Rose v. State

752 S.W.2d 529, 1988 Tex. Crim. App. LEXIS 117, 1987 WL 1386

• Court: Court of Criminal Appeals of Texas
• Decided: June 15, 1988
• Docket: 193-87
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

In this cause we decide whether an instruction on the law of parole in the charge of the court to the jury given pursuant to the mandate in Article 37.07, § 4(a), V.A.C. C.P., is constitutional. The Dallas Court of Appeals sitting En Banc held the instruction is not violative of the separation of powers doctrine of Article II, § 1 in the Texas Bill of Rights or the Due Process Clause of the Fourteenth Amendment or the Due Course Clauses of Article I, §§ 13 and 19 in our Bill of Rights. Rose v. State, 724 S.W.2d 832 (Tex.App.—Dallas 1986). Based solely on the Constitution and laws of the State of Texas, we will find such an instruction, as well as the mandating statute, is unconstitutional.

I.

Long before there was a Board of Pardons and Paroles the Constitution of the State of Texas vested the power of clemency solely in the Governor. See Article IV, § 11, Constitution of 1876, as originally adopted, quoted in Historical Note following; see also therein references to earlier constitutions containing similar provisions. While from time to time the Governor was aided by something called “Board of Pardon Advisers,” see Interpretive Commentary to § 11, and was taking recommendations as to parole from the Board of Prison Commissioners, exercise of that clemency power vested in the Governor was “subject to no limitations by the Legislature other than that mentioned in the constitutional provision with reference to the remission of fines and forfeitures and with reference to treason.” Ex parte Nelson, 84 Tex.Cr.R. 570, 209 S.W. 148 (1919)¹ and Ex parte Redwine, 91 Tex.Cr.R. 83, 236 S.W. 96 (1922) (any part of parole law wherein clemency power of the chief executive under Article IV, § 11 is “in any wise abridged or infringed would be held.... unconstitutional”).

It was then and still is a ground for new trial that the jury “received other testimony” during its deliberations, or engaged in “misconduct” such that defendant “has not received a fair an impartial trial.” Formerly Article 40.03(7) and (8), V.A.C.C.P.; see now Tex.R.App.Pro. Rule 30(b)(7) and (8). So it was that when jurors recounted instances in the county of trial that after they were convicted and sentenced “the Governor had wrongfully interfered and used the pardoning power to shorten the terms of service of those condemned,” defendant was entitled to a new trial. Weaver v. State, 85 Tex.Cr.R. 111, 210 S.W. 698 (1919).²

Reacting to a general sense developed during those times that “some governors granted pardons indiscriminately,” the Legislature proposed and in 1936 the voters adopted an amendment to Article IV, § 11 to remedy the situation. Interpretive Commentary following. It created a Board of Pardons and Paroles (Board) and, inter alia, conditioned exercise of executive clemency with respect to commutation of punishment and pardons “on the written signed recommendation and advice of the Board;” with respect to remission of fines and forfeiture, “under such rules as the Legislature may prescribe,” again with written recommendation and advice of the Board.

Under this new regime in an unbroken line of cases the Court would continue to hold, generally speaking, that when a discussion of parole by jurors “had the effect of bringing about [an] enhanced punishment,” defendant was entitled to a new trial. E.g., Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168, 170-171 (1947); Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748 (1952). Thus a prosecutor must not invite a jury to consider the parole law in assessing punishment. Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982); Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975). While decisions collected by the Court in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975), indicate it was not particularly consistent in delineating germane factors to be evaluated in analyzing the issues, it was satisfied that “the parole law is not for the jury’s consideration,” id., at 853.

In Heredia v. State, supra, the Court found that “discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury’s consideration,” id., at 853. The reason was founded in our Constitution, viz:

“The decision to parole, if and when made, is beyond the province of the courts ... and therefore the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulations by the legislative branch. Article IV, Section 11, Texas Constitution.”

Id., at 853, n. 4.³

To eliminate the possibility that a jury would become involved in a discussion of parole law, the Court made clear that the trial court should instruct the jury in its charge on punishment “that it should not discuss or consider the possible effects of the parole laws or system.” Moore v. State, 535 S.W.2d 357, 358 (Tex.Cr.App.1976). Elaborating on both Heredia and Moore in Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1978), the Court further explained:

“It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof. Article II, Sec. 1 of the Texas Constitution provides for the separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. * * * * Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch. Art. IV, Sec. 11, Texas Const.; and any action by the judicial branch to frustrate or delay the exercise of that power by the executive branch is as much an unconstitutional interference as is an attempted usurpation of that power. See Ex parte Giles [502 S.W.2d 774 (Tex.Cr.App.1974) ] and Smith v. Blackwell [500 S.W.2d 97 (Tex.Cr.App.1973) ], for unconstitutional grants of authority to usurp clemency powers.”

