Grismore v. State

641 S.W.2d 593, 1982 Tex. App. LEXIS 4917

• Court: Court of Appeals of Texas
• Decided: August 4, 1982
• Docket: 08-81-00079-CR
• Status: Published

Opinions

OPINION

PRESLAR, Chief Justice.

This is an appeal from a conviction for aggravated robbery. The jury assessed punishment at twenty years confinement. We reverse.

Appellant had previously been convicted of third-degree felony theft and was placed on ten years probation. A motion to revoke probation, based on this aggravated robbery, was heard by the court contemporaneously with the trial on the merits of the robbery. Probation was revoked and Appellant was sentenced to ten years confinement. The judgment of revocation has been affirmed by this Court in Grismore v. State, No. 08-81-00078-CR, August, 1982.

In Ground of Error No. One, Appellant contends that extraneous offenses were improperly put before the jury. During a cross-examination question as to the reason for showing the victim a third photograph of the suspect Appellant, Officer Harrison gave an unresponsive answer that, at that point, the complainant was the “first victim.”

In questioning the officer as to the similarity between the Appellant and another subject whose photograph was selected for display to the complainant, counsel received an answer:

Yes, sir, in my opinion. This particular case, we have a wide range. It is varied from the descriptions we were getting.

The officer’s two answers apparently were referring to multiple robberies in which Appellant was a suspect. These extraneous offenses were the subject of a motion in limine granted prior to trial.

Appellant did not object to these responses. Both times he requested the jury be removed, and moved for a mistrial. The improper admission of extraneous offenses can be cured by objection and jury instruction in all but extreme cases. Evans v. State, 542 S.W.2d 139 (Tex.Cr.App.1976); Lachapelle v. State, 579 S.W.2d 1 (Tex.Cr.App.1979).

The minimal reference here is not so extreme that it would not have been susceptible to a curative instruction. By proceeding immediately to a motion for mistrial, Appellant waived all the relief to which he was entitled. Ground of Error No. One is overruled.

In Ground of Error No. Two, Appellant contends that the State’s use of perjured testimony deprived him of a fair trial.

At a pretrial identification hearing, Officer Harrison testified that the only photographs shown the complainant were State’s Pretrial Exhibits Four through Thirteen. At trial, on cross-examination, Harrison testified that an additional photograph of Appellant had been displayed but had not been identified by the complainant. The additional photograph was introduced as Defendant’s Exhibit No. Twelve.

The contradiction in testimony does not establish perjury. Cook v. State, 423 S.W.2d 313 (Tex.Cr.App.1968).

The additional photograph was displayed to the jury, and the complainant’s inability to identify the Appellant in that photograph was exposed. No intentional misconduct is demonstrated in such a situation where the witness provides evidence favorable to the defense. Ground of Error No. Two is overruled.

In Ground of Error No. Three, Appellant contends that he was not provided with the exculpatory evidence of the complainant’s failure to identify the photograph referred to in Ground of Error No. Two.

The exculpatory evidence was disclosed at trial before the jury. The jury received the photograph and was advised of the failure to identify.

There is no showing that the timing of the disclosure prevented the Appellant from fully developing the exculpatory benefit of the evidence. From the record, it would appear that the Appellant received the full value of this information. No injury is shown. James v. State, 563 S.W.2d 599 (Tex.Cr.App.1978). Ground of Error No. Three is overruled.

In Ground of Error No. Four, Appellant asserts jury misconduct in the form of discussion of parole law and the possible effect of a revocation of Appellant’s probation in another cause.

All of the testimony presented by the jurors at the hearing on Appellant’s Motion for New Trial indicated that the discussion of Appellant’s probation prospects occurred after the twenty-year sentence had been reached and did not influence that decision.

We conclude, however, that the discussion of parole law did deprive Appellant of a fair trial. The Court of Criminal Appeals has recently ruled that reversible jury misconduct occurs if the jury discusses parole law and the discussion causes any single juror to vote for a harsher sentence than his earlier inclination. Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App., 1982).

Any discussion of parole law constitutes jury misconduct. Here, Juror Peddy’s initial vote was for a five-year sentence. The parole comments occurred before the second vote and made it “easier” for Peddy to increase his sentence vote to ten years, and ultimately twenty years.

In Munroe, the parole discussion, according to juror testimony, played an “important role” and “allowed” one juror to increase his recommendation to the ultimate ten-year sentence, despite an initial desire to grant probation.

Under the facts and ruling in Munroe, we find that the parole discussion in this cause did have an impermissible effect upon the jury’s assessment of punishment. Accordingly, Ground of Error No. Four is sustained.

The judgment is reversed and the cause is hereby remanded for a new bifurcated trial.