*1 ARNOLD, Gregory Appellant, Joel
v. Texas, Appellee.
The STATE of GAINES, Appellant,
Anderson
v. Texas, Appellee.
The STATE of HOOPER, Jr., Appellant,
Edwin Francis Texas, Appellee.
The STATE of
Gary PAYNE, Wayne Appellant, Texas, Appellee.
The STATE of TAYLOR,
Peggy Appellant, Marie Texas, Appellee.
The STATE of 482-89, 483-89, 627-89, 507-89,
Nos.
530-89 and 373-89. Texas,
Court of Criminal Appeals of
En Banc.
Jan. 1990.
Rehearing Denied March *2 (court T. appointed
Robert Baskett Dallas, appeal only), for Arnold. Wade, Henry Atty., former Dist. John Vance, Davis, Atty., Dist. and Donald G. Hasse, Norman Kinne and Mark Asst. Dist. Attys., Dallas, Huttash, Robert State’s Austin, Atty., for the State. (court appointed ap- David R. Weiner Antonio, peal), San for Gaines. appeals are con- Finding courts of Jr., Atty., Millsap, former Dist. D. Sam analyses of Rose ducting disparate harm Atty., Edward Rodriguez, Dist. Fred G. error, review these causes granted West, III, Phylis Juan Shaughnessy, F. submission on them for and consolidated Jr., Hardy, Asst. Raymond J. Chavira argument in order and oral briefs Huttash, Antonio, Robert Attys., Dist. San ap- recurring problems in address Court to Austin, for the Atty., State. State’s *3 Tex.R.App. pellate of Rose error. review Houston, Yollers, Jacobs, George Jim 0. (6). begin 200(c)(1), (2) and We Pro.Rule Austin, Hooper. for proposi- pertinent underlying with basic Holmes, Jr., Atty., and B. Dist. John tions, germane consid- then discuss various Hudson, Rizzo and Leslie Harvey Dan specific finally apply them to erations and Houston, Brock, Attys., Robert Asst. Dist. at issue. situations Austin, Huttash, for the Atty., State’s State. I governing the rule reversal Unlike Dallas, (on appeal only), Hagler H. John cause, 81(b)(2) in Rule judgment a civil Payne. for provides: Wade, Henry Atty., former Dist. John in a criminal “If the record Kain, Vance, Atty., Mary Dist. Jo proceedings error in the be- case reveals Gregg, Stephen Thomas R. Miller low, appellate court SHALL reverse Berdanier, At- Asst. Dist. Pamela Sullivan review, judgment under unless the Huttash, Dallas, Atty., tys., Robert State’s beyond determines appellate court Austin, for State. doubt that the error made reasonable Bums, Worth, Taylor. Danny D. Fort to the conviction or to no contribution Vance, Alyce Atty., punishment.”1 Dist. Kathi John Drew, Hasse, Busch and Mark Marcus grant- legislatively extent of To the fullest Huttash, Dallas, Attys., Dist. Robert Asst. created the rule authority, ed this Court Austin, Atty., State’s State. consistency formulation interest of and our practically is
of the “unless” clause taken language in Fahy from v. Con- verbatim 85, 229, necticut, 11 84 S.Ct. 375 U.S. (1963), Supreme 171 that the Court L.Ed.2d ON PETITIONS FOR OPINION Chapman isolated and iterated v. Cali- DISCRETIONARY REVIEW 824, 18, 87 17 fornia, 386 U.S. S.Ct. CLINTON, Judge. (1967), fashioning its rule L.Ed.2d 705 determining “a federal constitu- as when present These causes various harmless,” can be held tional error pects application Tex.R.App.Pro.Rule 81(b)(2) “statutory” punish little, any, error at difference There charging stage Fahy ment our statement v. Con- between 37.07, 4, V.A.C. rea- pursuant to Article ‘whether there is a necticut about (Tex.Cr. 529 com- possibility v. 752 S.W.2d that the evidence C.P. Rose sonable giving to the plained might error” is an have contributed App.1987-1988). “Rose constitutionally beneficiary requiring instruction in terms of the conviction’ 535, Id., prove 553- error to at 537 and constitutional infirm statute. of a reasonable doubt that the error com- 554. harmless, 81(b)(2) [e.g.,] Amendment Sixth Independent there are stat- considered 1. of Rule pervade proceeding,” entire providing specially a standard of review violations utes 253, 249, Texas, errors, 108 U.S. at e.g., Satterwhite v. 486 some Almanza 284, 1794, 1792, 157, 100 L.Ed.2d at 293 (Tex.Cr.App.1985); at see Rose v. S.Ct. at 171 because, 81(b)(2) 537, Moreover, (1988), presupposes that the error Rule supra, as well at statutes, analy- subject question to a harmless error mandatory some con- as violations of (All emphasis here provided "by very cast sis not elsewhere. their nature stitutional violations throughout supplied of this pro- the writer on the fairness of the trial so much doubt indicated.) that, law, otherwise unless can never cess as a matter of plained did not contribute to the previously Thus while this Court We, therefore, verdict obtained. in jury adhere has often dealt with harm miscon law, Fahy meaning implicating parole to the of our case when duct insofar as mak hold, now, 81(b)(2) ing analysis Rule to deter as we do that before a under resulting harm from an federal held mine likelihood of constitutional error can be harmless, pursuant Ar must to de- unconstitutional the court be able 37.07, 4, appellate confront a clare a be- ticle courts that was harmless belief precedent. task with little We do know the yond a reasonable doubt." at 24- applicable beneficiary 828-829, rule is and that 26, S.Ct., L.Ed.2d, at at error the to show State has burden 710-711. beyond a doubt that the error reasonable Mallory See at punish did contribute verdict on (Rule 81(b)(2) (Tex.Cr.App.1988) elimi- Chapman California, supra, ment. propriety expressing nated test elective L.Ed.2d, U.S. S.Ct. in a uniform harmless error less than *4 Texas, supra, 710; v. Satterwhite 486 U.S. fashion); Harris v. State (Tex.Cr.App. No. 259, 1798, S.Ct., L.Ed.2d, at 108 at at 100 69,366, 28, 1989, delivered June motion for State, supra, (Clinton, 295; J., Harris v. rehearing (Rule 81(b)(2) pending) “rheto- State, Hargraves dissenting 10); v. at see equivalent rical and of the harm- semantic 743, 738 S.W.2d at 749 — Dallas by less error standard announced Su- PDR refused. Thus an preme Court for constitutional errors court must be able to find an error harm id., Chapman California," v. majority slip less a reasonable doubt. Rule State, 29); Bennett v. opinion at 766 Chapman California, v. 81(b)(2); supra. 227, 229, (Tex.Cr.App.1989) n. S.W.2d at 7 Chap- (Rule 81(b)(2) progeny is codified of man v. analy- error harmless II California
sis).2 A
Applying pun- federal rule Texas to Texas, v. Burgett proceedings ishment are produced constitu by Where evil 109, 115, 258, 262, U.S. 88 19 389 S.Ct. scope tional violation at trial limited (admission (1967) 319 presump- L.Ed.2d of evidence, particular of erroneous admission tively by void conviction cured impermissible or a in comment flawed disregard, instruction nor with- harmless usually reviewing guilt, struction on Chapman California, v. meaning of undertake with some confidence v. supra), and Satterwhite opinion assessing of that the its task likelihood Texas, 249, 1792, 486 100 U.S. 108 S.Ct. materially error affected deliberations Satterwhite, supra, (1988); 284 see also deci- jury. L.Ed.2d our own at 486 U.S. 1797-1798, e.g., May- 81(b)(2) in, 257, S.Ct., L.Ed.2d, preceding Rule 108 sions at 100 Arkansas, 294-295; Holloway 60, nard v. 67-68 435 at at 1173, 1182, 475, 490-491, Clemons v. (Tex.Cr.App.1985), 605 at 98 S.Ct. at U.S. 567, 426, (1978); see Carella (Tex.Cr.App.1980), 438 S.W.2d at 571-572 55 L.Ed.2d at California, 825, U.S. -, and Jordan v. 576 at 491 109 S.Ct. However, 2419, (1989).3 105 218 (Tex.Cr.App.1978). 829-830 L.Ed.2d history California, development Chapman example, 2. For a extensive more 3. argument Supreme on failure to judgments Court believed application of the federal rule to testify coupled effect with an instruction to the conviction, majori- supra, Harris v. see that the "could draw adverse inferences 32-33, dissenting slip ty slip opinion at 19, id., testify,” at from S.Ct., failure [accused’s] Clinton, J., opinion of at 2-8. The latter focuses 824, L.Ed.2d, (see at at 707-708 n. particularly erroneous admission of "tainted” on text), complete "impressed that from impermis- evidence and erroneous allowance testify, petitioners intents the failure of to all testify, sible comment on failure accused purposes, the inferences from the facts error, charging tangentially mentions evidence had to be drawn favor 5, 6 do not at but the cases collected in note L.Ed.2d, S.Ct., at at State[.]" on treat instructions Quaere had instruction at 711. the result (“whether court’s scope may not so the trial of Rose error be discerned, consequences readily or its so parole jury’s subjectively influenced Rose, supra, easily assessed. at 537 and verdict”). 81(b)(2) Again, under Rule 554; Satterwhite, supra, 486 cf. U.S. at negativing such influence burden S.Ct., L.Ed.2d, 256, 108 at at beyond a doubt is the State. reasonable 1798. ante, See felony In all where a deter- cases 4 in in each analyzed As we § punishment, mines there is not an “issue” trial statute mandates the subsection the decide; indeed as such for it common jury: court to inform that “it practice to admonish the will applicable first: the law to this “Under proper you in determining not be case, may earn time the defendant... to fix the penalty to be assessed same imposed through the the sentence off award of full, fair, any method than a time;” good conduct exercise of free individual length under evidence admitted of imprisonment before second: you.” Jury Texas Pattern Criminal “might reduced the award (State 1975), Charges Bar of Texas CPJC § parole;” 12.42((a)-(c), 84, 12.42(d), and CPJC applicable third: the law to this “Under 87; Blackwell, Texas McCormick & Crimi- case,” (with precise there is a formula Manual, 81.05, nal Forms Trial time) conduct deter- without 270; McClung, Jury Texas Practice mine will be- when “the defendant” *5 Charges (Rev. for Texas Criminal Practice eligible parole; come Ed.1988) Intruding into its area wide accurately pre- fourth: While one cannot discretion, Legislature of commanded parole good dict “how the law and jury be the parole that the instructed about might applied time to this conduct court jury law—“the shall defendant,” depend because “will writing applicable as follows”—as by prison parole made decisions and upon of depending status defendant its ver- still, authorities;” guilt, of finding dict an affirmative of a deadly weapon allegations and of con- jurors may fifth: are instructed: “You 37.07, Article viction enhancement. pa- the existence CONSIDER 4(a), (b) (c). role good law and conduct time.”
