Diaz v. State

769 S.W.2d 307, 1989 Tex. App. LEXIS 1354, 1989 WL 49859

• Court: Court of Appeals of Texas
• Decided: March 29, 1989
• Docket: No. 04-86-00037-CR
• Status: Published

Opinions

OPINION

Before BUTTS, BIERY and CARR, JJ.

BUTTS, Justice.

The question in this case on remand concerns TEX.CODE CRIM.PROC. ANN. art. 37.07, § 4(a) (Vernon Supp.1989), the parole law jury instruction declared unconstitutional in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). Since the statute has been determined to be unconstitutional and therefore void ab initio, an objection to the submission of the instruction is not required to consider error on appeal. The Rose decision pronounced the statute unconstitutional in two respects: denial of due process and violation of the separation of powers doctrine. The Court of Criminal Appeals dictated the standard of review which must be applied in assessing harm resulting from the error in a particular case. 752 S.W.2d at 553. That standard is found in TEX.R.APP.P. 81(b)(2):

If 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.

Appellant was convicted of murder, a first degree felony. The circumstances involved a confrontation at a bar between two members of one family (the deceased and his brother) and several members of another (including the appellant). The facts are'fully set out in Diaz v. State, 722 S.W.2d 482 (Tex.App.—San Antonio 1986, pet. granted). The evidence was undisputed that appellant shot and killed the deceased and wounded his brother. The body of the deceased was located by a fence away from the building, and the wounds were in his back. The brother testified that the deceased was running away at the time.

Some factors to be considered to determine whether the error was harmless pursuant to the mandated standard are: whether curative instructions were given to the jury, whether the facts of the case militate in favor of the sentence imposed, and whether the appellant has a criminal record. Another factor to consider, if present in the case, is possible inflammatory jury argument regarding the statute, or, on the other hand, the defense’s argument concerning parole. See Rose v. State, 752 S.W.2d at 554-55.

In the present case the appellant had no previous felony conviction and a jury charge on probation was given. Appellant, as well as others, testified to the events surrounding the crime. At the guilt/innocence phase the trial court submitted jury charges on self defense and defense of a third person. The prosecutor, in jury argument at the punishment phase, asked that the jury assess punishment at 60 years’ imprisonment. Punishment was assessed at 40 years’ imprisonment but no fine.

The range within which the jury could set punishment was imprisonment for life or for any term of not more than 99 years nor less than 5 years and a fine not to exceed $10,000.00. Appellant stated from the witness stand that he was not asking for probation even though his motion for probation had been filed and, subsequently, a jury charge on probation was submitted. The curative instructions as to parole laws given to the jury were:

It cannot accurately be predicted how the parole law and good conduct time might be applied to this Defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

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.

During jury argument the defense stated:

Now, the Court has told — and I’m telling you again — that you may take into consideration all of the facts that were shown by the evidence. You may consider the circumstances under which this killing took place. And I’ll remind you also that he’s not being tried at this time for the shooting of Jaime Martinez. You’re not to concern yourselves with that. You are not to punish him for that. He’s only being tried for the death of Eduardo Martinez. So, please don’t think that “well, there were two people involved, we’re going to double the punishment,” because that's not the way it works. We might have another trial somewhere down the line on the other one.

Please don’t be mislead (sic) also by the fact that there’s such a thing as Parole Laws here in the State of Texas. Parole means that sometimes people get out earlier than they should, but don’t figure that “well, we want him to serve, say, five years, so we’re going to give him fifteen, because he may get out in one third of the time,” because there’s no certainty that that will happen.

It’s true that after so many years a person becomes eligible for parole, but being eligible does not mean that you will get it, and the Court so explains in the Charge. So, don’t be thinking, “well, let’s triple his punishment, so that way he’ll serve one third of the time.” There’s a good chance that he might serve all of the time that you assess.

Eligibility does not mean that he’s going to get it. If I go out and buy a lottery ticket, I’d become eligible to win the lottery, it doesn’t mean that I’m going to win it. Just consider all of the evidence that was presented, bearing in mind like he put it, “Well, what else could I do. Was I supposed to let him go ahead and kill my relatives?” What else could he do? It was not a shooting of a defenseless individual. It was not a killing of a child. It was not a killing in a robbery. It was a fight, that’s what happened. It’s unfortunate that it happened, but what can I say except that I’m sorry it happened, and to please consider all of the facts and circumstances.

The prosecution responded, in part:

MS. CAVAZOS: Your job is only half done. You have decided, and rightly so, that this man committed murder on May 21st, 1985 (sic), and he did. And he knows that. And that’s why he doesn’t asks (sic) you for probation. He knows he did wrong. We all know he did wrong.

* * * * * *

And he tells you not to consider, you know, and multiply the numbers and all this other stuff. Well, I ask you not to do that either. I ask you to give him what he deserves.

* * * * * *

When we consider the cautionary instructions, which we must presume the jury followed, the admonition by defense counsel to consider only the facts of the case and not be misled by the parole laws and further cautionary remarks by both the defense and prosecution regarding the parole laws, the overwhelming proof of the guilt of appellant, and the possible range of punishment, with fewer years of imprisonment assessed than asked for by the prosecution, we conclude that the statutory parole law instruction did not affect appellant’s sentence. We therefore find beyond a reasonable doubt that the error in the trial court’s instruction to the jury on the parole law did not contribute to the punishment in this case.

The judgment is affirmed.