II.

Now we must first determine whether constitutional principles barring jurors from considering parole laws have survived the revision of Article IV, § 11, effective when the voters approved the proposition submitted by S.J.R. No. 13 in 1983. 4 Vernon’s Texas Session Law Service 1983, at A-158. As revised, § 11 reads in pertinent part:

“Section 11. The Legislature shall by law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions. The Legislature shall have authority to enact parole laws.

♦ * * * }} ⁴

A.

In addressing the separation of powers issue under the Texas Constitution, the Dallas Court of Appeals gave scant attention to revised § 11. Rose v. State, supra, 835-837. It merely disagreed that § 11 supports appellant’s contention “that parole is a component of the clemency powers vested in the executive branch of government and, therefore, these [jury] instructions constitute an usurpation by the judiciary, acting through the jury, of that executive power,” because its own reading of the first paragraph “gives the legislature the power to enact parole laws” and “[t]hus the rules governing parole are within the control of the legislature.” Id., at 836. That reading begs the real question.

The second sentence in the first paragraph of revised § 11 is derived from former § 11 similarly providing that the Legislature “shall have authority to enact parole laws,” and we find no indication that the revision is intended to provide a broader scope of legislative authority in regard to parole laws than already possessed. Therefore, contrary to the view of court of appeals, that the Legislature retains the authority granted in 1936 to enact parole laws is of little importance. What is em-cial is the role of the Board, and to that we now turn.

B.

Clemency power is inherent in sovereignty, and may be lodged in whole or in part wherever the people determine. Ex parte Giles, 502 S.W.2d 774, 780 (Tex.Cr.App.1973); Smith v. Blackwell, 500 S.W.2d 97, 100 (Tex.Cr.App.1973); Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778, 780 (1933); Ex parte Muncy, 72 Tex.Cr.R. 541, 163 S.W. 29, 44 (1914); 27 Tex.Jur.3d 263-264, “Criminal Law" § 4381; 44 Tex.Jur.2d 5-6 “Pardon, Reprieve, and Commutation” § 2; Interpretive Commentary following Article IV, § 11.

In the second paragraph of § 11, as revised, the Governor retains power to grant and to revoke a conditional pardon, as well as all other clemency powers save one formerly in the Governor. The effect of revised § 11 is to remove parole eo no-mine from the clemency power of the Governor and to vest that clemency power to grant and to revoke paroles in the Board. In the sense that the Governor, as chief executive, is no longer empowered to grant it, parole may not be construed to be any form of “executive clemency,” Article 42.-18, § 2a. But parole is an act of grace. Ex parte Lefors, 165 Tex.Cr.R. 51, 303 (1957); United States v. Chagra, 669 F.2d 241, 264 (CA5 1982). So long as it exists and is utilized as a tool of punishment and rehabilitation, jurisdiction, power and authority over parole must be exercised by some officer or agency of government. See and compare Ex parte Giles, supra, at 780 and Smith v. Blackwell, supra, at 101. The people have decided in favor of the Board rather than the Governor, and the Legislature has effectuated that decision in Article 42.18, V.A.C. C.P. Thus, parole is an act of clemency within the “exclusive” jurisdiction, power and authority of the Board. Id., § 1.

The caption of S.J.R. No. 13 characterizes the Board to be established as “a statutory agency,” meaning no more than it is a creature of statute. However, since in 1936 the Board was elevated to constitutional status in the Executive Department and the first sentence of the first paragraph in § 11 mandates the Legislature to establish a Board, we find that, whatever its characterization, the Board remains where it has always been — in the Executive Department. See Texas Liquor Control Board v. Continental Distilling Sales Co., 199 S.W.2d 1009, 1012-1013 (Tex.Civ.App.—Dallas 1947), writ refused n.r.e., 203 S.W.2d 288, 289, appeal dismissed, 332 U.S. 747, 68 S.Ct. 26, 92 L.Ed. 335 (1947). Moreover, the legislation implementing the constitutional foundation for the Board expressly provides that “it is subject to the Texas Sunset Act, but it is not abolished under that Act.” Article 42.12, § 12a, V.A.C. C.P., see now Article 42.18, id. See Texas Sunset Act, Government Code, § 325.014. Compare similar treatment of Secretary of State in Article 4330a, V.A.C.S. (1987 Pocket Part).