“The evil
be avoided is the considera Rose, at 535.
parole
assessing
tion
it
say,
That
when
comes to assess
State,
punishment.”
752
Rose v.
S.W.2d
jury may
on the
deliberate
529,
535,
State,
quoting
at
v.
Clark
643
just
content of what
the trial court has
723, 725 (Tex.Cr.App.1982).
S.W.2d
Thus
explained
preceding
paragraphs
four
reviewing
of a
the task
to make
making
as to
its decision
the number
intelligent judgment”
“an
about whether
Ibid;
punishment.
assess as
will
“might
the unconstitutional
State,
727,
Rogriguez
762
at 733
v.
S.W.2d
have affected
deliberations
[or influenced]”
(instruction
(San
1988) no PDR
en
Antonio
Satterwhite,
punishment.
pa
courages
consider
jury to
existence
S.Ct.,
258,
1798,
supra, 486
108
U.S. at
at
time);
good
role law
conduct
Olivarez
1799,
L.Ed.2d,
295, 296;
May
100
at
see
113,
State,
(Tex.
at 115-116
v.
756 S.W.2d
State,
67-68;
supra,
nard v.
at
Clemons v.
1988)
(jury
no
al
App.
Antonio
PDR
571-572;
State,
State,
v.
supra, at
Jordan
— San
lowed to
on content of first four
830;
deliberate
State,
supra,
Spelling
at
v.
768
statutory
law
1989) paragraphs
parole
(Tex.App.
949
S.W.2d
Worth
— Fort
J.,
(Keltner,
charge).
pending
dissenting)
PDR
Oklahoma,
gested
Virginia
review
alone.
v.
447 U.S.
Jackson v.
standard for
stood
343,
See Hicks
2227,
(1980),
sufficiency
apply
evidence
100 S.Ct.
That the
told not to Otherwise
would be
good
speculative
analysis
consider “the
to which
conduct
extent
that a harm
such
may
time
be awarded or forfeited” or “the
inappropriate.
would be
Satterwhite v.
parole
may
manner
in which the
be Texas,
256,
S.Ct.,
1797,
supra,
at
at
108
defendant,
applied” to the
we held to be of
L.Ed.2d,
294;
State,
100
v.
at
Sorrell
consequence,”
“no constitutional
because
299,
505,
(1914).
Tex.Cr.R.
at 303
169 S.W.
jurors
already
“had
been
instructed
demonstrates,
as experience
But
best
they may
explana
CONSIDER the stated
likelihood is
consider
that a
will
tion of
law and
conduct time.”
“existence,”
thereby
assess a term of
Obviously,
only purpose
Ibid.
allow
years it
may
believes
ensure the defendant
ing
to consider
“existence” of
pre
serves more
the minimum term
than
good conduct time
law and
is to inform
regardless
prison
pa
scribed
of what
punishment;
in
their assessment
role authorities
later decide. See
“clearly designed
struction is
to increase
State,
536;
at
Blackwell
sentence,”
State,
Gabriel
[the]
9,
(Tex.App.
S.W.2d
at 12
Worth
— Fort
68,
(Tex.App.
S.W.2d
[1st]
— Houston
1989) PDR;
State,
no
Martin v.
S.W.2d
1988)
considering
no PDR. In
such “exist
1989)
13 (Tex.App.
Worth
no
— Fort
ence,” however, jurors
attempt
must not
PDR;
State,
to find either
id., 552-553;
error,
quired
preserve
are
tioned or that certain references
to it
view,
prescribed instruction
significant.5
4 mandates a
not all that
But
our
unobjectionable,
endeavoring
“qualify” prospective
is calculated to render
might have dissuaded defense
them to a
and thus
on a
instruction introduces
(To
exercise,
making
objection.
re
constitutionally
tends to
counsel from
forbidden
matter.) But neverthe
lay
predicate
quest
for further discussion of
it is another
during
proceedings
less that an instruction was submitted over
such matters
appear
4. While it does not
be a common
about the effect of
law on assessment of
instruction,
practice, anticipating
promptly
counsel
but was
told that
§ 4
verdict;
reaching
may
present
file
direct-
be considered in
motion
limine
could not
during
ed to allusions to
voir dire
she was struck
defense counsel.
evidence,
(Tex.
guilt stage, presentation
Also see
objection speculative dispel any argument may serves to not be caveat: while error se, might per tending notion one in terms seeking that counsel made gain advantage eligibility for some induce consideration of the from instruction. State, See Gabriel v. teachings mula of a and other 4 instruc supra, at 70. That an Rose compounds may tion error and influ objection practically is overruled invites le- in its comment, punish ence the deliberations on gitimate brings argu- which us State, Rodriguez v. ment. 141 ment of counsel. (Tex.Cr.App.1988), remanding for reconsid Rodriguez v. 504, eration 721 S.W.2d (Tex.App. at 507-508 [14th] — Houston in Rose said leading Although v. 1986); 770, Jones at prohibited arguing are from counsel see Satter 1987); (Tex.App. — Dallas id,, matter, at cases demon Texas, supra, white 486 U.S. at counsel, strate not it is uncommon S.Ct., 1799, 100 L.Ed.2d, (“district at at subj usually prosecutor, to address Grigson’s attorney highlighted Dr. creden Moreover, agree we now that “it ect.7 closing argu tials in his and conclusions error for the State or the defen not ment”). argue parole dant the law of to the example A State, supra, offending argu classic of an Blackwell jury,” at 11. Moore by prosecutor ment found in Therefore, matters not which counsel No. 05-86-00664- “opens” subject parole, first — Dallas CR, 1989) April 10, refused, delivered PDR “opener” consequently an does not neces (edited by somewhat for brevity, here sarily opposing respond “invite” counsel emphases notations) deleting and other otherwise, reviewing in kind or such that a say may thing get through court can “a not first I defendant create “The want manipulations,” right away charge.... reversible error his own Escobar v. 27; and, Now, might say happen it is not error we can’t defendant, improper, manipulative if not it is because we can’t However, important crystal invitation. there is an read the ball. Indeed, prosecu- years emphasized appellant’s Rose the both
7.
fact is that
least 78
parole,
Judge
did
tors
allude to
Miller noticed
as a
criminal.’
further
character
‘career
He
concurring opinion
original
already,
in his
sion,
has
submis-
stated: ‘Carl Leonard Williams
viz;
lifetime,
years,
system
his
the last 18
our
years
has sentenced him to a total
"During
argument,
prose-
final
while both
prison, and here he sits.’
appellant was
cutors mentioned that
back in
Although
prosecutor
directly
did
receiving
years
twenty-
Dallas
twelve
after
law,
mention
this comment directed
(as
year
five
sentence
reflected
admit-
jury’s
to the fact that
attention
convictions),
ted
neither
evidence
sentence,
probably
would
not serve the entire
gave
fact
further attention to that
nor men-
and invited them consider
law in
arguments.
tioned
in their
Both asked
assessing punishment.”
for a
the facts
life sentence because of
(Tex.
And in Escobar v.
But
or
the defendant
Morris
S.W.2d
1988)
person
this,
first-degree
(Tex.App.
like
in a case
at 511
PDR
[1st]
— Houston
murder,
deadly weapon,
a
could
with
be
refused.
time
parole
released on
when his
served
spectrum is, e.g.,
At
end of the
the other
equals
twenty,
or
a third
whichever
05-
Barger
(Tex.App.
No.
v. State
— Dallas
example
comes first....
Let’s take an
28, 1989)
85-01242,
April
PDR
delivered
sixty-year
sentence.
Its
third or
(offense murder;
pending
parole
spe
is
Well,
twenty,
first.
whichever comes
argument; prosecu
mentioned in
cifically
sixty
Twenty years
third of
is
twenty.
charge
four
page
tor told
to look at
penitentiary
eligi-
before he becomes
instruction),
(containing
it was
parole.
ble for
“important”); Pope
(Tex.App.—
v. State
thought,
you
you
I bet
before
heard
05-86-00065-CR,
Dallas No.
delivered
that,
sixty-year
that a
sentence meant
(defense
March
counsel mentioned
sixty
years in
Texas Depart-
calendar
serving
twenty years
life
means
at least
Judge
ment of Corrections. As the
has
argument
punishment).
to lessen
instructions,
given you in his
he’s enti-
are
cases
Somewhere
between
such
person
to
charged
type
tled
in this
be—a
such as Bonner v.
779 S.W.2d
paroled
is
case
entitled to be
when
1989)
(Tex.App.
pend
PDR
[1st]
— Houston
So,
they
twenty years.
served
real-
murder;
ing.
is
The offense
defense coun
ly,
joke.
sentences
those
are a
“emphasized
they
sel
to
[Judge injects,
eligible
pa-
“He’s
to be
permitted
discuss
entitled];”
roled
counsel corrects
[not
reaching
punishment;”
their decision
sorry, eligible....
“I’m
himself:
No one
argument
prosecutor
closing
his
parole,
eventually
is entitled to
some
seemed ambivalent
commented
everyone
sentence,
out
serves
their
one
ambiguously,
way or the other.”]
going
say
I’m not
on the
“...
word
So,
that in
bear
mind. Whatever sen-
were,
they
If I
laws.
knew what
instance,
you give,
tence
if its a thir-
charge
I
controls it.
which
don’t—the
sentence,
ty-year
then that means ten
I
you about that. But want
He’s told
parole.
eligible
become
before
you
to consider what the
has
why
asking
So
I’m
for a
that’s
maximum
say. And that’s it.
case,
sentence in this
it will take
because
you
I
to realize that
But want
sixty-year
keep
sentence or
better
there. That’s it. That’s all there is to it.
penitentiary
this
man
at least
any
I
over
And he
don’t have
control
it.
twenty
years.
calendar
any
over
doesn’t have
control
it.
ninety-five
ninety,
you
Consider
legislature
doesn’t have
control over
think
entitled to
consideration
he’s
more
message to
Really, you
it.
can send a
that, maybe you’ll
eighty-
than
consider
message
You can send a
them.
years.
always
five
But
bear
mind
community;
penalty
that is that the
means,
third
rule
what that one
sentence
grievous, grievous,
crime such
impact
real
because that where the
as it should be.”
you.”
Thank
your verdict will
felt.
years.8
term of
assessed a
fifteen
Id., slip
at 4-5. The
assessed
however,
Compare,
v. State
life;
argument
Williams
strength
05-86-00439-CR,
(Tex.App.
No.
Dallas Court reversed as
— Dallas
1989)
February 1,
pending
PDR
delivered
Accord: Woods
(former
given;
1989)
“curative instruction” not
(Tex.App.
329-340
[14th]
— Houston
con
PDR;
prosecutor mentioned
Howell
4(b),
“think
duct
under
told
PDR
time
at 518
[1st]
— Houston
number,
noting
of this
Considering
not contribute
the selection
all extant factors and
term
"exactly triple
suggests
experience
the minimum sentence of
that it is at least
and our
*9
Id.,
years,"
Houston
Court
unable
five
equally probable
[1st]
did.”
at 82-83.
say
instruction did
one-third flat time
"the
State,
serve,
(Tex.App.
