Spelling v. State

768 S.W.2d 949, 1989 Tex. App. LEXIS 1241, 1989 WL 48063

• Court: Court of Appeals of Texas
• Decided: April 20, 1989
• Docket: 2-85-293-CR
• Status: Published

Opinions

OPINION ON REMAND

WEAVER, Chief Justice.

Appellant, Arema Margaret Spelling, was convicted by a jury of murdering her three-month-old son. See TEX.PENAL CODE ANN. sec. 19.02(a)(2) (Vernon 1989). The jury sentenced her to seventy-five years in the Texas Department of Corrections. This court affirmed the conviction. Spelling v. State, 719 S.W.2d 404 (Tex. App.—Fort Worth 1986). The court of criminal appeals in an unpublished opinion reversed and remanded Spelling to this court for a harm analysis under TEX.R. APP.P. 81(b)(2).

We reverse and remand for a new trial on punishment only.

The issue in this case is whether appellant was harmed by parole and good time instructions given pursuant to TEX.CODE CRIM.PROC.ANN. art. 37.07, sec. 4(a) (Vernon Supp.1989). Recently the court of criminal appeals held these instructions to be unconstitutional because they violated the separation of powers doctrine and the state due course of law provision. Rose v. State, 752 S.W.2d 529, 535-37 (Tex.Crim.App.1987). On its own motion for rehearing the court of criminal appeals determined that the standard of harm used on review of cases containing the erroneous parole instructions was the reasonable doubt test of rule 81(b)(2). Id. at 553 (opinion on reh’g). This rule reads:

(2) Criminal Cases. 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).

The charge given to the jury tracked substantially TEX.CODE CRIM.PROC. ANN. art. 37.07, sec. 4(a). However, this charge failed to add the additional limiting instruction that was present in Rose. Rose, 752 S.W.2d at 554 (opinion on reh’g). It is true that there is no mention in the prosecutor’s closing argument during the punishment phase of parole or of good time served. Further, the facts of the offense (the death of a three-month-old infant by a beating) seem to warrant a harsh sentence.

However, in examining the range of punishment (five to ninety-nine years or life, see TEX.PENAL CODE ANN. sec. 12.32 (Vernon Supp.1989)) we cannot say that the parole and good time instructions had no impact on the punishment assessed. Appellant had no prior convictions and the sentence (seventy-five years) was in the upper range of that available for the offense. In reaching our holding we do not apply any mathematical formula (such as greater than one half the time that could have been assessed); we merely are unable to find beyond a reasonable doubt that given all the facts and circumstances in this case the erroneous parole and good time instructions made no contribution to the punishment.

Accordingly, the judgment of the trial court is reversed, and the cause is remanded for a new trial on punishment only. See TEX.CODE CRIM.PROC.ANN. art. 44.-29(b) (Vernon Supp.1989).