Rolling v. State

Court of Appeals of Texas

Rolling v. State

768 S.W.2d 834, 1989 Tex. App. LEXIS 1282, 1989 WL 49902

CourtCourt of Appeals of Texas

DecidedMarch 13, 1989

Docket05-85-01064-Cr

StatusPublished

Cited by4 cases

This text of 768 S.W.2d 834 (Rolling 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.

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Rolling v. State, 768 S.W.2d 834, 1989 Tex. App. LEXIS 1282, 1989 WL 49902 (Tex. Ct. App. 1989).

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ON REMAND FROM THE COURT OF CRIMINAL APPEALS

McCLUNG, Justice.

On this remand, the sole issue to be determined is whether the trial court’s submission of the unconstitutional good time and parole instructions to the jury contributed to the punishment the jury assessed the appellant. We are unable to determine that the submission of the instructions was harmless beyond a reasonable doubt. We reverse the trial court’s judgment and remand the case to the trial court for further proceedings.

Appellant was originally convicted of murder and assessed ninety-nine years and a fine of $2500. On his appeal to this Court, he contended that the trial court erred in submitting good time and parole instructions to the jury on the grounds that the charge was predicated upon an unconstitutional statute and was a violation of due process. In an unpublished opinion, we rejected his challenge to the constitutionality of article 37.07, section 4, of the Texas Code of Criminal procedure. Rolling v. State, No. 05-85-01064-CR (Tex.App.—Dallas, Dec. 2, 1986).

[835]*835In his petition for discretionary review, appellant asserted, as grounds of review, the unconstitutionality of article 37.-07, section 4 of the Texas Code of Criminal Procedure. The Court of Criminal Appeals granted his petition on the constitutional issue and agreed with his contention that the statute in question is unconstitutional. The court based this conclusion on its prior decision in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). That court remanded this cause to this Court to conduct a harmless error analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. See Rose, 752 S.W.2d at 554; Haynie v. State, 751 S.W.2d 878, 879 (Tex.Crim.App.1988). Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides the general harmless error test to be applied by appellate courts in criminal cases and states:

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.

TEX.R.APP.P. 81(b)(2). This standard requires a review of the entire record.

Appellant was convicted of murder. The charge was not enhanced by a prior conviction, therefore the range of punishment was a minimum of five years to a maximum of ninety-nine years or life with the possibility of a fine up to $10,000. The jury assessed ninety-nine years and a fine of $2500.00.

The voir dire of the prospective jurors was not transcribed. The evidence during the guilt/innocence phase of the trial reflected that appellant and another male were at a friend’s apartment drinking wine, smoking marijuana, and watching TV. The victim was a door to door salesman of coupons for portrait or family photographs. At around four-thirty to five o’clock on this Sunday afternoon, he knocked on the door of the apartment occupied by appellant and his friend. The owner was not at home at the time. After the victim left, appellant retrieved a shovel handle from under the living room couch, slipped up behind the victim and struck him on the head. While he was on the ground, appellant and his friend took his money from his pockets and returned to the apartment, leaving the victim lying on the ground. The police and ambulance arrived shortly and the victim was transported to the hospital. He died as a result of his injuries a few hours later. The police received a “crime stoppers” tip which resulted in appellant’s arrest. Appellant gave a voluntary statement wherein he admitted striking the victim one time with the shovel handle and taking his money.

The State offered no evidence during the punishment phase of the trial. The appellant presented several family members to emphasize appellant’s youthful nineteen years, the fact that appellant was the father of a seven month old illegitimate child, a tenth grade drop-out, and came from a broken home. These same witness testified extensively about the appellant’s drinking, drug use, poor employment history and behavior problems that had started at a very early age and existed at the time of this incident. The appellant also testified on his own behalf and stated he wanted to clear up the untruths in his statement. Appellant said he did not hit the man one time, but he did hit him on the head at least three times; that he did not actually take the victim’s money, but that his friend and accomplice did take it out of the victim’s pocket, and then shared it with appellant; that he felt bad about it because he really didn’t intend to kill the victim but to just get his money. The trial court charged the jury on probation in addition to the statutory good time and parole charges mandated by article 37.07 of the Texas Code of Criminal Procedure. No additional mitigating charge on good time and parole was requested or submitted to the jury. See Rose, 752 S.W.2d at 554. No objection to the charge was made.