Nos. 2-86-
long
about”
defendant would
Worth
how
— Fort
argument
“confusing,”
light of
2-86-073-CR,
so in
April
delivered
036-CR &
harm).
“mid-range sentence” no
The con
State,
v.
1989)
Johnson
pending;
PDR
indecency
a child en
viction is for
with
1989)
(Tex.App.
PDR
S.W.2d 788
— Dallas
conviction;
prior
although not
by
hanced
State,
refused;
Woods
9.
to,
good
gets
time.
“they
all that
conduct
Legislature
in that
then he
what the
means
stand
say
Again,
gets
is
he
a chance and all he has to do
about this
we want to tell
gets
it,"
years,
and
twenty
but he
all that time
serve
don’t want them to consider
law but we
your
eligible again
children.
to see one
he
thought
pa-
need to touch
counsel
role,”
“at least we
*
* * *
easy thing
viz;
send someone
It is not an
$10,000
put
penitentiary
for life
to the
gets
eligible
after he
He will become
"...
[this child]
think about
[Y]ou
fine
them....
equal
good
of his sentence.
time
to one-third
people
about
like her ... and think
now and
* * *
*
good
conduct time and think about
eligible to be
a man is
the fact that
[But]
his
you
Has this defendant learned
think about:
parole doesn’t mean that he will
considered for
past
you going
are
to let him
lesson in the
charge
you,
Judge’s
as the
tells
make
more time.
out one
guess
try
speculate
you
or
or
cannot consider
you.”
you
bless
all and God
Thank
long
serve on a
how
this individual would
sentence.
grievous
sufficed in Roll
One
misstatement
11.
give
you
the sen-
should
him
I would submit
ing
— Dallas
you
that’s
deserve[s]
tence
think he ...
pending:
PDR
you
go
do want
he will
down on....
[I]f
judge
has instructed
[that]
You know
”...
prior convic-
time for these
to add some more
to serve
you
... will have
this defendant
put it
year
would
for each conviction
tions—a
numerical number
least one third of
*
*”*
up
eight years].]
him,
years,
give
twenty
you
years that
most,
eligible
before he
whichever is
prosecutor
admonished
To that end the
10.
punish-
you
parole.
that when
assess
Consider
jury:
this case."
ment in
of formu-
has some kind
counsel]
”...
[Defense
original).
(emphasis in
at 835-836
see if he will
at him and
Throw that
la....
a Rose "cura-
get
when he
included
can
time
In Escobar the
that so he
handle
statutory
you give
placed
him what
ahead
gets
penitentiary.
If
tive
instruction” —
4;
argu-
thing, maybe
right
there
you
instruction dictated
do the
he deserves and
alluding
sen-
by prosecutors
thing,
give
easy
him life
ments
... and
not the
defendant,
coun-
fine,
you
and releases
know when he
tences
penitentiary
then
and a
instruction;
addressing
if he
sel for
eligible.
gets
down there and
He
to sit
*10
5)
1989)
PDR
20,
(slip opinion at
05-86-00037-CR, deliv March
App.
No.
— Dallas
barely
26, 1989),
pending.
April
prosecutor
ered
instruction,
alluded to the §
out a note
jury
sends
Patently when
life
to return a
going
you
“I’m
to ask
sort related to
inquiry of some
making an
law
got
parole
sentence. You have
are then and
jurors
that
parole, it reveals
charge to look at.
He deserves
in that
“considering” the
“discussing” and
there
give
you can
him. Unfortunate-
all that
842,
State, supra, at
v.
subject. Hawkins
law,
is
you can do
ly, under the
the most
State, supra, at
Rodriguez v.
844;
843,
you
you know that
a life sentence. And
just
that and
jury “did
(apparent
732-733
it,
do
you
do whatever
want to
with
can
clarification”).
im-
Such an
sought further
going
you
ask
I’m
but that’s what
analysis cannot
harm
portant factor in the
case.”
do
has
jury
Whether
easily dismissed.
be
return,
so to
of no
slip opinion,
point
at 6. Nonetheless
progressed
note,
punish-
viz: “We
need clarification
of “risk that
speak,
sent a
in the sense
life, 99
applied to
parole options as
extraneous consider-
on
ment will be based
also, e.g.,
ations,” years
sentence.” See
circum-
years,
depends
at
State,
Rodriguez
ap-
762 S.W.2d
case. But when
given
of a
stances
(“Please
1988)
Antonio
point,
for
passed the
reasons
pears
— San
begins ‘you may con
clarify
para,
punish-
finding
justify
and to
no risk
parole
existence of the
law
sider the
subjective view
must be more than a
ment
”) punishment
set
good conduct
time.’
prior
of the offense and
of the facts
aside,
grounds;
granted on other
PDR
Satterwhite, supra.
criminal record.
Hawkins v.
1989) (“Any possibil
(Tex.App. — Beaumont
sentence?”) punish
ity
with a life
in,
not necessar-
factored
Also
be
vacated,
ju
Similarly,
ment
PDR refused.
note,”
“jury
argument or a
ily related to
“punishment
for
ries want definition of
finally assessed. Both
the term of
Garcia v.
life,”
1988 WL
features are found Williams
(Tex. App.
No.
01-87-
[1st]
— Houston
supra.
8, 1988)
00708-CR, delivered December
indecency
Williams
explana
The offense
(slip opinion
pending;
PDR
(touching
genitals);
her
a child
a ‘life’ with
tion of “the differences between
”
building
burglary of a
for
Williams
years,’
conviction
sentence and ‘99
enhancement;
in-
the court
alleged for
years and
supra; whether “terms 99
finding
prior convic-
upon
structed that
to be one and
life
considered
[are]
assess the defendant’s
(Tex.App.—
“will
v. State
same,”
tion
Weatherall
pro-
range
punishment somewhere in
05-86-00003-CR,
delivered
No.
Dallas
(see
P
judge
of the
“We need clarification
and the
the
responded
sent out
three notes
understanding
charge).
the court had instruct-
It is our
to each. Thus
7 of the
among yourselves"
eligible
ed the
"not
discuss
in 20
imprisonment
for
life
served,
long
imposed
sentence
will
how
years.
this correct.”
Is
they may
parole law and
“consider”
but that
good
(The
charge,
paragraph
taken
seventh
cetera,
for
et
and counsel
conduct time
instruction,
4(a)
paragraph
a §
from third
matters.
commented on those
both sides had
alia,
jury,
that “if the
inter
informs the
defen-
asked,
Verbatim,
“If a man is
the first note
imprisonment, he
term of
is sentenced to a
dant
term,
eligible
parole?” The
life
is he
eligible
until
not become
will
permit
responded
do not
judge
that “our laws
equals
of the sen-
one-third
time served
actual
question.”
your
answer
the Court to
years,
twenty
whichever is
imposed or
tence
less,
“When was
note wanted to know:
The second
good-conduct
consideration of
without
judge
answered
of release?"
his date
earn.”)
judge
may
instructed
time he
is not contained in
...
“if the information
carefully”
paragraph of both
last
to “read
por-
during
admitted
exhibits
are,
course,
They
charge.
page 1 and 2 of the
...,
is not available
such information
tion
you.”
discuss” instruction
“do not
the traditional
"you
are
statutory “you
consider” but
question
insistent and
became more
The third
instructions.
not to consider"
revealing, viz:
law;
is,
vided by
eligibility
confinement
parole,
effect
cases cited
*11
life or
any
for
term of not more than 99
jurors
in note 24 post demonstrate that
are
years
ante,
years[;]”
or less than five
see
willing
higher
on a
settle
term
than the
304,
10,
summary
argu-
nn. 9 & for
minimum
but within limits of
formula.
4(b),
ment
jury
under
and at 305 for
§
also,
State,
e.g.,
See
725
Jones v.
S.W.2d
note.
1987) PDR
(Tex.App.
770
refused
— Dallas
(prosecutor
jury
literally
The
asked the
to as
jury found enhancement
as
sessed
term of fifty years,
a sixty year
which
sess
sentence to assure that
“mid-range
Dallas
as a
Court characterized
twenty
defendant would serve at
least
sentence;”
gave
it
that fact considerable
years compensating
possibility
for the
weight
finding
a 4 instruction did not
§
that).
parole,
jury
exactly
and the
did
Id.,
punishment.
contribute to
at 298-99.13
point
Houston
Court makes the
[1st]
State,
But see Barreda
1
v.
760 S.W.2d
explanation
that even without an
from
1987)
(nine
(Tex.App. Corpus Christi
—
capable making
counsel
are
that
years
“roughly
for sexual assault
in middle
themselves,
fixing
calculation
a term
range”
does
of contri
possibility
indicate
years
compensate
parole eligibili
for
bution) PDR dismissed.
ty
it calls the “one-third
rule”
—what
discuss,
As
later
con
we
current
271,
State,
Wheatly
764
v.
S.W.2d
at 273
sophisticated
text of a
4
§
1988)
(Tex.App.
no PDR.14
— Houston
jurors, any notion
years
that a term of
punishment
higher
an
When
is
than
less
permitted
somewhat
than maximum
parole eligibility, however,
outer limit on
amounts to
“break” for defendant
is
Cohen,
speaking through Justice
the Hous
24,
passe’.
post,
See
note
at 312. When
ton
has
the excess to an
attributed
[1st]
early
parole
release from confinement on
is
aggravating circumstance rather than to
implicated
jurors may comprehend
that
instruction, particularly
4
where
possibility,
enough
say
it is
not
See,
counsel never mentioned the latter.
no
instruction made
contribution
(indicates
e.g.,
State, supra
Villanueva v.
punishment merely
the term as
because
crime);
perpetrators
abhorrence for
“mid-range”
poten
sessed is
relative to the
(No.
State,
Black v.
—Amarillo
1989)
although
January 30,
pending,
PDR
6
eligible
argued that he
for
appellant
was
be,
course,
may
There
still other con-
surrounding
probation
facts
and the
siderations,
however,
rarely,
found so
“hotly contested”
offense of murder were
categorized
have not
them.
heinous,”
particularly
because
“not
deadly
jury finding
weapon.
is a
of a
One
punishment
thirty years
assessed
at
determining
Aside from
which instruction
effect of
there was a reasonble doubt as to
may
4 is
appropriate,
under
seem
§
instruction;
in
opinion,
its
bearing
ju
have some
on deliberations
Amarillo
not
Court did
even address
determining punishment.
rors
But
contention,
errone
and concluded that the
bearing
reasonably
should be
rather than
ous
did not
to the
instruction
contribute
example,
erroneously
For
inferred.
Nu
punishment. Slip opinion,
3-4. Similar
at
State, 769
(Tex.App.
nez v.
