Purcella v. State

762 S.W.2d 696, 1988 Tex. App. LEXIS 3360, 1988 WL 144505
CourtCourt of Appeals of Texas
DecidedDecember 7, 1988
DocketNo. 04-87-00577-CR
StatusPublished

This text of 762 S.W.2d 696 (Purcella 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
Purcella v. State, 762 S.W.2d 696, 1988 Tex. App. LEXIS 3360, 1988 WL 144505 (Tex. Ct. App. 1988).

Opinions

OPINION

CHAPA, Justice.

Appellant Wayne Martin Purcella appeals a jury sentence following a conviction for the offense of burglary of a habitation with the intent to commit aggravated assault. Following a plea of guilty, the jury assessed punishment at fifteen years’ and one day confinement.

In the judgment, the trial court decreed that a deadly weapon was used in the assault. The State, however, has conceded that the judgment should be reformed to delete the affirmative finding of a deadly weapon because it was incorrectly entered.

The judgment is ordered so reformed and is affirmed.

The only issue before us is whether the erroneous charge to the jury of the laws relating to parole, as provided by TEX. CODE CRIM.PROC.ANN. art. 37.07, § 4(a), together with the argument of the prosecutor on the same subject amounted to reversible error.

During the voir dire, the records reflect the following exchange between a juror and the prosecutor:

JUROR: Isn’t it a fact that in the State of Texas after seven years you’re eligible for parole?
MR. SUTTON: No, the Board of pardons and Paroles works in a manner that it changes from time to time, as we all know, and a person has obtain so many years credit before they are eligible for parole, depending upon the facts and circumstances of the case as to how much time they must serve. There are several different guidelines but there is no arbitrary seven, no. I would ask that this — that the jury that is selected not get back there in the jury room and say, well, a person is going to be eligible for parole in a certain period of time so we want to give him a sufficient length of time to cover that period of parole, don’t even think about that, please.

In opening argument, at the punishment phase, the record reflects the following by the prosecutor:

Now, the Court, in its charge, discusses with you the Texas law on parole, and let me explain that just a little bit because the way it has to be treated is like a shell game, now you see it and now you don’t. The Court tells you that Texas has such parole system whereby if a person is sentenced to a term of confinement, his actual time served may be dependent upon several factors, and that’s his good conduct time and first one thing and another. Now this paragraph that states that says, under the law applicable in this case, if the Defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served, plus any good conduct time equals one-third of the sentence imposed or 20 years, whichever is less. Now, for an illustration, let’s assume that a person is sentenced to a term of confinement in the Texas Department of Corrections for a term of 15 years. Under the parole law, he has to get credit for one-third of that, which is five years. Okay. Now, in getting credit for five years, it’s day for day served, plus any good conduct time. So if you get two for one, then you discharge a 15 years sentence in two and a half years. If it’s three for one, it’s a year and something. If it’s five for one, it’s one year on a 15 year sentence. Now if a person is sentenced to a term of 60 years in the Texas Department of Corrections under the same figures, he’d have to get credit for one-third of 60 which is what, 20, and then it’s actual time served plus any good conduct time, so it drops off rather rapidly. Now that I have told you that, forget it, because if you get back there in the jury room and say, well, we want to assess and sentence for a sufficient [698]*698length of time that he would serve this many years, we’re going to end up doing this thing all over again, you cannot do that. Just consider the sentence as if he were going to serve it day for day, that’s what you’re going to have to do.

The court’s charge contained the following:

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-third of the sentence imposed or 20 years, whichever is less. Eligibility for parole does not guarantee that parole will be granted.
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.

TEX.CODE CRIM.PROC.ANN. art. 37.07, § 4(a) has been declared unconstitutional. The appellant was therefore relieved of the obligation of objecting at trial to that portion of the charge which contained the unconstitutional parole law instruction, and the harm analysis codified in TEX.R.APP.P. 81(b)(2) is applicable to this case. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987).

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 on contribution to the conviction or to the punishment.

We generally presume, although the presumption is rebuttable, that a jury follows the instructions given by the trial judge, in the manner presented. Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Crim.App.1983). See also, in the context of instructions to disregard. Nichols v. State, 754 S.W.2d 185 (Tex.Crim.App.1988); Rose v. State, supra at 554; Gardner v. State, 730 S.W.2d 675, 696 (Tex.Crim.App.), cert. denied, — U.S. -, 108 S.Ct. 248, 98 L.Ed.2d 206 (1987).

In McKay v. State, 707 S.W.2d 23 (Tex.Crim.App.1985) (en banc), the Texas Court of Criminal Appeals held that a prosecutor’s improper comments about the parole laws to the jury were not reversible error, even when a proper objection was made and overruled by the court. The Court stated:

Not every improper argument made during final remarks to the jury, however, requires reversal of the case. In order to constitute reversible error, the argument must be examined in light of the entire record and must be extreme or manifestly improper, violative of a mandatory statute or inject new facts harmful to the accused into the trial proceeding. Franklin v. State, 693 S.W.2d 420, 425 (Tex.Crim.App.1985) and cases cited therein.

McKay v. State, supra at 38.

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Related

Cobarrubio v. State
675 S.W.2d 749 (Court of Criminal Appeals of Texas, 1983)
Gardner v. State
730 S.W.2d 675 (Court of Criminal Appeals of Texas, 1987)
Olivarez v. State
756 S.W.2d 113 (Court of Appeals of Texas, 1988)
Nichols v. State
754 S.W.2d 185 (Court of Criminal Appeals of Texas, 1988)
Franklin v. State
693 S.W.2d 420 (Court of Criminal Appeals of Texas, 1985)
Brown v. State
692 S.W.2d 497 (Court of Criminal Appeals of Texas, 1985)
Garay v. State
755 S.W.2d 956 (Court of Appeals of Texas, 1988)
McKay v. State
707 S.W.2d 23 (Court of Criminal Appeals of Texas, 1985)
Rose v. State
752 S.W.2d 529 (Court of Criminal Appeals of Texas, 1988)

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Bluebook (online)
762 S.W.2d 696, 1988 Tex. App. LEXIS 3360, 1988 WL 144505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/purcella-v-state-texapp-1988.