Rose v. State

724 S.W.2d 832, 1986 Tex. App. LEXIS 9442

Opinions

ON MOTION FOR REHEARING

STEWART, Justice.

Appellant was convicted of aggravated robbery, and the jury assessed punishment at confinement for life in the Texas Department of Corrections. He contends in two points of error that the trial court committed reversible error by: (1) admitting evidence of extraneous offenses occurring at the time of appellant’s arrest; and (2) charging the jury on the law of parole pursuant to Code of Criminal Procedure article 37.07, section 4(a), because this instruction violates the separation of powers doctrine and the due process clauses of the State and Federal Constitutions. We disagree with both contentions; accordingly, we affirm.

The sufficiency of the evidence is not disputed. It shows that on the afternoon of October 17, 1984, appellant and two other men entered complainant’s textile company in Dallas, robbed him at gunpoint, and left him tied up on the floor. Appellant took complainant’s pistol and approximately $160 in cash. Shortly before noon, eight days later, Officer Reno was at an apartment complex in Ennis when he saw a goldish-yellow Pontiac Sunbird that the police were seeking. He observed appellant and his companion, George Fitch, Jr., get out of the car and walk toward the apart ments. He approached the two men and asked them to show their identification. As Reno began his questioning, Officer Shoquist arrived and discovered that appellant had a concealed handgun later identified as the pistol stolen in the Dallas robbery. Reno then drew his revolver on Fitch, removed a pistol Fitch was carrying in the waistband of his trousers, and placed Fitch on the ground without handcuffs. Reno then turned to aid Shoquist who was struggling with appellant for the latter’s pistol. As appellant and the two officers struggled, Reno lost possession of Fitch’s pistol, and Fitch recovered it. Fitch shot and wounded Reno. During the ensuing confusion, appellant escaped in a squad car; he was caught after a high speed chase, which ended when appellant crashed into a concrete median marker.

I. EXTRANEOUS OFFENSES

Appellant’s first point of error complains of the trial court’s admission of evidence that he assaulted the police officers at the time of his arrest. He contends that these extraneous offenses are irrelevant to any material issue in the case at bar and also that the inflammatory and prejudicial potential of this evidence clearly outweighs any relevancy value that the evidence may have had. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). We disagree. The State is entitled to prove the circumstances surrounding a defendant’s arrest, unless such evidence is “inherently prejudicial and has no relevance to any issue in the case.” Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). The issue on appeal is whether the trial judge clearly abused his discretion in admitting the evidence. Hernandez v. State, 484 S.W.2d 754 (Tex.Crim.App.1972).

Appellant’s possession of the stolen pistol at the time of his arrest connects him to the aggravated robbery under prosecution. In addition, evidence of appellant’s escape from custody and flight to avoid arrest is admissible to prove his guilt of the offense charged. Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App.1982). We conclude that appellant’s assault on the police officers was part and parcel of appellant’s flight. Consequently, we hold that the trial court did not abuse its discretion by admitting into evidence proof that appellant assaulted two police officers. We overrule appellant’s first ground of error.

II. CONSTITUTIONALITY OF PAROLE LAW CHARGE

Having overruled appellant’s first point of error, we must address the constitutional issue he raises. Appellant contends in his second point of error that Texas Code of Criminal Procedure article 37.07, section 4(a), requiring special jury instructions explaining state parole laws, is unconstitutional because it violates the separation of powers doctrine and the due process clauses of the United States and Texas Constitutions. Appellant also urges that the instructions required by this statute are in irreconcilable conflict with one another.

Appellant concedes that he failed to object to the trial court’s parole law and good conduct time instructions; consequently, he necessarily contends that giving these instructions to the jury at the punishment phase constitutes fundamental error. Fundamental error in the court’s charge is error so egregiously harmful that it deprives defendant of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (On State’s Motion for Rehearing). Because a contention of fundamental error incorporates a defendant’s due process rights as guaranteed by article I, section 19, of the Texas Constitution, article 1.04 of the Texas Code of Criminal Procedure, and the Fourteenth Amendment to the United States Constitution, appellant’s fundamental error and due process arguments will be treated together.

With respect to the separation of powers argument, it is clear that this statute and these instructions potentially offend only the governmental powers of the State of Texas. Therefore, we overrule appellant’s contention that the instructions violate the separation of powers doctrine of the United States Constitution.