599
S.W.2d
— El
ly,
(Tex.App
see Sanders v. State
. —Texar
1989)
pending, the
Paso
PDR
offense
86—006—CR,
kana Nos. 6—86—005—CR& 6—
assault,
aggravated
found use of a
18, 1989)
January
pending
PDR
delivered
weapon
punishment
deadly
and assessed
at
rehearing
PDR re
on motion for
after
years.
finding
and one half
In
two
harm
fused;
(Tex.App.
Patton v. State
— Fort
error,
less
the El Paso Court was “further
2-85-290-CR,
March
Worth No.
delivered
by
persuaded
judgment
the fact that the
30, 1989).
finding of
this case ... carries a
use of a
However,
(Tex.App.
v.
deadly weapon,
Jarmon
State
requiring service
at
2-86-140-CR, delivered
assessed,” —Fort
No.
one third
sentence
Worth
least
1989)
pending,
PDR
the court
“potential
April 27,
so that
harm” was
the “two
was
mandatory
concluded
fact that the defendant
month difference between
Black,
Dissenting
day.
stop
out
You can’t
that.”
15.
Justice Mirabal ob
some
served,
reasoning
"According
employed
punishment
demand maximum
to the
38-39. Some
majority,
by
every
regardless: Commenting
time a sentence is as
will not
that life
parole charge
years
paroled
60
“enough”
sessed at over
and the
defendant could be
in that
view,
given,
asked,
can
twenty
there
be no harm.”
her
years, prosecutor
“Isn’t that sick
punishment
maximum
is “an indication that
ening?”
urged jurors
impose
the maxi
Slip
mum,
suffered harm.”
at 1 and
“Why
inquire,
then write their senator to
Later,
Cohen
in Villanueva Justice
discount
(Tex.App.—
give
v.
can’t I
more?” Joslin
05-85-01222-CR,
maximum is
ed a like statement that
indicative
March
delivered
Dallas No.
State,
of harm made in Urbano v.
33,
28,
thing
1989)
pending.
is no such
PDR
“There
1988)
(Tex.App.
at 39
PDR
[1st]
parole,”
life
Woods v.
— Houston
as
without
significant
explained
pending; he
"the
factor in
(Tex.App.
[14th]
S.W.2d
at 283
— Houston
analysis"
harm
there was that both counsel
PDR;
1988)
thing
life.
is no
no
‘There
such
Yet,
argued
in both
law.
Black
years,
insanity.”
sixty
that is
Howell
More than
assumed the
under
Villanueva
court
(Tex.App.—
S.W.2d
at 518
assessing maximum
stood that
refused;
1988)
cases
see also
PDR
Houston [1st]
Black,
delay
eligibility
“parole
date.”
would
Part II B ante.
discussed in
Villanueva,
4;
at 680.
analysis is that
16. We observe the
flaw in that
assumption,
reviewing
Given that
4(a)
is sentenced
provides, “If the defendant
§
reasonably
might just as
believe that
years,
he must serve
less than six
by
to term of
exhibited
react with the sense of frustration
eligible
parole.”
Urbano,
for
years before he
directing
least two
prosecutors.
atten
some
there
instruction,
when
Good
time is
available
conduct
he told them to have
to the
tion
finding
weapon.
room;
deadly
See
closing
is an affirmative
he
aloud in
it read
42.18,
8(b).
exclaimed,
get
Article
“He’ll
reminded them of it and
Id., slip opin
eligible
probation
“technically
has
assessed.
Early
instruction,”
ion,
correlation to the
at 3.17
See also
[§ 4]
S.W.2d
“If the jurors
[1st]
had
Jarmon be
desired
— Houston
supported
(application
probation
by
ten
granted
they
probation,
knew
could
"quality” witnesses;
jury assessed six
impose
ten
a sentence
not more than
confinement, making
eligi
defendant
years;
way
in no
years)
pend
ble for
after two
PDR
eligibility
proba-
affected Jarmon’s
ing; Bonner
(Tex.
obviously persuaded
tion. The
1989) (“candidate
App.
argument
[1st]
one who
State’s
— Houston
(five
probation
years)
minimum sentence
participated
planned
robbery
in a
armed
given
relatively light
under these
facts”
resulting
granted
in death should not be
“evenly
sentence
ex
divisible
three and
probation.”
actly triple the minimum
sentence
five
Id., slip opinion at 4-5.
in the
Comments
years”)
pending.
PDR
dispositive;
first sentence are true but not
deduction
second
be.
We conclude that in a
case a corre-
*13
a
probation
lation between
and
4 instruc-
§
as
Our view is that what is not seen
may appear.
tion
may
appar
correlative in one case
more
be
Fonseca v. State
ent in
Thus in
another.
in
Finally, there is that unusual situation
(Tex.App. Corpus Christi No. 13-86-011-
which an accused is convicted one trial of
—
CR,
February 9, 1989), Appel
delivered
involving
more
or
violent offenses
mul
two
refused,
lant’s
victims,
PDR
where the offense was
tiple
and the
various
assesses
assault,
State,
felony, ap
sexual
second degree
See,
e.g., Johnson v.
punishments.
4(a)
plication
probation,
1989)
along
for
with a
(Tex.App.
made no contribution to the is an First “rebuttable presumption” the in “a follows C judge structions the trial Rose leading opinion rehearing Rose, manner presented.” citing to, lay approach did not down a methodical Cobarrubio v. for, pretend guidelines nor to formulate Analogizing (Tex.Cr.App.1983). “instruc making cases that determination disregard,” plurality tions to deemed it “Rose error.” presenting separate See significant” “particularly the “last J., Teague, at 557. are now We word” was the “curative instruction” tradi undertaking rehearing do that which on Rose, tionally given before advent 4.§ Rose the Court purport did do. apply at 554.22 But to such a “rebuttable to Rose error presents Examining plurality presumption” knot review acknowledged, problems. note ty that at outset people people get give know is 20 us the maximum [and] don’t the most can rehabilitate him *15 grace period way years." jury: Vernon Lee As Later he also told the from Rose.” ante, argument we have that kind of "... these these three sen- determined All three cases—all inducing jury one of of going is indicia consideration at the time. The tences are run same parole assessing punish- say the law instruction in years.... most life, do is we he can 20 When such, it the life, ment. As adds to the burden of away for we don't send someone State. life as we all know it. We mean a life mean sentence, know, sentence, you as is life course, is, competing There of that a 22. notion years. get going out 20 And all he’s that’s entirety. will consider in its Co- years.... is of 20 All can do this is we J., (McCormick, State, supra, barrubio v. at 753 can, society long protect and a as we dissenting). 4§ Confronted with declarations $10,000 long as life and a fine is as sentence granted parole having been leave about law and years. for. 20 And 20 we can do it That’s existence, jurors must be to consider its rational attempted murder case which on being perplexed by they not told are to "discuss” time, we send a runs the same can at they which are allowed to “con- content of that message. years for mis- ten criminal [And just justices as some admitted were sider”— in Rose v. chief].’’ 832, State, at and 850 724 S.W.2d 846 however, 1986). (Ordinarily, 7, (Tex.App. ante, 302, already pointed n. 21. As out at —Dallas singularly complete and 4 is §a prosecutors point “exist- both made the about any part charge, independent of a so of other referring parole our law eo ence” without matter.) nothing else bears They prior criminal record nominee. traced his custody so, rely being “on plurality released from federal not from parole,” Even was content committing solely presumption;’’ still in offenses while it went other on a "rebuttable being couple TDC released from and bolster it with what that status and then aggravating long serving imposed; perceived circumstances. sentence to be before Ibid, argument, among (presumption "cur- asking closing that followed final for life in "particularly give along hei- with prosecutor that "it would ative instruction" said reasons the record). prior criminal time to nous facts” and people maximum at the TDC the
3H
tionally
81(b)(2)
to a
that
Court
appellate
itself mandates
submitted
Rule
accepted
years,
giv
over
harm
error in
“presumption” of
from
ing
Mallory
4
instruction.
v.
further
instructed that
“You are
566,
(Tex.Cr.App.
at
case,
752 S.W.2d
569-570
determining
in this
1988); see
738 S.W.2d
Hargraves
among yourselves
you
not to discuss
are
743,
1987)
(Tex.App.
required
PDR
at 749
be
long
how
will
— Dallas
defendant
it
decide to
you
refused. From that mandate
follows
sentence
to serve
within the
impose.
matters come
presumed
to understand
Such
Board of
jurisdiction
exclusive
“may
the existence of the
consider
Pardons and Paroles and the Governor
de
good
time” as
law and
conduct
and are no concern
the State Texas
preceding
paragraphs of
clared in the
four
yours.”
4,
consid
yet also understand it is
may
er
extent”
time
be
“the
conduct
554,
generally,
at
at 532. While
effect,
awarded or “the manner”
law
presumptive
rejected
its
actually applied to defendant.
that kind of “cura-
factor, among
proper
tive instruction” is a
er-
must demonstrate that the
The State
others,
analysis
er-
in a harm
for “Rose
say
appellate
ror is harmless. To
that the
ror.”
presumption” may be
“rebuttable
utilized
records,
As is
in our
how
often shown
up opposing “presumptions.”
at once sets
ever,
temptation
“jurors cannot resist the
appellate
presumption”
An
“rebuttable
laws,”
536;
at
to discuss
a rea-
alone does
demonstrate
(Tex.Cr.
Ready v.
terms can
of sheer
sonable
that ‘B’
doubt
made
contribu-
punishment.”
tion to
tion).
With without other facts of
treating
(his emphasis).
case some
courts are
agree.
at 311
We
they regard
“militating
facts
as
Beyond that, in
of a
4 instruc-
context
“ample
favor of a harsh
evi
sentence”
slippery
tion “heinousness” is a
indicator
gauging
jury
how a
evaluated conduct
support
findings
jury’s
dence to
on
assessing punishment.24
of
punishment,” e.g.,
754
Lancaster v. State
words,
aggra-
to find
facts are
so
493,
1988)
(Tex.App.
496
S.W.2d
at
— Dallas
vating
punishment
appropriate
is
refused; “circumstances
support
PDR
[to]
simply
satisfactory
conclusion.
sixty-year
sentence assessed
State,
237,
'jury,”
at
Baker v.
752 S.W.2d
1988)
(Tex.App.
Worth
PDR re
— Fort
vein,
plurality opined,
In like
the Rose
fused;
“overwhelming proof
guilt,”
of
“Compounding
surrounding
these facts
State,
307,
308,
v.
Diaz
at
S.W.2d
subsequent
appel-
offense and
arrest was
1989)
pend
(Tex.App.
Antonio
PDR
— San
record,” id.,
lant's criminal
at 554. “These
ing. Yet,
a mat
sufficiency of evidence is
convictions,” according
opinion,
to the
consequence
ter of little
in a
er
harmless
certainly
“most
contributed to the
Satterwhite, supra,
analysis.
ror
486 U.S.
jury’s
punishment,”
assessment
ibid.
at
at
108 S.Ct. at
L.Ed.2d
However,
that contribution to
(question
beyond
suffi
“does not establish
a reasonable
whether evidence
erroneously
doubt that the
instruc-
finding
support
cient to
but whether
jury’s
made
punish-
tion
no contribution
proved
error did not contribute
State, supra,
v.
