, except that the last sentence, which provides, “[y]ou are not to consider the manner in which the parole law may be applied to this particular Defendant,” was omitted at the request of the appellant.

At trial, appellant objected to the portion of the jury charge that contained the language of article 37.07, section 4(a)—(d), and asked that it be deleted. That objection and request is as follows:

[DEFENSE COUNSEL]: ... Your Hon- or, we would request and move that this entire section previously read be deleted from the charge due to the fact that it is vague, it is misleading, and there is absolutely no evidence in the record to support the submission of this portion of the charge to the jury. (Emphasis added.) THE COURT: Does the State want to respond?
[PROSECUTOE]: Yes, Your Honor. In response, we would just state this is the law that has been enacted by our legislature and we feel it is not vague or misleading. If anything, it bends over backwards to accommodate the Defendant in telling these folks they can’t consider what the parole laws are, and we just ask the Court to follow the legislature’s rulings and the law passed by the legislature.
THE COURT: I have grave doubt about the constitutionality about this section. And I certainly believe, Mr. Zavoda, your argument has merit. However, I have been provided this law by the legislature, and to my knowledge it has not been tested and I am reluctant to put you in a position to test this law, but I think it must be tested and I am going to deny your request; and I assume we will find out later if your argument holds water. [DEFENSE COUNSEL]: Thank you, Your Honor.

Appellant did not object to the constitutionality of the statute at trial, in the manner raised before this Court. As a general rule, the point of error presented on appeal must be the same as the objection raised at trial; otherwise it is waived. Simpkins v. State, 590 S.W.2d 129, 135 (Tex.Crim.App.1979).

Appellant raises the constitutionality of the statute for the first time on appeal. The Texas courts of appeals have been divided as to whether the constitutionality of a statute may be raised for the first time on appeal. Chaires v. State, 704 S.W.2d 397, 398-399 (Tex.App.—Corpus Christi 1985, no pet.). This Court has held that the constitutionality of a statute may not be raised on appeal unless the issue was first raised at trial. Casares v. State, 712 S.W.2d 818, 821 (TexApp.—Houston [1st Dist.] 1986, no pet.); citing James v. State, 635 S.W.2d 653, 655-656 (Tex.App.—Fort Worth 1982, no pet.); Chaires v. State, 704 S.W.2d 397, 398-399 (Tex.App.—Corpus Christi 1985, no pet.). But, in Moore v. State, 672 S.W.2d 242, 243 (Tex.App.— Houston [14th Dist.] 1983, no pet.), the court held that a constitutional challenge may be reviewed for the first time on appeal. We note that in Moore, the court cited no specific precedential authority to support its position.

We adhere to our decision in Car sares and hold that the constitutionality of a statute may not be raised on appeal unless the specific issue raised on appeal was first raised at trial. Appellant’s first three points of error are overruled.

Appellant’s fourth point of error claims that the trial court’s instruction was unconstitutional because it was confusing and vague. On appeal, he alleges that the instruction was confusing and vague because there was an incorrect cross reference to Tex.Code Crim.P.Ann. art. 42.12 (Vernon Supp.1986). The State contends that the appellant failed to preserve error because appellant did not argue at trial that there was an incorrect cross reference to article 42.12. We agree.

Appellant’s objection at trial that the instruction was vague and misleading does not comport with the contention he makes in his fourth point of error. Furthermore, the objection was a general objection, which does not state why the instruction was vague and misleading; thus, [478]*478it did not apprise the court of anything. Any objection must be specific enough to inform the court of the objector’s complaint; otherwise, a court cannot make an intelligent ruling. Goodrich v. State, 632 S.W.2d 349 (Tex.Crim.App.1982). When an objection is made, it must not only identify what is objected to, but must set forth grounds for the objections. Cisneros v. State, 692 S.W.2d 78, 83 (Tex.Crim.App.1985).

The appellant’s fourth point of error is overruled.

In his final point of error, appellant contends that the conviction in count two of the indictment is void because the trial court was without authority to enter two convictions for offenses arising out of a single transaction alleged in a single indictment. He argues that since aggravated robbery is not a “property offense,” under the holding of Drake v.

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Related

Matter of Marriage of Moore
890 S.W.2d 821 (Court of Appeals of Texas, 1994)
Coleman v. State
788 S.W.2d 369 (Court of Criminal Appeals of Texas, 1990)
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27 M.J. 323 (United States Court of Military Appeals, 1989)
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26 M.J. 635 (U S Air Force Court of Military Review, 1988)

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Bluebook (online)
735 S.W.2d 475, 1987 Tex. App. LEXIS 6191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-state-texapp-1987.