At the 1985 session of the Texas Legislature, article 37.07, section 4, was enacted, to become effective on September 1, 1985. This provision requires the trial court to submit certain instructions regarding good conduct time and parole eligibility to the jury at the punishment phase of trial. The instructions included in the charge to the jury at punishment in this case read as follows:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

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 equals one-third of the sentence imposed or 20 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than six years, he must serve at least two years before he is eligible for parole. 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) (Vernon Supp.1986). Appellant contends that these instructions are unconstitutional because (1) they violate the separation of powers doctrine by (a) authorizing the jury to interfere with the clemency powers of the executive branch of government and (b) authorizing the jury to review the statutory range of punishment and, acting legislatively, to adjust the range in its discretion; and (2) they violate the due process clause because (a) they deny him a fair and impartial trial by jury and (b) they deny him due process of law.

In determining the constitutionality of a statute, we begin with the presumption that the statute is constitutional. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). Courts should seek an interpretation that supports the constitutionality of legislation. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980). Before a court can set aside a statute, its validity must clearly be unsupported by a reasonable intendment or al lowable presumption. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). Courts should not assume that the legislature would intend an unreasonable result if the statute is capable of a construction that would prevent such a result. Wade v. State, 572 S.W.2d 533, 535 (Tex.Crim.App.1978). Courts will not declare an act unconstitutional unless it is clearly made to appear in its enactment that the legislature has exceeded its powers. Lyle v. State, 80 Tex.Cr. 606, 193 S.W. 680 (1917).

With these principles in mind, we address the separation of powers issue under the Texas Constitution. Article II, section 1, of the Texas Constitution provides for the separation of governmental powers among the three distinct departments — the executive, judicial and legislative. It fur ther provides that no branch is to exercise any power properly delegated to another branch. Ex parte Giles, 502 S.W.2d 774, 780 (Tex.Crim.App.1973). Appellant relies on article IV, section 11, of the Texas Constitution to support his position that parole is a component of the clemency powers vested in the executive branch of government and, therefore, that these instructions constitute an usurpation by the judiciary, acting through the jury, of that executive power. We disagree. The first paragraph of that section gives the legislature the power to enact parole laws. Thus the rules governing parole are within the control of the legislature. If the legislature had determined that the parole laws were too lax, it had full power to restructure the eligibility requirements. In fact, it could eliminate parole entirely without infringing upon the executive power. With such broad power, the legislature had no reason to resort to a subterfuge in the form of jury instructions to postpone an inmate’s parole.

Moreover, the parole laws themselves were not the legislative concern; rather, the legislature sought to address and remedy the problem of jury discussion of the parole laws. The legislative history to article 37.07, section 4(a), provides:

Background information

There has been an outcry from public citizens serving as jurors that the sentences that have been handed down have differentiated greatly from the sentences actually served. Jurors have indicated in some instances that they were recommending even longer sentences in order to compensate for the time which would be knocked off the sentence by the combination of good time credit and eligibility for parole.

Problem(s) that the bill addresses:

Public citizens serving as jurors from across the State have indicated that they need to be informed that the defendant may, but will not necessarily, be incarcerated for the full length of the sentence imposed; and the guidelines that are used to reduce the sentences through parole and good time credit.

HOUSE COMM. ON JURISPRUDENCE, BILL ANALYSIS, Tex.S.B. 37, 69th Leg. (1985). The instructions mandated by article 37.07, section 4(a), address this problem. Under article IV, section 11, of the Texas Constitution, the legislature has the authority to enact such a statute.

Appellant contends that the instruction enables and encourages the jury to apply the parole law in assessing punishment. It has long been held that jury application of the parole laws when assessing a defendant’s punishment is a violation of the separation of powers doctrine, because the application of the parole law was left exclusively to the executive branch. Scaling v. State, 499 S.W.2d 318 (Tex.Crim.App.1973); Meyers v. State, 418 S.W.2d 676 (Tex.Crim.App.1967); Moore v. State, 171 Tex.Cr.R. 182, 346 S.W.2d 349 (1961). Appellant complains that giving the jury the precise parole formula theoretically provides them the information necessary to calculate and assess a sentence that thwarts the effect of the parole laws. However, in the final analysis, we must read the statute as written. Article 37.07, section 4(a), nowhere permits or encourages juries to apply parole laws in determining punishment. There is no legislative history or other evidence that would justify the conclusion that the legislature did not mean exactly what it said by this statute; indeed the available legislative history mandates a contrary conclusion. This statute must be construed according to the plain meaning of its text. Joslin v. State, 722 S.W.2d 725 (Tex.App.—Dallas 1986) (issued of even date with this opinion).