115.
ment.” Olivarez
at
115;
verdict);
State, supra, at
Olivarez v.
Arguably,
in Rose consideration of “the
State,
generally
supra.
see
Harris v.
good
con-
existence of
dissenting
supra,
Diaz v.
Justice
have just
duct time” could
as well contrib-
reasoned,
Carr
motivating
to assess “the
uted
(evidence
“...
If
‘A’
considers
sentence,
maximum
life in the Texas De-
(existence
guilt)
‘B’
Corrections,”
partment of
ibid. Exhibits
time)
assessing punish-
conduct
“prior
record” are
criminal
available
ment,
beyond
scrutiny by jurors.25
a rea-
that does not show
eligibility
judges
dis
to believe that heinous
without affect
Some
seem
—and
ness,
jurors.
sophistication
hatefully
shockingly
counts
nature of
evil
offense,
compelling
jurors
assess
supposition
is certain to motivate
A more
delay
years,
naturally
"attempt
long
thus
confinement at a
term of
thus motivated
will
clemency powers or to avoid the
the exercise of
find
error"
when a
verdict
"Rose
harmless
See,
granting
increasing pun-
possible
e.g.,
expectations.
fails to
their
reflect
own
grant-
anticipation
it will be
[that
ishment in
ed],”
(Tex.App.—
Johnson v.
at 351
Sanders
(seriousness
1989)
pending
Beaumont
PDR
finding
(Tex.Cr.App.1978), and other courts are
primary
"clearly
offense
demonstrates” instruc
(or
by argument
own
led
their
initiative
doubt, i.e.,
tion harmless
a reasonable
counsel)
figure
4§
can and do
out the
“The
declined to assess the
See,
punishment accordingly.
State,
formula to fix
confinement,
only a
life
but instead awarded
115-116;
e.g.,
supra,
Gil
Olivarez
$20,000.”);
fine of
Rob
term of 20
and a
109;
State, supra,
ante
see also
at 305-06.
Paso
erts v.
“... Send its deliberation life, pertain- he’s case numbers penitentiary, identify him to the the judge send female,” com- Okay. So and the court there for life. going ing to be to “the do you going to question plied. is what are get you really can’t person that with a he jury found appellant, Against rid of. punish- weapon and assessed deadly a used Now, just going to prosecutor’s for murder of Sandov- thirty years ment at away, get rid just throw him y’all want murder of Kahl. life for sky, and ultimately come him, people but these of ten Licker, it assessed For out; you is do want question $10,000 for fine of and a years confinement they come out way them to come out probat- Sandovsky, years ten death you or do want penitentiary from the $10,000 death of Kahl. for ed and a fine they’re going to them to come out so society, so we don’t to fit be able any more. That’s like this any problems causes in these granted review We got to issue; you’ve that’s what the hard appellate court to determine whether determine.” applied properly correctly construed and appellant also part, attorney for For his unconstitu 81(b(2) finding that the Rule objectives punishment, talked about made no contribu 4 instructions tional § opinion, jury that in his candidly told the In that punishment. verdicts on tion to the worth, go [appellant] should it’s “for what “presump rely solely on a it was content suggested He for- penitentiary.” traditional jury followed tion” that mula, viz: instruction,” reasons for “curative Rose ante, conclude the peniten- II we you [appellant] “If sent stated in Part go down fell into error. tiary years, for 5 he would know, something on there’s there. You appel- 81(b)(2) mandates Because Rule you under- parole. Y’all read that so will from error of harm presumption late better, go down for it but he would stand instruction, and because giving a § send him down ... years ...— let’s error is that the demonstrate must goes against the girl, just because in the harmless, of harm presumption I somebody girl, don’t grain for to hurt appellate “rebut- over an prevails former dealers; drug but on the are care “a follows presumption” table ten-year sentence man, give him a let’s judge the trial given instructions it, so probate and then penitentiary Ante, That a C 1. presented.” manner penitentiary, gets out of when he is, how- was instruction” “curative full 5 he serves his whether analysis harm ever, factor proper him. what, not loose. We’ll watch he’s suggests that record unless the if he ain’t probation He’s still in as- parole law did indeed consider up, probation his act straightened Ante, 2. Thus at C sessing punishment. go can down and he can revoked indicia of the record must examine another ten.” conducing to affect reasonably factors jurors in their average rational minds of prosecutor the last closing argument Ante, at determination work rehabilitation would doubted notion killers, disputed the kinds of these causes, con- the Court instant “dope dealers” In the may be victims that because jury assessed situation: urged jurors a rare fronts apply, different considerations defen- against two punishments stay disparate out get out and them tell in murder- played part each for the dants proposed appellant’s rejecting Dallas deter- Manifestly the ing victims. two assessing life sentences formula and degree respective culpa- published opinion. mined the of their firmed in a Gaines unequal.30 bility to (Tex.App.—San An *20 1987). nio every germane We have reviewed revela- in tion this record and are satisfied that light On in remand for reconsideration of they jury adversely did not influence the to Rose, Court, jus the Antonio one San with in appellant assessing punishment. concurring, tice concluded was by “influenced law instruction” judge imposed The trial his own limita- “statutory because the trial submitted the law; commenting tions on about de- (last paragraphs curative instruction” two objected any fense counsel to instruc- 4), concurring justice of dis which stayed tion and the bounds com- within credited), offense was a traumatic ment; pleaded State persistently for violence, crime of assessed “less cases, in life sentences all four while coun- possible range pun than one-third of the probation sel for Licker focused on and ishment,” again judg and affirmed the appellant for counsel conceded his client ment. to (Tex.App.—San v. State penitentiary due some time in the Gaines was An 04-86-00199-CR, nio killing Kahl No. delivered Janu requested but follow 18, 1989). case; ary probation Accordingly, granted other in we with its appellant’s petition discretionary got pro note the asked for and case se Kahl; review, relating its and the cause numbers to assessment was submitted against years counsel; appellant pro- appointed of life and ten brief of his court against Licker for the death of Kahl bated State relied on its brief below. For reasons appears jury made a judgm to reflect the reason- post discussed we will affirm the ably assay criminal responsi- consistent ent.31 each, 30, ante,
bility of see n. as does ten confinement, thirty years respec- and cases; tively, in the Sandovsky unlike a victim, year Crystal, old ten female “pattern” pa- indicative of consideration of away eight ran home o’clockat from about role, 308-310, ante, nothing cf. cases at night began hitchhiking in a residential and suggests year here life and thirty Antonio; section of San after she was any terms have correlation. male, Paez, picked up by and adult one Thus we determine and are able de- to agreed place to “make sex to beyond a clare reasonable doubt that § stay,” driveway, got into a out pulled he no contribution instructions made shortly three appellant; and talked to all punishments. judgment will be af- occupied formerly house a vacant firmed. by Paez sexual Paez. First had deviate sexual with her intercourse and intercourse B left; appellant engaged and in sexual then Gaines v. State left, returned intercourse and but later pillow, flashlight, and had aggravated with and This a conviction sexual blanket assault; again; and her he left assessed intercourse with fed judgment food. The victim twentyfive years. The was af returned with some merely appellant with Kahl sketched out the factual left but soon returned 30. While guilt (Id., light findings supported bludgeoned situation at 10- and her death. both evidence, 314, may by pertinent see ante at detail to his scheme to that Licker testified in safe, Sandovsky theft of his but confront about summary and of Our of the facts of the case killing plan that State, him. denied his involved he unpub- primarily from the the evidence is taken 5). (Licker slip opinion Tex.App. Court, supple- San lished of the Antonio Furthermore, accomplice admitted there was testimony from of facts mented statement (3 819); plan S.F. he to kill woman never understanding helpful certain we deem he armed and themselves testified episode positions aspects criminal and of the room, upstairs hammer waited in an with a resolving participants, the issue Sandovsky was "sent" in there some one 81(b)(2). Rule harm under death, him than beat Licker and going dog, departed premises happen “he’s here not the food to did,” way her home when a then and was on back to him for what he but on the for her police officer lookout proceeded reprise facts circum- stopped took her home around three rejected proba- appellant. She stances of morning. prompt made o’clock She tion, pleaded for “time to serve so that outcry to her mother. did,” on what he he can have time reflect “they” argument. made bit tried Paez Appellant was alone. Concluding, fifteen to she recommended codefendant, plea entered into a bar- acknowledged that twenty years, “whatev- pro- dire of gain on the eve trial. Voir *21 up again urged and you give you” er is to jurors Appel- is not in record. spective our him them to “make serve time.” The State presented up set a of lant witnesses to sort 4(a) pa- never to and, alluded instruction testifying § alibi defense on his own behalf, role. committing any denied offense.
However, on rebuttal the State called Paez
twenty
an hour and
jury
The
deliberated
implicate appellant; during
further
to
seeking
minutes
additional infor-
without
he
he
crossexamination
said that
had been
returning
mation
its verdict of con-
before
promised
part
epi-
for his
ten
twentyfive years.
finement for term of
sode.
Appellant
eligible
applied
and
probation.
punishment
At
the State reof-
granted review
this cause
We
rested;
appel-
fered all
evidence and
appel
principally to determine whether the
his
lant offered witnesses as to
character
correctly regarded
late
two
court
last
being
abiding.
peaceable
and law
The
4(a)
a
paragraphs of
instruction as
§
application
trial court submitted his
“statutory curative
That con
instruction.”
jury and,
probation
objec-
to the
without
“aggravated
that
sideration and
sexual as
tion,
4(a)
included a
instruction.
It did
§
violence,”
of
that
sault is a crime
the victim
not
in-
contain traditional Rose “curative
expressed
safety
“fear for her
as to
struction.”
suffer
co-defendant”
“continues to
opening argument.
The State waived
trauma,” brought the appellate
from the
appellant
At the outset counsel for
told
pun
“assessment of
to conclude that
he had
elected to have
assess
possi
less than one-third
ishment at
requested
“to
punishment,
jurors
grant
punishment
no fine does
range
ble
with
probated
asking
[sentence],”
his motion for
[jurors]
influenced
reflect
him
they “give
that
no more than ten
Slip opinion, parole law instruction.”
years.”
years, anywhere from
to ten
five
3-4.
justify
request,
He went on to
that
assur-
disagreed
concurring
justice
The
ing
probation
jury that
revoked
statutory
here
“the
instruction submitted
TDC
will be committed to
for the
same
instruction the
is the
‘curative’
period
imposed.