Therefore, we conclude that since the Board of Pardons and Paroles is within and part of the Executive Department as contemplated by Article II, § 1, “the decision to grant parole, if and when made, is beyond the province of the [Judicial Department] ... and is exclusively a matter within the [Executive Department], under proper regulation by the [Legislative Department]. Article IV, Section 11.” Heredia v. State, and Sanders v. State, both supra. Accordingly, “any attempt by one department of government to interfere with the powers of another is null and void.” Ex parte Giles, supra, at 780; State ex rel. Smith v. Blackwell, supra, at 101.

C.

The remaining question is whether the legislative mandate in Article 37.07, § 4(a), supra, that the courts “shall charge the jury in writing” the content of instruction given by the trial court in this cause, offends the separation of powers doctrine prescribed in Article II, § 1. Finding the statute is an attempt by one department of government to direct another department to interfere with powers of yet a third department of government, we hold that Article 37.07, § 4(a) is unconstitutional.

While looking at “available legislative history,” the Dallas Court of Appeals said Article 37.07, § 4(a) “must be construed according to its plain meaning.” Rose v. State, supra, at 836. We agree with the latter, and proceed to examine it and the instruction facially.⁵

Both the statute and the instruction begin with a direct albeit erroneous statement, viz:

“Under the law applicable to 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.”⁶

The remainder of the first paragraph in both statute and instruction informs the jury generally about factors relevant to awarding good time and warranting taking it away.

The second paragraph in each adds that length of imprisonment might be reduced by an award of parole.

The third paragraph dictated by the statute reveals to the jury as “the law applicable in this case,” the exact formula to determine when this appellant will become eligible for parole — “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” — and gives a simple example; it points out that eligibility is no guarantee of parole.

The jury is next informed that one cannot accurately predict “how the parole law and good conduct time might be applied to this defendant,” because that depends on decisions made by “prison and parole authorities.”

At this point, however, in the fifth paragraph of both the jury is instructed: “You may consider the existence of the parole law and good conduct time.” That is to say, when it comes to assess punishment the jury may deliberate on the content of what has been stated in the preceding four paragraphs in making a decision as to the number of years it will assess as punishment.⁷

“The evil to be avoided is the consideration by the jury of parole in assessing punishment.” Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982). Rather than avoid that evil the instruction mandated by the statute directly instructs the jury that in assessing punishment it may consider aspects of parole law contained in the instruction.

It is of no constitutional consequence that thereafter excluded from consideration are "the extent to which good conduct time may be awarded and forfeited by this particular defendant” and “the manner in which the parole law may be applied to this particular defendant” by the authorities. Jurors have already been instructed that they may consider the stated explanation of parole law and good conduct time, yet the Court has consistently held the parole law is not for the jury’s consideration. See ante, at 2-4.

The legislative mandate in Article 37.07, § 4(a), supra, is an attempt by the Legislative Department to direct the Judicial Department to interfere with exercise of powers of the Board of Pardons in the Executive Department and, as such it offends the separation of powers doctrine in Article II, § 1. Accordingly we hold that Article 37.-07, § 4(a) and the instruction required by it are unconstitutional.

III.

Appellant also contends that the instruction mandated by Article 37.07, § 4(a), supra, is violative of his rights to due course of law guaranteed by Article I, §§ 13 and 19 and Article 1.04, Y.A.C.C.P. That is, he is being denied that fundamental fairness necessary to due administration of justice, Webb v. State, 161 Tex.Cr.R. 442, 278 S.W.2d 158, 160 (1955), in that in operation and effect the statute, as well as the instruction, preclude a fair and impartial trial on the issue of punishment.

Elsewhere, at time of trial in this cause, Article 37.07 contemplated that an assessment of punishment be based on evidence “as to the prior criminal record of the defendant, his general reputation and his character,” id. § 3(a); to that Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), added “[e]vidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.” Id., at 519.⁸ Of course, the instruction given here is not evidence; in terms it purports to be “the law applicable to this case,” rather than to the facts of the case.

Early on “due course of the law of the land” was held to mean “the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.” Huntsman v. State, 12 Tex.App. 619 (1882). See also Bumguardner v. State, 147 Tex.Cr.R. 188, 179 S.W.2d 768, 770 (Tex.Cr.App.1944). Put in more contemporaneous terms, an essential ingredient of a fair and impartial adversarial proceeding, including a hearing on punishment, is that the ultimate conclusion of the factfinder be a determination of issues tendered by pleadings giving adequate notice, raised by evidence properly admitted, upon an opportunity for defendant to confront adverse witnesses and be heard by an impartial factfinder under fair procedures provided by law, including some showing of the basis for that conclusion. Thompson v. State, 626 S.W.2d 750 (Tex.Cr.App.1981); Caddell v. State, 605 S.W.2d 275 (Tex.Cr.App.1980); Ex parte Guzman, 589 S.W.2d 461 (Tex.Cr.App.1979); Ex parte Quintanilla, 151 Tex.Cr.R. 328, 207 S.W.2d 377 (1947); 12 Tex.Jur.3d 735, “Constitutional Law,” § 157.