These instructions explicitly order the jury not to consider the parole law and good conduct time in assessing punishment for the individual defendant on trial. Appellate courts must presume that the jury follows the trial court instructions. Ainsworth v. State, 517 S.W.2d 274, 277 (Tex.Crim.App.1975). Chief Justice Rehnquist of the United States Supreme Court has stated, “The rule—indeed, the premise upon which the system of jury trials func tions under, the American judicial system— is that juries can be trusted to follow the trial court’s instruction.” Parker v. Randolph, 442 U.S. 62, 75, n. 7, 99 S.Ct. 2132, 2140, n. 7, 60 L.Ed.2d 713 (1979). The Fort Worth Court of Appeals, addressing the validity of this same parole instruction, has said:

To conclude that jurors will fail to comprehend the court’s explanation that eligibility for parole does not guarantee parole and that no accurate prediction can be made as to how good conduct time or parole may be applied to a particular defendant is an assumption we are unwilling to make. Further, to conclude that jurors are likely to disregard the court’s instruction not to consider the award or forfeiture of good conduct time nor how “the parole law may be applied to this particular defendant,” would, in our opinion, be an indictment against the integrity of individual jurors and the jury system itself. We refuse to become a party to any such indictment.

Patton v. State, 717 S.W.2d 772 (Tex.App.—Fort Worth, 1986) (emphasis original). We approve both observations.

Appellant has not alleged that the jury discussed, much less applied, the parole laws here. Even if he did, it would be the jury’s misconduct in failing to obey the instruction, not article 37.07, section 4(a), that would form the basis of such a complaint. Although the violation of a statute may produce an unconstitutional result, that result does not render the statute itself unconstitutional; rather, the constitutionality of the statute and actions taken thereunder must be considered separately. Duke Power Co. v. Greenwood County, 91 F.2d 665, 672 (4th Cir.1937).

In addition, appellant contends that the instructions enable the judicial branch to encroach upon the legislative as well as the executive branch by authorizing the jury to adjust the statutory range of punishment. Because the statutory range of punishment for any particular crime is set out explicitly, a sentence greater or less than the statutory range would be readily recognized by the court as error and no violation of the separation of powers doctrine would occur. Consequently, we assume appellant is contending that a jury, by applying the parole law, eliminates the lower range of punishment — e.g., where the statutory range is ten years to life, the jury adjusts the range to thirty years to life. We are not persuaded. Whether jurors will secretly use the parole law formula in assessing punishment is a matter of pure conjecture. Only if the necessary effect of this instruction is unconstitutional should we rule it unconstitutional. The mere possibility of jury misconduct stemming from an unconstitutional use of the information provided in the charge is not sufficient to render the statute itself unconstitutional. Statutes should be upheld unless clearly unconstitutional, and this Court cannot indulge in conjecture to determine otherwise. See Judkins v. Robinson, 109 Tex. 6, 160 S.W. 955 (1913). We hold that the legislature did not exceed its constitutional powers over parole when it enacted article 37.07, section 4(a). We further hold that the instructions do not authorize the judicial branch to usurp or interfere with the exclusive authority to determine parole granted to the Board of Pardons and Paroles by the legislature. TEX.CODE CRIM.PROC.ANN. art. 42.18, sec. 1 (Vernon Supp.1986). Consequently, this statute does not violate the separation of powers doctrine of the state constitution.

Appellant also contends that he was denied a fair and impartial trial because the instructions are self-contradictory and misleading in that they require the jurors to distinguish between the existence of the parole law in general terms and the manner of its application to the case of an individual defendant. There is nothing inherently contradictory or confusing about this distinction or the way it is described in the statute. We must not underestimate the ability of the average juror. The final instruction is no more complex or abstract than other portions of the charge in a criminal case, e.g., the application of the law to the facts. We hold that the required jury instructions present no irreconcilable conflict — they clearly tell the jury “not to con sider the manner in which the parole law may be applied to this particular defendant.”

Appellant also argues that instructions are given to aid the jury in applying the law to the facts, but here there are no admissible facts to which parole law applies. The giving of admonitory instructions by the trial court, in order to discourage jury misconduct, is within the sound discretion of the trial court. York v. State, 566 S.W.2d 936 (Tex.Crim.App.1978). Guarding against the jury’s consideration of parole falls within this rule. O’Bryan v. State, 591 S.W.2d 464 (Tex.Crim.App.1979). Nor does anything in the Texas Constitution, either express or implied, prohibit the legislature from enacting a law requiring a judge to give the jury a particular instruction on parole and good time. In fact, the Texas Code of Criminal Procedure includes other sections that provide for mandatory jury instructions, e.g., TEX.CODE CRIM. PROC.ANN. art. 38.07 (Vernon Supp.1986) (weight to be given evidence in sexual assault cases); TEX.CODE CRIM.PROC. ANN. art. 38.17 (Vernon 1979) (instruction for uncorroborated testimony). Joslin v. State, at 733.