Counsel
Appeals
‘particu
found
Court of Criminal
4(a)
pa-
never
instruction or
alluded
Rose,”
larly significant’ in
and referred
role.
opinion
the court in
the earlier
Olivarez
jurors
part
For
asked
its
(Tex.App.
at 115
previously
evidence
admitted
reconsider the
Antonio
no PDR. For reasons
—San
punish-
during guilt
phase
told
2, n. 23
under II C
and accom
stated ante
prosecu-
“entirely up
you.”
ment
311-312,
concurring
panying text at
punishment range a first
tor restated
correct;
de
substantially
we have
view is
range
degree
explaining
a wide
felony,
“no
part
termined that
of §
take
of the case
enables them “to
the facts
fairly
reasonably
can be
characterized
appropriate
and find
slot
between.”
”
regarded as ‘curative.’
Ibid.
going
“all
are
you
She knew
have taken into ac-
happen
well
going
consider what
mentioned in the
forget
the other matters
Defendant,”
asked
count
below,
proceeds
but this Court
twenty
now
assessed
premise
jury may just
on the
that a
$10,000
years plus
judgment
fine. The
likely take into account the
4 instruction
unpublished
was affirmed in an
opinion.
and, therefore, examines the
“for
record
Hooper
pant, perforce and no indicia of factors pickup; appellant in fol- away drove his inducing jurors to consider law. apartment lowed in the wrecker. At his appellant prior Thus that had no criminal complex, pulled assigned Elkins into his give record and that the trial court did not space; appellant up parking drove behind ger- never a “curative instruction” becomes pickup, got and blocked his out with inquiry. mane to the pumped shotgun, loaded a round and it into Accordingly, we are satisfied that chamber, accosted Elkins with threat- appellant’s applica- jury rejected fact the ening expressions then struck him and probation and assessed tion for face neck the barrel of about the and with higher sought by the State somewhat than lights complex gun. When operating under not indicate it was does on, said, appellant you “I came know where 4(a) Thus influence of the instruction. § get you.” Hol- I will come back and live. to declare be- determine and are able Calhoun, through “I lering out to am not instruc- yond a reasonable doubt § appellant got in the you yet,” wrecker with to the verdict on tion made no contribution and left. judgment will be af- punishment. The
firmed. did alleged appellant indictment immi- intentionally knowingly threaten C by using Elkins bodily injury nent
Hooper v. State There weapon, namely a firearm. deadly motions, dur- pertinent pretrial are no aggravated for as conviction This is a “true,” refer to ing dire counsel did not repeater allegation voir sault; finding a coming County, guilt to Harris In its verdict of found tions law. 1975, being deadly weapon. offense in committing used a another eight years in then sentenced to 1977 but objections, punishment, At over several committing the instant being released and one proved up pen packets: two the State highlighted, suggest- offense he which alleged for theft the other notwithstanding of friends ed that views enhancement, aiding felony escape County appellant must Montgomery from of- contemporaneous as as four other well County. in Harris He pay for he did Defense called three “character” fenses. instruction, re- then addressed witnesses, including Montgomery County urged jurors margin.33 He produced sheriff, favorably deputy who testified that “the message, and concluded to send appellant. Appel- about circumstances in this justice form of allowable 4(a) objections several lant leveled upon particular case based the facts instruction.32 packets twenty penitentiary also those argument. opening waived The State Department of Correc- the Texas appellant explained he had Counsel dollar fine. tions and a ten thousand positions certain for technical rea- taken you.” Thank sons, testimony summarized of witnesses During over some two its deliberations vouching appellant, discussed “stale” “Jury re- hours the sent out a note: sug- pen packets convictions pen packets study.” It assessed quests reformed, gested client had and con- his punishment.34 maximum cluding thought high with the that a sen- away any hope,” tence “take he would years. asked for two granted in this cause to We review prosecutor by showing closed he had *23 asserts, whether, as the State determine
proved repeater allegation, requested the concluding crime, appellate court “erred espe- to think of victims of pa an instruction on Elkins, that the inclusion of cially summarized and commented beyond any harmless pen pack- role was not critically on offenses reflected [sic] ets, urging PDR at l.35 noted the short between convic- reasonable doubt.” time * * * * alia, doing again. say appellant protested para- Don’t that 32. the third are out Inter "unfairly particular you graph yourself case do not that de- if in this inform[s] preju- receive be to the maximum.... fendant ..would sentence this defendant harmful, play part you and and that should no to those dicial And I want to also refer back jury’s assessing punish- penitentiary papers.” in the consideration case,” judge sympa- ment in this which the trial Appellant timely new trial filed motion for you 34. thetically overruled: "I wish would deliver alia, alleging, Jurors entered into inter that "the argument legislature^]” to the parole law and discussed the a discussion of Defendant would be re- amount of time the referring charge reading “Also and 33. by quired assessed to serve on sentence defendant, charge, it states: That the if from the into considera- Further the Jurors took them. imprisonment, may earn sentenced to a term of and did consider tion and had discussions through imposed off the sentence time Defendant, paroled, would serve reading fact that the also conduct time. And award penitentiary considerably in the than less time charge: possible ’It's also from the by Because the court them[.]” the time assessed length will be of time for which a defendant hearing occupied, never might by was imprisoned award of was otherwise be reduced held, by opera- judge you was overruled parole. and the motion And also the has instructed pa- you may tion of law. consider the existence good conduct time. role law and extending appellate on Revising its brief 35. gentlemen, the defendant knew Ladies and appeals, the State sur the court of remand to veyed tices, happened people law. who break the jus by appellate expressed various views through past gone in the it several times He had opinions cannot that “these and remarked anyway. into our did it And he come and he it_ confu is in a state of resolved the law [and] county did And the next time ... See, e.g., at Brooks committing sion.” 3. violent of- you about ex-cons hear 1989) they doing [1st] S.W.2d 481 you out? think: What are fenses and — Houston PDR; J., Payne (O’Connor, dissenting, they get Why such little time and now did grant review, this Court to alleges, State notes The indictment and the State “problem” “placing] proved, 15, burden on that on or July about the State and at the same applying] time appellant shot and Hayes, killed Edward Jr. presumption,” posed by Justice O’Con handgun, with a previously, Brooks, supra, nor in “heartily 13, 1982, September appellant had been concurs in judicial her assessment of the burglary building. convicted for of a Bare quagmire which has followed this Court’s primary capsuled facts of the offense are PDR, decision in supra.” Rose v. below at to which we recognizes 10. It appellate that the accompanied add grapple “was forced to yet with issues not by sister, his uncle an appel- whose aunt of fully by resolved this Court.” lant, had by been killed a brother of de- just ceased some three hours earlier grappled across
We have
with those issues and
Silkwood Street.
opinion,
others
this consolidated
and be-
lieve this Court has
most if not
resolved
all
pretrial
There are no
motions of conse-
Having
of them.
every ger-
also reviewed
quence; general
voir dire was not taken
mane
revelation
this record and evaluat-
reporter,
the court
requested
nor was she
light
ante,
ed them in
expressed
of views
questioning
individual
pro-
transcribe
taking
into account the “combination spective jurors.
of factors”
considered
proposed charge
con-
court,
prop-
we are satisfied that the court
4(a)
part
tains a
instruction and a
submit-
erly
find,
concluded it was “unable to
be-
ting
deadly weapons.
the issue of use of a
doubt,
yond a reasonable
that the errone-
Appellant
both,
objected
particularly
ous
made no contribution to the
paragraph
last
of the instruction. There
punishment.”
was no Rose
instruction.”
“curative
Accordingly,
judgment
will be af-
burglary
alleged
addition to a
offense
firmed.
enhancement,
proved up
the State
three
D
convictions,
misdemeanor
B
to wit: class
theft,
1984; assault,
1984;
October
October
Payne v. State
disorderly
conduct in
November
murder; finding
This is a conviction for
Appellant presented
character
two
witness-
“true,”
allegation
of a
conviction
reputation
es who testified that his
*24
jury
punishment
assessed
at life. The
being peaceable
abiding
good.
and law
judgment
unpublished
was affirmed in an
Opening prosecutor recounted evidence
opinion. Payne
(Tex.App.
v. State
— Dallas
convictions,
prior
05-85-01244,
called attention to the
No.
delivered December
special
1986).
deadly weapon
ju-
issue and asked
rehearing
light
in
On remand for
find
Court,
rors to
for enhancement and affirma-
generally
a divided Dallas
tak
issue,
tively
punishment
on the
ing
approach
rehearing,
and assess
the Rose
on
over
dissent,
vigorous
appellant
at life. Counsel for
tried to raise
beyond
held
a reasonable
reliability of records connect-
doubt that the error made no contribution
doubts about
ing
misdemeanors,
punishment,
again
prior
to
dis-
to
affirmed the
judgment. Payne
objectives
punishment
ed,
post; Watley
WL
certain" error did not contribute but to deter
see
01-86-00355,
doubt).
No.
de
mine
reasonable
[1st]
— Houston
appellate court believes facts
That an
prosecutor vouchsafed the records
prior
and a
criminal
an offense are heinous
“what
are here for:’’
turned
discuss
we
can-
propensity
violence
record shows
murder,
ju-
asked
he recalled facts
jury may have taken
out that a
not rule
impose
punishment
the maximum
rors "to
assessing
4 instruction
into account a
life,
§
case,
keep appellant
in this
which is
Indeed,
holding
similar
punishment.
just
long as
off of Silkwood Street
as
we
likely to assess maximum
just
as
views
can,”
photograph
possibly
to take
compensate
in order
jury room and “consider
deceased into the
possibility
parole.
you consider what to do with
him when
not men-
[appellant].” Parole law was
Arnold, supra, the
As we confirmed
argument
at all.
tioned
of harm mandated
appellate presumption
81(b)(2)
appellate
prevails over an
Rule
deliberate,
jury retired to
as
(cid:127)After
fol-
presumption” that
“rebuttable
as evi-
requesting exhibits “used
well as
given in
manner
lows instructions
of the tri-
punishment phase
in the
dence
ante, at
1. Here
presented.” See also
C
21-30,
al,”
being records of
numbers
note
opinion concedes their
even the lead
convictions,
separate
prior
it sent out a
considering
pa-
[jurors] were
“shows
possi-
inquiring,
note
“What is the earliest
charge,”
role instructions included
The trial
parole on a life sentence?”
ble
That
alone re-
Payne, at 586.
revelation
judge responded:
concurring opinion
a notion in the
futes
only
to consider
“You are instructed
is “cura-
any part of
you
received from the
the evidence
have
Moreover,
23, ante,
tive.” See n.
along
witness stand
with
exhibits
reinstructing
futility of
it demonstrates the
appli-
admitted into evidence and the law
applicable
“consider
the law
cable to this case which is contained
Charge” that
in the Court’s
the case ...
