Flores v. State

764 S.W.2d 37, 1989 Tex. App. LEXIS 229, 1989 WL 10503

• Court: Court of Appeals of Texas
• Decided: January 25, 1989
• Docket: No. 04-85-00530-CR
• Status: Published

Opinions

OPINION

CHAPA, Justice.

This case involves the application of article 37.07, § 4, Parole Law instruction. Because the Texas Court of Criminal Appeals has declared article 37.07, § 4 unconstitutional in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988), they have directed this Court to conduct a harmless error analysis under the guidelines of TEX.R. APP.P. 81(b)(2). 761 S.W.2d 7. TEX.R.APP.P. 81(b)(2) provides:

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 the punishment.

The evidence presented to the jury revealed that:

1) appellant robbed a convenience store at gunpoint;

2) other than using a gun, appellant did not demonstrate any other form of violence;

3) when the description was issued, appellant was apprehended leaving his home apparently without any violence;

4) appellant was immediately identified by the store manager upon being returned to the store;

5) although several police officers testified appellant’s reputation is bad, the unre-futed evidence was that appellant has never been convicted of any crime; and

6) appellant’s employer also testified he was a good employee and would rehire him if he were put on probation.

The record further reflected that over appellant’s objections, the trial court’s charge on punishment included the statutory parole law instructions without any added precautions.

The punishment for the crime for which appellant was convicted ranges from confinement for not less than 5 years nor more than 99 years, plus a fine of not more than $10,000. The jury assessed punishment at confinement of 30 years.

In Rose v. State, supra, as a precaution the trial court included an additional curative final instruction to the statutory charge which more specifically instructed the jury that the amount of the sentence imposed that would be served by the defendant was within the exclusive jurisdiction of the Board of Paroles and the Governor. The Court of Criminal Appeals found this additional precautionary instruction “particularly significant.” Rose, id. at 554. In finding that the parole law instruction beyond a reasonable doubt made no contribution to the punishment, the Texas Court of Criminal Appeals stated:

The presumption that the jury followed the trial judge’s final instruction to totally disregard parole, coupled with the particularly heinous facts of the case and appellant’s prior criminal record, lead us to the conclusion that the statutory parole instruction did not affect appellant’s sentence.

Rose, supra at 554.

The case before us is distinguishable from Rose. The court’s charge here does not contain the additional precautionary final curative instruction to disregard parole, the facts in this case cannot be considered heinous, and the appellant has no prior record in spite of what the police consider his reputation to be. We cannot say that beyond a reasonable doubt the unconstitutional parole charge made no contribution to the 30 year sentence.

The judgment is reversed and the cause is remanded. Ex parte Klasing, 738 S.W. 2d 648 (Tex.Crim.App.1987) (en banc).