Thus when a jury is factfinder its verdict will be reflected in the judgment of the trial court, and the judgment must be entered of record. Article 42.01, Y.A.C.C. P. A verdict on punishment, like a verdict on guilt, is general in the sense that it states an amount of punishment assessed pursuant to Article 37.07, §§ 1(a) and 3(b) and (c). It is now the rule that jurors may not testify to any matter or statement occurring during the course of deliberations or to the effect of anything upon their minds or emotions influencing them or concerning their mental processes. Tex.R.Cr. Evid. Rule 606(b). To gain any insight into the basis and rationale of a verdict one must resort to evidence admitted, the charge on punishment, argument of the parties and other relevant indicia of record, if any.

Jurors are instructed they “may consider the existence of parole law and good conduct time,” and experience teaches the likelihood they will is great. A general adverse reaction to gubernatorial extravagance in exercising powers to pardon and commute is a documented historical fact, and motivated the people to impose restrictions on its use. See ante, at 531-32. More recently trial records and our own opinions reflect that often jurors cannot resist the temptation to discuss parole laws. Indeed, the Bill Analysis reports what is commonly known — jurors were considering operation of parole laws in revulsion against their understanding of how they are being administered. Rose v. State, supra, at 836.

The issue of punishment should be decided on relevant evidence of record prescribed by Article 37.07, § 3(a) under such additional instructions as may be necessary pursuant to id., § 3(c). “It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof.” Sanders v. State, supra, at 351.

So long as provided by law, motion in arrest of judgment, motion for new trial and pursuit of appeal are valuable means of remedying violations of greater rights vouchsafed by due course of law. However, an instruction mandated by Article 37.07, § 4(a), is virtually immune from challenge because the instruction purports to be one of law, evidence relevant to its declarations is not admissible, and counsel are prohibited from arguing the matter to the jury. Whether jurors actually did discuss and consider parole law and good conduct time, and to what extent and effect, can never be properly discovered and adequately determined. The risk that punishment will be based on extraneous considerations is intolerable in a society that constitutionally demands concepts of fundamental fairness be honored in its criminal justice system. McFarlane v. State, 158 Tex.Cr.R. 194, 254 S.W.2d 136 (1953); see State ex rel. Bryan v. McDonald, 662 S.W.2d 5, at 7-8 (Tex.Cr.App.1983); Webb v. State, 161 Tex.Cr.R. 442, 278 S.W.2d 158 (1955) (On Motion for Rehearing, at 160); see also State v. Olsen, 360 S.W.2d 398, at 401 (Tex.1962), excerpting Ramirez v. State, 92 Tex.Cr.R. 38, 241 S.W. 1020, at 1021 (1922). Without interweaving federal law, we observe that it does not appear to be inconsistent: e.g., Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977); see also Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978), and Cole v. State of Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948); cf. Andrade v. State, 700 S.W.2d 585 (Tex.Cr.App.1985) (Concurring Opinion, at 590-591). Therefore, we hold that Article 37.07, § 4(a), along with the instruction it mandates, violates Article I, §§ 13 and 19.

CONCLUSION

Having held the statute and the instruction it requires unconstitutional in two respects, now we should determine whether beyond a reasonable doubt the instruction made no contribution to punishment assessed by the jury. Tex.R.App.Pro. Rule 81(b)(2).⁹ However, a majority of the Court views that matter differently.¹⁰

Accordingly the judgment of the Dallas Court of Appeals is affirmed.

DUNCAN, J., joins Part III.

1 . ‘It is not within the power of the Legislature to enlarge or restrict the pardoning power vested in the executive nor to impose conditions upon which it may be exercised, nor requirements touching the conditions precedent or subsequent which are imposed by the executive upon the convict...."

Id. 209 S.W., at 150. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

2 . “The facts ... indicate that the verdict assessing the death penalty does not reflect the deliberate judgment of the members of the jury, upon the evidence legally before them, but that some of them were induced to agree to it because ... in such cases the Governor had, in the opinion of the jurors relating the extraneous facts, been overlenient in the exercise of the pardoning power.” Id. 210 S.W., at 700.