Charge.”
the Court’s
agree
already violated. We
jurors have
life.
assessed
dissenting opin-
diagnosis in the
with the
ion, viz:
an ad-
reply
The court’s
was not
“...
an additional
monishment
... but was
granted review in this cause to
We
to the
supplemental instruction
the divided
determine whether
charge to an-
use the unconstitutional
correctly
properly ap
construed and
Therefore,
question.
swer their
81(b)(2)
plied
finding
Rule
that the un
from the court to use
direct instruction
4(a)
constitutional
instruction made no
statutorily mandated unconstitutional
contribution
verdict
resolve their
the method to
only
considered
that the lead
compute
to ascertain or
quandary and
surrounding the offense and
facts
parole on a life sen-
possible
the earliest
“(revealing propensity
criminal record
and en-
could
reinforce
tence. This
violence),”
586;
concurring
Payne, at
*25
exactly that and
courage the
to do
“militates
opinion found no evidence
set out
the time calculation
to utilize
by
authorized
against
the full sentence
assessing punish-
offending charge in
law,”
jury followed the
“presumed” the
ment.”
inquiry
given
response
to its
instruction
original).
Id.,
(emphasis in
at 590
possible parole,” discounted
about “earliest
instruction” —“it
does not
opinion says,
lack of a Rose “curative
But the lead
“[I]t
that
consideration
just happened
necessarily
to be a circumstance
follow that such
regarded
appellant’s punishment
the last two
existed in
contributed
Rose”—
However,
4(a)
the bur-
as “cura
at 586.
this case.”
sentences
ap
to demonstrate
factors
is on the State
and considered “the other
den
tive”
contribute to
record,” id,.,
did NOT
for rea
such consideration
at
pearing
and to
it,
to determine
ante,
are unable
II
we conclude
and we
stated in Part
sons
the er-
doubt
beyond a reasonable
declare
fell into error.
the court
applied
probation;
ror made no contribution to
ble and had
for
she
support
a host of
against appellant.
presented
witnesses
assessed
application
her
and to relate circumstances
Therefore,
re-
judgment
will be
background
appellant
persona;
of her
and
versed.
for,
herself
and testified
qualified
she
comply
probation.
would
with conditions
E
by
objection
appellant,
judge in-
Over
Taylor v. State
charge provisions
cluded in the court’s
for
deadly
in the first
finding
weap-
This is a conviction for arson
whether “fire” is “a
on,”
instructions,
degree;
gave appropriate
assessed
objections, dependent upon
years.
judgment
fifteen
The
was affirmed.
also over
such
(Tex.App. finding;
objected
she
to the Rose “curative
Taylor v.
1987).
for
is in
instruction”
the reason
—Dallas
On remand
reconsider
‘[it]
instructions],
tells
light
conflict with
ation in
the Dallas Court
[§
again
jury to discuss
then once
it and
party
had
raised but did
decide which
”
them not to discuss
81(b)(2),
gener
tells
under Rule
it[.]’
the burden
rehearing
taking
ally
approach
the Rose
poignant
prosecutor conjured
First
im-
Taylor
the error was harmless.
concluded
pressions of what
children who died in
two
(Tex.App.
fense and rationale me, offended, you’re you be made con ing that the evidence was sufficient Taylor. just I Peggy mad don’t be appellant to the fire. nect argue, I had to had to decide what heart. I’m is what came from the pretrial motions relevant There were this, until I very upset about and will be implicate problem. Voir dire did not our straightened get it out. almost laws. deliberated you very much.” guilty, Thank finding appellant hours before five in the nature an instruction and then after faulting prosecutor began by Second charge.” The verdict of an “Allen innocence, rearguing guilt and counsel *26 Friday evening, and returned on he punishment;” to “talk and turned about hearing begin punishment were excused appellant “decided murder charged that following Mon- usual on the than earlier money. Just husband], apparently for [her day. Nothing than that.” He money. more argue she intended to that “would never reoffered punishment At willing she was eligi- children kill those Appellant was [but] rested. and evidence put danger somebody their lives in to kill [including guest].”
else a house He ex- granted We review resolve plained range punishment that persuasion issue of burden of under Rule bodily injury arson with or death allowed 81(b)(2)and to address the harmless error leeway jury; any for the one because analysis by court. conducted death, appellant he asserted was not de- ante, Having already determined issue that serving probation; testimony her e.g., applied Part I at the rule “sorry,” she photo- was was belied Arnold, analysis. supra, we turn to the graph trusties,” “modeling of her for the appeals persuaded by The court of was alluding showing to an exhibit “the real “the same circumstances that were two Peggy Taylor;” jury Marie he asked the Rose," persuasive towit: [this Court] decide four “what lives are worth in Dallas “the facts of the offense militate in favor County.” He concluded: of a harsh sentence there is a cura- [and] “Don’t tolerate this kind of conduct in charge.” Taylor, tive instruction in the County, Dallas do not tolerate children S.W.2d, at 928-929. For reasons stat- being purpose sacrificed for such a low II, ante, Arnold, supra, ed in Part murder, and that is this is. It’s analysis faulty. we conclude that killing accomplish children in order to First, appeals impressed the court of was killings, base, vile, the most the most punishment, the term of unacceptable most purposes all jury “The assessed fifteen committing crime in county. our I'd ask resulting ap- an offense death you give sentence, her a life because pellant’s husband and two of her three that’s exactly what she deserves children. The facts of the mili- offense case. sentence, tate in yet favor of a harsh you.” Thank Instead, imposed. none in this cir- was case, jury cumstantial evidence as- jury began shortly its deliberations appellant virtually sessed the minimum noon Monday before and in an hour punishment resulting in for an offense recessed for p.m. lunch until 1:30 As we family.” the destruction of her jurors disagreed understand the record ear- on, ly a series of exchange messages jury at 929. All this means is that the judge ensued, jurors with the had dinner subjective expecta- verdict fails to meet deliberations, and resumed appellant court, later reviewing tions of the a matter dis- mistrial, moved unsuccessfully jury ante accompanying cussed in note 24 and sequestered overnight was in Payne, finally text, supra, re- at 311-312 and also (facts turned its verdict on at 11:15 at 321 of offense cannot rule out that Tuesday.36 a.m. on jury may have taken into account a 4§ sequence messages jury plans overnight 36. The exact is not that must be made for record, accommodations, following jury clear from the but the recon- that the could deliberate enough desires," purposes. night majority struction is close for our as late into the "as the "fatigue making but that there level” delib- Shortly returning jury after from lunch the "non-productive,” requested erations to be reported, punish- "We are in a deadlock on majority agrees you notified when "the p.m. ment.” At 2:15 the court directed: "Please point.” min- have reached that In about fifteen reported, continue to deliberate.” A note at 5:15 grounds utes moved for mistrial opposing are firm in their individual "[Jurors] "any further deliberations would be coer- arguments opinions[.] All have been exhausted ****’’ process[.]” Motion cive and in violation of due progress and no can be made. denied, reported p.m. and at 11:30 explained why Court should continue split changed,” they "numerical has deliberating, requested to know "the numer- ready approach punishment to retire so to split” changed ical and whether it had since tomorrow," however the "feels it is beginning Response p.m. "fresh unlikely deliberations. at 6:11 split represents it will come to a unanimous decision was that the "is 8-4 and this change p.m. time." The then recessed until next from 11:36 a.m." At 6:55 dinner, on, morning, ultimately returning p.m. found fire was a dead- went to at 8:45 Later o’clock, inquired ly weapon and assessed at fifteen about eleven the court whether 8-4," split informing years. the numerical was "still *27 assessing punishment). judgment instruction in On those bases the will be af- Here, jury, it firmed. for reasons known entreaty for life sen-
rejected the State’s quintet any tence. Better than the IV consideration, under this one of causes Accordingly, disposition our of these con- juries always do not demonstrates that follows, solidated causes is as judges might anticipate. react as some In Nos. Gregory Joel Arnold v. Second, appeals in addition the court of 0483-89, judgment 0482-89 of the & on instruction” relied the Rose “curative Appeals AFFIRMED. Dallas Court of which have denied status as a “rebut- we State, No. 0507- In Anderson Gaines v. accepted presumption,” but as “a table judgment of the San Antonio Court proper analysis factor in harm for Rose Appeals of is AFFIRMED. ante, error.” at 311-312. See Hoooper v. No. In Edwin Francis question re- In each circumstance the 0627-89, Houston judgment [1st] induced mains whether the § Appeals of is AFFIRMED. Court punishment to assess the it did. State, No. Gary Wayne Payne upon impress The trial court had to 0530-89, of the Dallas Court judgment merits of jury the need for a verdict on the the cause is Appeals of is REVERSED and Thereafter, far as the indictment. so pursuant REMANDED to the trial court the is- appellant State and were concerned 44.29(b), Article V.A.C.C.P. life in the sue on is either probation appellant— penitentiary or Taylor No. Peggie Marie us nothing in it is obvious to between—and 0373-89, judgment of the Dallas Court ju- exchanges of communications that from Appeals is AFFIRMED. reaching great difficulty in an rors had positions agreement that of both rebuffed WHITE, J., participating. parties. examined the record for We have CAMPBELL, Judge, concurring. conducing to reasonably indicia factors average jurors rational affect minds of Judge agree I with most of what While punishment, their determination I feel majority, for the Clinton has written influence any calculated to have not found separately variety for a compelled to write assessing jury adversely appellant of reasons. punishment. discretionary review petitions These Gaines, supra, sole mention of As in response granted and consolidated instruction; 4(a) other- parole is in the part of the perceived desire on the § to a subject is not a hint about that guidance wise there con- for additional bench and bar Accordingly, participant.37 Tex.R.App.Pro. trial application from cerning Judge re- 81(b)(2) are satisfied that the fact As Clinton’s to Rose error. demonstrates, application probation and as- various courts jected opinion ably her have, similar fact spite it did does not indi- appeal sessed the widely dis- influence of the this issue operating patterns, under decided cate it was a state of affairs 4(a) parate determine and manners. Such instruction. Thus we § courts reasonable has caused dissension between to declare are able part uncertainty on appeals no contri- of instruction made doubt that the everyone affected. to the verdict bution 307-308, years. ante, While one she served five in a role until We concluded conjecture for con- might between settled be a correlation case there probation 4 instruction. rejection by supervision finement followed application, abundant evi- Here we have probation, some supervised without indica- over proba- strong plea for supporting it and a dence 4 instruc- did consider tion that tion, tion, finding of dead- punishment that the but a pure speculation. say it did would be ineligible pa- ly weapon rendered *28 Unfortunately, impossible Tex.R.App.Pro. 81(b)(2), it is out set which sets out applicable error rule step-by-step procedure a the harmless to the will automati case, instant states: cally lead inerrant to an conclusion that the Any error was or was not harmful. appellate harm If the record in criminal a case below, analysis subjective proceedings error in the tends be and un reveals certain, appellate court shall reverse the but when a court is faced with review, judgement ap- error, under unless Rose these inherent difficulties are pellate beyond court determines a rea- by simple exacerbated fact we are not sonable doubt the error made no privy jury’s to the deliberations.1 Rose v. contribution to the conviction or to the (Tex.Cr.App. punishment, [emphasis added] 1988)(opinion rehearing). Thus, we are rely remarkably forced to in This standard for is circumstantial evidence review standard, by similar to established order to divine whether “the error made no Supreme United States Court Jackson v. punishment.” to the contribution Tex. Virginia, 443 U.S. S.Ct. 81(b)(2). R.App.Pro. (1974),applied L.Ed.2d sufficiency Judge Clinton identifies a number of cases, the evidence viz. appellate factors which will an affect inquiry critical on review of the [T]he 81(b)(2). application court’s of Rule These sufficiency support of the evidence to a factors, summarized, (1) briefly include: simply criminal conviction must be not what, any, parole discussion of occurred properly determine whether the dire, (2) during argument counsel, by voir instructed, but to determine whether the (3) the concerning *29 review, terms, by precludes its resulted. very dard of Likewise, approach. analy- an a harm such Id., slip op. at 36-37. 81(b)(2) Tex.R.App.Pro. sis seems to under 81(b)(2) If restatement of Rule is not this question to judge invite whether helpful, must be remembered that it might have his or her rea- error affected simple, analysis harm will mechanical be 81(b)(2) soning. Again, prohibits such It, process, “outstanding like reason appellate perspective substitution applied in cir hypothosis” able standard that of the factfinder. cases, is evidence not a cumstantial differ 81(b)(2) The notion of how conduct an way ent Instead it is different standard. recently analysis discussed this was looking the same standard. See (Tex.Cr.App. No. Court Harris v. State (Tex. Carlsen v. 654 S.W.2d 69,366 (not reported, yet June (opinion Cr.App.1983) rehearing). on rehearing). pending on 81(b)(2)analysis An of Rose error should 81(b)(2) Although has been cited Rule testing suffi- not be more difficult than times this Court as well innumerable case. ciency of a circumstantial evidence appeals, beyond simply courts proof relevancy applica- notions repeating language of the rule in easily into ble one case should translate terms, conclusory failed artic- we have Hopefully, majority the other context. ulate a coherent standard determin- opinion comprehensive as a will be read ing error is when an harmless. have resource to reveal how various courts words, rule ex- harmless error prescrip- this issue rather than a dealt with conclusory impli- terms that pressed in analysis itself. tion of how conduct the subjective concerns. What is ab- cated objective sent from the rule stan- McCORMICK, Presiding Judge, explored must be reach a dards that dissenting. concurring and legally regard this correct resolution. emphasized must that the function A. an court’s harmless error ap- how the analysis is not to determine Arnold v. State
pellate would have decided the af- I in the result the Court concur facts, extent, if to determine to what Appeals based firming the Dallas Court any contributed to convic- error dissenting opinions on Rose v. my language punishment. tion (Tex.Cr.App.1987). reviewing rule that a court’s dictates determining repsonsibility transcends conviction correct.
