Sato v. State

797 S.W.2d 37, 1990 Tex. Crim. App. LEXIS 154, 1990 WL 150112

• Court: Court of Criminal Appeals of Texas
• Decided: October 10, 1990
• Docket: 421-89
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted by a jury of the offense of aggravated robbery. The jury assessed punishment at twenty years confinement in the Texas Department of Corrections and a fine of $1,000. The conviction was affirmed in an unpublished opinion. Sato v. State, No. 05-86-00766-CR (Tex.App.—Dallas, delivered June 23, 1987). We remanded this case to the Court of Appeals for reconsideration of appellant’s ground of error concerning the “parole law” instruction of Art. 37.07 § 4, V.A. C.C.P., in light of our decision in Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988). The conviction was again affirmed in an unpublished opinion. Sato v. State, No. 05-86-00766-CR (Tex.App.—Dallas, delivered February 7, 1989). We granted review to determine whether the Court of Appeals correctly determined the inclusion of the parole law instruction in the trial court’s charge on punishment was harmless beyond a reasonable doubt. We will affirm.

Recently, in Arnold v. State, 786 S.W.2d 295 (Tex.Cr.App.1990), we listed a number of factors which should be considered in determining whether “Rose error” was harmless: discussion during voir dire, argument of counsel, notes from the jury, sentence assessed, deadly weapon finding, facts of the case, previous convictions, “curative” instructions, and objections to the charge. Although not exhaustive, we will refer to that list for guidance here and will discuss each applicable factor. We note there is no specific weight attached to each factor nor is the presence or absence of any one factor determinative.

The voir dire examination of the prospective jurors was not transcribed and therefore was not a factor considered by the Court of Appeals. No objection was made by appellant to the charge, no curative instruction was given, and no evidence of prior convictions was offered to the jury. The State invited the jury to consider the operation of parole when the prosecutor argued:

You know a little about this man, but you also know about the parole laws. The Judge gave it to you and you know now that good conduct time shaves off the time this man spends in the penitentiary. You know he is eligible in one-third of the time or 20 years, whichever is less, and that’s why I’m asking for 60. I could get up here and ask life, but it wouldn’t do any good. 60 years is something he is going to be eligible to do in 20 years, less conduct time. I hope you understand what I’m driving at. I’m asking you to assess a 60-year verdict because this man has earned it. He has done everything to accomplish that and he has earned the right to spend the time down there....

Appellant did not object to this argument.

Although a direct argument to consider and apply the parole law will make it more likely that the parole instruction contributed to the sentence than would an oblique or passing reference, two facts minimize that possibility here. First, the argument did not have the desired effect, i.e., a sixty-year sentence. An improper argument which works is more likely to have contributed to the punishment than one which does not. Second, the prosecutor did not linger on this topic after discussing it one time. Discussion was given in the midst of a “give him the time because he earned it” argument. Stressing the parole law by argument at a strategic place, such as the beginning or end of the State's summation, will also be likely to cause more harm than a reference in the context of a different topic.

The record before us does not contain any jury notes from the punishment phase. While the presence of jury notes on parole will show the jury did at least consider parole application and will be weighed heavily as showing harm, their absence does not indicate no such consideration occurred. Therefore, the absence of jury notes is of no aid to our analysis.

The sentence here is in accord with the facts, which as disclosed by the record, reveal the following. The victim, Mr. Capps, left the keys to his car on the trunk as he went to pay for his gasoline purchase. Appellant was seen in the driver’s seat having difficulty getting the car in gear. Capps ran to the car and leaped onto the hood. Appellant accelerated, causing Capps to be thrown from the hood of the car. When the victim stopped rolling, he noticed the wheels of the car cut sharply and directly toward him. The path was clear for appellant to leave the gas station without turning to aim at Capps. Appellant ran over him, breaking both the victim’s legs. At the time of trial nearly five months later, Capps still suffered pain, was receiving treatment and faced the likelihood of additional medical procedures.

Appellant was apprehended nearly a month later when police responded to a burglary call. The man arrested led police to appellant who was waiting behind the wheel of the stolen car. Because police could not locate Capps in time to make an identification, appellant was released. When police did attempt to locate appellant, they learned the address he gave was false.

The penalty range for this first-degree felony is five to ninety-nine years or life in prison plus a fine of up to $10,000. We conclude the sentence assessed is in accord with these facts. We also note the sentence here is not susceptible to the “one-third rule.” See Arnold, supra. Unlike the absence of jury notes, this may add to our analysis in some instances. The prosecutor explained to the jury how to apply the parole law when he asked the jury for a sentence of sixty years so that appellant would be eligible for parole in twenty years. That the twenty-year sentence actually assessed is not evenly divisible by three is indicative that the “one-third” argument made by the prosecutor did not play a part in the jury’s deliberations.

Based on all the factors in this case, we conclude the Court of Appeals correctly determined the erroneous charge made no contribution to the punishment. Therefore, the judgment is affirmed.

TEAGUE, J., dissents. McCORMICK, P.J., concurs in the result.