3 . That the Court was later to reject the Heredia formulation for determining whether jurors' discussing parole laws constitutes reversible error, Sneed v. State, 670 S.W.2d 262, 266 (Tex.Cr.App.1984), does not undermine the constitutional propositions enunciated in Heredia and elsewhere.

4 . The remaining paragraph is a restatement of clemency power vested in the Governor and the advisory power granted the Board by the second paragraph of former §11, except deleted is power to revoke "paroles.”

Let us read precisely the proposition approved by the people November 8, 1983, viz;

"The constitutional amendment to change the Board of Pardons and Paroles from a constitutional agency to a statutory agency and give the board the power to revoke paroles.”

S.J.R. No. 13, 4 Vernon’s Texas Session Law Service 1983, at A-158-159. The constitutional command is that the Legislature shall convert the Board into a statutory agency which will continue to recommend and advise the Governor in all matters of executive clemency except paroles, leaving to the Board alone determination of paroles.

The amendment proposed by S.J.R. No. 13 became effective upon approval by the voters November 8,1983. The amendment retained in the Board its constitutionally provided authority and duty to make written recommendation and advice to the Governor with respect to granting reprieves, commutations and pardons and remitting fines and forfeitures. The Legislature made no change in the character, duties and functions of the Board with respect to parole prescribed in former Article 42.12, V.A.C.C.P. In Acts 1985, 69th Leg, Ch. 427, § 2, implementing S.J.R. No. 13, codified as Article 42.18, V.A. C.C.P., the Legislature expressed its intent "to designate the Board of Pardons and Paroles as the agency of state government with exclusive authority to determine paroles,” Article 42.18, supra, § 1. It further provided, with an exception not here implicated (an amendment to § 4, Article 42.12, V.A.C.C.P.), that “this Act is intended as a recodification only, no substantive change in law is intended, and [the Code Construction Act] applies to this Act.” Acts 1985, 69th Leg, Ch. 427, p. 1555, § 4.

5 . The instruction is set out verbatim in the opinion of the Dallas Court at page 835. That the Dallas Court may have in part rested its decision on statute and instruction as applied to appellant, see Rose v. State, supra, at 837, is a matter we need not review here.

6 . A prisoner may not "earn time off the sentence imposed." One may earn good time to eligibility for parole and mandatory supervision, but release on either status is subject to continuing compliance with rules and conditions of release "until the end of the term to which he was sentenced." Article 42.18, § 17; see also Article 6181-1, § 4, V.A.C.S.

In oral argument the State characterized that language as "inartful.” But if we are to presume that jurors follow instructions, as the Dallas Court insisted. Rose v. State, supra, at 836, then we must attribute to this jury an awareness at the outset that term of sentence imposed on appellant in accordance with number of years of punishment assessed by the jury in its verdict would be lessened by an award of good conduct time. Thus the jury begins its deliberations on punishment with an erroneous and misleading notion in mind.

7 . To consider is synonymous with study, contemplate and weigh; their shared meaning element is “to apply one's mind to something in order to increase one’s knowledge or understanding of it or to reach a decision about it." Webster’s New Collegiate Dictionary (1979) 239. When functioning in a formal body, we "consider and deliberate with a view to action." Funk & Wagnalls Standard Handbook of Synonyms, Antonyms & Prepositions (Revised Edition 1947) 148-149.

8 . Amended effective September 1, 1986, Article 37.07, § 3(a), now reads in pertinent part that "evidence may, as permitted by the Rules of Evidence, be offered [et cetera]." That introduction of rules of evidence into the punishment hearing does not affect our rationale or the result we reach here.

9 . A harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), is inappropriate here. The trial court gave an instruction mandated by statute; thus it does not appear from the record that any requirement of Article 36.14 through Article 36.18 'has been disregarded,” as contemplated by Article 36.19, V.A.C.C.P.

10 . Because the trial court gave the invalid instruction in accordance with requirements of a facially unconstitutional statute, the writer is of the view that appellant suffered sufficient harm from the denial of due course of law explicated in Part in of this opinion. We are satisfied that in telling the jury it could consider the parole law and good conduct time the infirm instruction fatally infected the entire punishment hearing. Compare Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1978). The concurring opinions, however, do make a harm analysis under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), and say none is sufficient to find that appellant has not had a fair and impartial hearing on punishment. Judge McCormick and those who join him in dissent would not hold the statute and the instruction it mandates unconstitutional. The consequence is that while a majority finds error in giving the instruction, it also holds the error does not call for a reversal.