whether the B. setting After out a slip op. at 29-30. Gaines v. State suggest of factors that would number af- I of the Court result concur might error in Harris whether Appeals Antonio Court of firming the San Judge jury, much has Clinton affected the dissenting opinions in Rose v. my based on case, concluded: done in this the Court has (Tex.Cr.App.1987). having set been General consideration
out, provide a skel- we are left place proce- A them.
eton on which C. reaching determination dure for Hooper v. State first, its isolate error all should: of the Court judgment I from the effects, out dissent using the considerations set Ap Court of sug- affirming the Houston [1st] other considerations above and dissenting opinions case; peals my based facts of an individual gested by the Rose v. (Tex.Cr.App. S.W.2d 529 in assessing conduct time the defendant’s 1987). Clinton, Judge the author of the lead
D. original submission, pointed out therein that “Whether Payne v. State actually did discuss and consider I dissent from the judgment of the Court time, conduct and to what extent reversing Appeals the Dallas Court of effect, properly can never be discover- on my dissenting opinions based in Rose v. (at adequately 537). ed and determined.” State, 752 (Tex.Cr.App.1987). S.W.2d 529 rehearing, majority
On
of this Court
*30
rejected
error,
E.
"Almanza”
test
State,
see Almanza v.
available. We doubt that the beyond mines reasonable ev- either reverse ant choices: we must no contribution to the error convic- made punishment exceeded ery case where punishment” (emphasis add- tion poorly make educated minimum or ed), (2) jurors are not that the fact guesses the defendant about whether effect, permitted to inform us harmed_ (at 69-70). might any, law instruction argued escape Justice Cohen assessed. had apply from this dilemma was (b) route 52(a) Compare Rule of the Federal is- objection rule to the contemporaneous previous- Procedure. As Rules Criminal in Rose held However, sue. this Court out, in this in- pointed it is the State ly unnecessary object it was proof to stance which has the burden charge. reasonable doubt establish beyond charge error was harmless deciding like answers Much case, penalty reasonable doubt. special in a issues death *37 problem with the “Rose” error charge rests in the fact that to resolve
issue, engage court must speculation guess
either work as to what
contribution, any, the error had on the that assessed the With- being
out able to communicate with the
jury, appears it that the error punish- as to per Therefore,
ment is se. reversible wording 81(b)(2) of Rule and the fact parties may
that the not have the
testify as to charge whether the “Rose”
contributed to the they as-
sessed, per the error is reversible se. conclusion, although this Court did not 81(b)(2), adopted Thus,
draft Rule same. changed,
until the rule is this Court must
bite the bullet on all of the “Rose”
cases, and reverse and remand those cases
to the trial court.
It is therefore necessary to reverse all of
the above cases listed in this consolidated
cause and remand them to the trial court. Isbell,
Allen appeal only, Houston, C. appellant. Holmes, Jr., John Atty. B. Dist. & Carol Cameron, M. Atty., Houston, Asst. Dist. Charles Mitchell Huttash, Atty., Austin, Robert State’s RICHARDSON, Appellant, the State. Texas, Appellee. The STATE of 693-88,
Nos. 694-88. OPINION ON STATE’S PETITION FOR Appeals Texas, Court of Criminal DISCRETIONARY REVIEW En Banc. BERCHELMANN, Judge. Jan. 1990. Appellant, Richardson, Charles Mitchell
Rehearing Denied March was aggravated felony indicted for the of- possession fense of weighing marihuana greater pounds than 50 and less than 200 pounds, enhanced felony with two By separate indictment, appel- convictions. charged possession lant was with of more grams than grams and less than 400 cocaine. The indictments were consolidat- by jury, ed at trial. After trial guilty possession found of co- charges. caine and marihuana The trial court found “true” both enhancement alle- gations subsequently punish- assessed existence of notes reasonably support record evidence could laws, (4) application of the the actual finding guilt beyond a a resonable (is sentence assessed it in accord with the iquiry require But this doubt. does a case, facts of the does the number itself court “ask whether it believes imposed suggest application of a one-third that the evidence at the trial established etc.), (5) (6) deadly weapon finding, rule? a guilt beyond In- a reasonable doubt.” case, (7) convictions, the facts of the stead, whether, question the relevant is (8) concerning pa- additional instructions light after view the evidence mos role,2 (9) objected whether counsel prosecution, any favorable to the rational instruction. trier of fact could have found the essen- beyond tial elements of the crime a re- important It to stress that these sonable doubt. factors are neither exhaustive nor univer- (citations omitted). at 318 applicable. Id. sally Every present case a will majori- different set of circumstances. The similarity In addition to an obvious be- ty opinion impression should not leave the rules, con- tween these laundry possible that a list of these factors ducting sufficiency a faces similar review should checked off each time a court be problems temptations judge as a con- 81(b)(2) analysis. undertakes an Such an ducting analysis. judge harm Such lead, approach inevitably, type put position trying would to determine pervaded of confusion which has this area how the events of the trial affected conducting judge since we decided Rose. factfinder. While a affected, many proba- would 1. Even if we were able to listen to the whether deliberate, bly definitively. be unable to answer parole laws a discussion of the necessarily jury was would not mean that the majority opinion final 2. The does state that the Conversely, affected the discussion. may paragraph considered as a §of never be sentence, easily relying heavily on could set a agree wholeheartedly. "curative” instruction. I considerations, pa- and never mention did instruction discussed in Rose The curative answer, whether the sen- role. The ultimate appear far in the statute and went instruction, tence was affected ambiguous admonition not to con- the statute's ju- minds of individual locked within the majority opinion parole. at note sider See the And, even if we were to ask the rors. second, tempted ask trier sufficiency review to sub- whether rational might reached appellant’s his her of fact a different stitute factfinder, if the error and its effects had not guilt for result stan-
Notes
notes statement. this using actually the mathe- charge, I am Thereafter, many, formula set out Court remanded matical considered the jury appeals unaware whether many to the courts cases instruction, defendant; part, testimony law either all or in acter about assessing punishment, eligible pro- other than in the whether the defendant was does, bation; argument say, jury prosecu- opinion abstract. To as the lead probably could cre- tion. Other factors that the “best liklihood is that a will ‘existence,’ to exist. ated consider the law [of instruction], thereby assess a term of opinion finally concludes: “Ad- lead years may it believes ensure the defendant lay ‘bright mittedly, cannot down a line pres- serves more than the minimum term rule’ to measure the contribution regardless of prison cribd every make to result.” will decide,” merely authorities later is to (Page Maj. opinion.) 313 of guess, speculate, or act as a thirteenth opinion analyzes The lead then several juror might might If have done. the lead opinions by appeals, namely, the courts of correct, opinion’s statement then Rose Arnold, Gaines, Hooper, Payne, reversed, should have been and not af- appeals. which are from different courts of firmed. Arnold, remand, the Dallas Court opinion The lead in this cause informs us Appeals, (jointly murder a double case to look to the voir dire examination as one tried), deciding without the State whether factors, informing without us how or the defendant had the burden attorneys much time the had or should to establish harmless error under Rule complete have had to their dire voir exami- 81(b)(2),placed heavy emphasis upon the nation; jury arguments, look to the with- found in the “curative” instruction defec- informing out us how much time the attor- instruction, tive law and concluded neys had or argue should have had to their that the error was harmless. cases; respective look to see whether the spends opinion, The lead which an inordi- instruction, the “curative” nately argu- amount time on the “ignore or the what I just you” told in- parties, ments of the holds that the court “A struction. verdict on [how- appeals relying upon erred the “cura- harm; gauge alone is not a rath- ever] pa- tive” instruction to cure the defective er, it serves somewhat as a barometric However, role instruction. it con- pressures measure of other we have found every germane cludes: “We have reviewed likely are assessing to influence the revelation in this record and are satisfied ‘bright There is no line’ rule.” did not influence the ad- (Page Maj. opinion.) majority 307 of So versely punish- assessing opinion tells us. thirty ment” at confinement’ in the opinion In the I rehearing filed on in Department of Corrections. Rose, pointed I out that not all cases are Gaines, the San Antonio Court of going nicely fit the facts of [Rose only taking Appeals, into consideration the J., (Teague, at 557 concur State ].” facts of the in- case the “curative” ring opinion). struction, jury’s concluded that “the assess- possible ment at less then one-third of the One factor omitted the lead