Experience has shown that although instructed not to discuss or consider the parole laws when assessing punishment, juries have sometimes speculated upon and attempted to apply the parole law in the punishment phase. Judge Clinton of the Texas Court of Criminal Appeals proposed a solution to this problem:

Let us accept that jurors are reasonable and sensible persons who can be trusted to follow their oath and instructions from the trial court when they are made to understand the reason they are not to discuss parole.

.... It follows that jurors would be better informed and equipped to remove operation of parole laws from consideration during their deliberations if and when they are given a common sense reason for doing so. And the most practical reason from the perspective of a layman is that no one in this state can predict when an inmate will be released on parole, or whether one will ever be released on parole at all!

Keady v. State, 687 S.W.2d 757, 762 (Tex.Crim.App.1985) (Clinton, J., dissenting) (emphasis original). The legislature apparently reached the same conclusion as Judge Clinton when it determined that the jury should be given the correct law and should be told why they could not consider it in determining punishment. We hold that aiding the jury in understanding why they are prohibited from considering how the parole law may be applied is a proper subject for the court’s instruction. O’Bryan, 591 S.W.2d 464; York, 566 S.W.2d 936.

Appellant also argues that the trial court committed fundamental error when it submitted the jury instructions of parole under article 37.07, section 4(a), because these instructions were not authorized by the statute. We disagree.

The parole instructions given to the jury were based on article 37.07, section 4(a). Appellant claims those instructions are only authorized by the statute “if the offense of which the jury has found the defendant guilty is listed in Section 3f(a)(l), Article 42.12, of this code or if the judgment contains an affirmative finding under Section 3f(a)(2), Article 42.12, of this code....’’ TEX.CODE CRIM.PROC. ANN. art. 37.07, § 4(a) (Vernon Supp.1986) (Emphasis added). Appellant argues that since there are no sections such as 3f(a)(l) or 3f(a)(2) of article 42.12, appellant’s case could not have come within article 37.07, section 4(a).

This inconsistency in the statute was apparently due to legislative oversight. During the 69th Legislative Session, articles 37.07 and 42.12 were amended by adding section 4 to article 37.07, by adding a new section 3f to article 42.12, and by redesig-nating the old section 3f as 3g. See Act of May 2, 1985, Ch. 427, sections 3f and 3g, 1985 Tex.Sess.Law Serv. 4446-4449 (Vernon). In doing so the legislature apparently neglected to change the cross-reference in article 37.07, section 4, to reflect the recodification of article 42.12. However, it is more than apparent that article 37.07’s references to 3f is to the old 3f which is now 3g. The Texas Government Code requires that we construe the statute reasonably. TEX.GOV’T CODE ANN. sections 311.021 and 311.023 (Vernon Pamphlet 1986).

Sections 311.021 and 311.023 were formerly part of the Code Construction Act. TEX.REV.CIV.STAT.ANN. art. 5429b-2 (Vernon Supp.1986) repealed by Acts 1985, 69th leg., p. 3361, ch. 479, sec. 224, eff. Sept. 1, 1985. The Code Construction Act was reenacted in substantially the same form in the Texas Government Code. The Code Construction Act is applicable to each amendment, repeal, revision and reenactment of any provisions of the Code of Criminal Procedure enacted by the 60th or any subsequent legislature. Barbee v. State, 432 S.W.2d 78, 82 (Tex.Crim.App.1968). A construction which would create a needless conflict between separate articles of the Code of Criminal Procedure is to be avoided if at all possible. Summerford v. State, 627 S.W.2d 468, 471 (Tex.App.— Houston [1st Dist.] 1981, no writ). To hold that article 37.07, section 4, does not authorize the jury instructions in this case would be an unreasonable construction of the sta-tutue and would create a needless conflict between article 37.07, section 4 and article 42.12 of the Code of Criminal Procedure. We presume the legislature intended a reasonable construction. Appellant’s contention is overruled. Joslin v. State, at 735-736.

We hold that appellant was not denied a fair and impartial trial or due process of law by the mere submission of these instructions to the jury. Therefore, no error is presented.

The judgment is affirmed.

GUITTARD, C.J., and AKIN, STEPHENS, VANCE, DEVANY and McCLUNG, JJ., join in this opinion. SCALES, J., concurs in the majority opinion only to the extent that he concurs in the result. WHITHAM, J., files a dissenting and concurring opinion in which HOWELL, McCRAW, HOLLINGSWORTH and MITCHELL, JJ., join.

McCRAW, J., files a dissenting and concurring opinion.

SCALES, J., files a concurring opinion.

HOWELL, J., files a dissenting opinion.