Zaragosa v. State

721 S.W.2d 429, 1986 Tex. App. LEXIS 9090

• Court: Court of Appeals of Texas
• Decided: November 26, 1986
• Docket: 13-86-262-CR
• Status: Published

Opinion

OPINION

NYE, Chief Justice.

A jury convicted appellant of sexual assault of a child. Punishment was set at ten years in the Texas Department of Corrections. The trial court’s charge to the jury included the instruction on the law of parole prescribed by Tex.Code Crim.Proc. Ann. art. 37.07, § 4 (Vernon Supp.1986). Appellant’s sole ground of error is that the instructions on parole violated the separation of powers doctrine of the Texas Constitution. Tex. Const, art. II, § 1.

Appellant’s sole authority for his contention is Rose v. State, No. 5-85-1136-CR (Tex.App.—Dallas, August 11, 1986). However, that opinion has been withdrawn by order of the Dallas Court of Appeals dated September 12, 1986. We refuse to hold that allowing jurors to consider the effects of parole laws is an unconstitutional usurpation by the judicial branch of the power to grant parole, which power resides in the executive branch.

Furthermore, appellant failed to object to the inclusion of this charge at trial. He raises the constitutional issue for the first time on appeal. No fundamental error is raised or presented. Failure to object or otherwise apprise the trial court of one’s claim waives even constitutional error. Corley v. State, 582 S.W.2d 815, 821 (Tex.Crim.App.1979), cert. denied, 444 U.S. 919, 100 S.Ct. 238, 62 L.Ed.2d 176 (1980); see In re M.A.B., 641 S.W.2d 621, 623 (Tex.App.—Corpus Christi 1982, no pet.).

Appellant’s precise contention has been overruled in Casares v. State, 712 S.W.2d 818, 821 (Tex.App.—Houston [1st Dist.] 1986, no pet.); see also Clark v. State, 721 S.W.2d 424 (Tex.App.—Houston [1st Dist.] 1986, no pet.); Patton v. State, 717 S.W.2d 772 (Tex.App.—Fort Worth, 1986, no pet.).

We overrule appellant’s ground of error. The judgment of the trial court is affirmed.