During jury argument at the close of the punishment phase, the State told the jury:

You know what the judge has instructed you in reference to parole. That this defendant, if sentenced to the penitentiary, will have to serve at least one third of [836]*836any numerical number of years that you give him, or twenty years, whichever is most, before he is eligible for parole. Consider that when you assess punishment in this case (emphasis added).

The State made this erroneous summary of the parole law in their opening argument and attributed it to the court’s charge, thus, giving this erroneous summary credibility it should not have had. No objection was made to this argument. No answer or response to correct this comment was made by defense counsel in his final argument. No further specific mention of the parole and good time credit instructions was made by the State. The State’s argument concentrated on the facts of the offense itself, and repeatedly placed emphasis on the severity while urging the jury to give a life sentence and the maximum fine. During deliberations, the jury sent a note which stated, “Det [sic] Cogden stated that the defendant was in jail for another offense sometime during Feb. Mar. etc, under another name. Can we have this part of the testimony restated.” The court responded with the customary response that if the jury was in disagreement as to testimony, that they should set out the specific portion of testimony on which they disagreed. The record is silent as to any further action on this subject. The jury assessed a sentence of the maximum of ninety-nine years and a fine of $2500.00.

The attack which resulted in the death of the victim was without provocation, and done in a violent, brutal manner which would militate to high punishment. It must be noted, however, that no mitigating instruction was included in the court’s charge, and no evidence of any prior record was offered. Therefore, this case lacks two of the three important factors found in Rose, 752 S.W.2d at 554. Additionally, we have the appellant’s young age of nineteen years. We have the State’s bold, but erroneous, statement of the parole law which set out the theory of the State’s case on punishment of how much time the appellant would be required to serve. And finally, the State specifically told the jury to

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ON REMAND FROM THE COURT OF CRIMINAL APPEALS

McCLUNG, Justice.

On this remand, the sole issue to be determined is whether the trial court’s submission of the unconstitutional good time and parole instructions to the jury contributed to the punishment the jury assessed the appellant. We are unable to determine that the submission of the instructions was harmless beyond a reasonable doubt. We reverse the trial court’s judgment and remand the case to the trial court for further proceedings.

Appellant was originally convicted of murder and assessed ninety-nine years and a fine of $2500. On his appeal to this Court, he contended that the trial court erred in submitting good time and parole instructions to the jury on the grounds that the charge was predicated upon an unconstitutional statute and was a violation of due process. In an unpublished opinion, we rejected his challenge to the constitutionality of article 37.07, section 4, of the Texas Code of Criminal procedure. Rolling v. State, No. 05-85-01064-CR (Tex.App.—Dallas, Dec. 2, 1986).

[835]*835In his petition for discretionary review, appellant asserted, as grounds of review, the unconstitutionality of article 37.-07, section 4 of the Texas Code of Criminal Procedure. The Court of Criminal Appeals granted his petition on the constitutional issue and agreed with his contention that the statute in question is unconstitutional. The court based this conclusion on its prior decision in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). That court remanded this cause to this Court to conduct a harmless error analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. See Rose, 752 S.W.2d at 554; Haynie v. State, 751 S.W.2d 878, 879 (Tex.Crim.App.1988). Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides the general harmless error test to be applied by appellate courts in criminal cases and states:

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.

TEX.R.APP.P. 81(b)(2). This standard requires a review of the entire record.

Appellant was convicted of murder. The charge was not enhanced by a prior conviction, therefore the range of punishment was a minimum of five years to a maximum of ninety-nine years or life with the possibility of a fine up to $10,000. The jury assessed ninety-nine years and a fine of $2500.00.

The voir dire of the prospective jurors was not transcribed. The evidence during the guilt/innocence phase of the trial reflected that appellant and another male were at a friend’s apartment drinking wine, smoking marijuana, and watching TV. The victim was a door to door salesman of coupons for portrait or family photographs. At around four-thirty to five o’clock on this Sunday afternoon, he knocked on the door of the apartment occupied by appellant and his friend. The owner was not at home at the time. After the victim left, appellant retrieved a shovel handle from under the living room couch, slipped up behind the victim and struck him on the head. While he was on the ground, appellant and his friend took his money from his pockets and returned to the apartment, leaving the victim lying on the ground. The police and ambulance arrived shortly and the victim was transported to the hospital. He died as a result of his injuries a few hours later. The police received a “crime stoppers” tip which resulted in appellant’s arrest. Appellant gave a voluntary statement wherein he admitted striking the victim one time with the shovel handle and taking his money.

The State offered no evidence during the punishment phase of the trial. The appellant presented several family members to emphasize appellant’s youthful nineteen years, the fact that appellant was the father of a seven month old illegitimate child, a tenth grade drop-out, and came from a broken home. These same witness testified extensively about the appellant’s drinking, drug use, poor employment history and behavior problems that had started at a very early age and existed at the time of this incident. The appellant also testified on his own behalf and stated he wanted to clear up the untruths in his statement. Appellant said he did not hit the man one time, but he did hit him on the head at least three times; that he did not actually take the victim’s money, but that his friend and accomplice did take it out of the victim’s pocket, and then shared it with appellant; that he felt bad about it because he really didn’t intend to kill the victim but to just get his money. The trial court charged the jury on probation in addition to the statutory good time and parole charges mandated by article 37.07 of the Texas Code of Criminal Procedure. No additional mitigating charge on good time and parole was requested or submitted to the jury. See Rose, 752 S.W.2d at 554. No objection to the charge was made.

During jury argument at the close of the punishment phase, the State told the jury:

You know what the judge has instructed you in reference to parole. That this defendant, if sentenced to the penitentiary, will have to serve at least one third of [836]*836any numerical number of years that you give him, or twenty years, whichever is most, before he is eligible for parole. Consider that when you assess punishment in this case (emphasis added).

The State made this erroneous summary of the parole law in their opening argument and attributed it to the court’s charge, thus, giving this erroneous summary credibility it should not have had. No objection was made to this argument. No answer or response to correct this comment was made by defense counsel in his final argument. No further specific mention of the parole and good time credit instructions was made by the State. The State’s argument concentrated on the facts of the offense itself, and repeatedly placed emphasis on the severity while urging the jury to give a life sentence and the maximum fine. During deliberations, the jury sent a note which stated, “Det [sic] Cogden stated that the defendant was in jail for another offense sometime during Feb. Mar. etc, under another name. Can we have this part of the testimony restated.” The court responded with the customary response that if the jury was in disagreement as to testimony, that they should set out the specific portion of testimony on which they disagreed. The record is silent as to any further action on this subject. The jury assessed a sentence of the maximum of ninety-nine years and a fine of $2500.00.

The attack which resulted in the death of the victim was without provocation, and done in a violent, brutal manner which would militate to high punishment. It must be noted, however, that no mitigating instruction was included in the court’s charge, and no evidence of any prior record was offered. Therefore, this case lacks two of the three important factors found in Rose, 752 S.W.2d at 554. Additionally, we have the appellant’s young age of nineteen years. We have the State’s bold, but erroneous, statement of the parole law which set out the theory of the State’s case on punishment of how much time the appellant would be required to serve. And finally, the State specifically told the jury to "consider that when you assess punishment,” a manifestly improper argument that is directly in conflict with the court’s charge which instructed the jury they were not to consider parole and good time credit. This was the trial court’s last word on the subject. The State’s argument constituted a clear invitation to the jury to disregard the court’s instructions and provide the jury a reason or rationale to give the maximum sentence which the State was vigorously demanding. See Everett v. State, 707 S.W.2d 638 (Tex.Crim.App.1986). We conclude that the error in submitting the statutory mandated, unconstitutional charge did contribute to the punishment assessed in this case.

We reverse and remand the cause for a new trial pursuant to article 44.29 of the Texas Code of Criminal Procedure. See Ex parte Klasing, 738 S.W.2d 648, 650-51 (Tex.Crim.App.1987); Kingsley v. State, 744 S.W.2d 191, 196 (Tex.App.—Dallas 1987, no pet.).

KINKEADE, J., dissents.

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768 S.W.2d 834, 1989 Tex. App. LEXIS 1282, 1989 WL 49902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rolling-v-state-texapp-1989.

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