Julius E. GROSS, Jr., Appellant, v. The STATE of Texas, Appellee
No. 6-86-080-CR
Court of Appeals of Texas, Texarkana
April 14, 1987
Article 6.1 provides that:
the unpaid balance of the contract sum shall be due when the work describеd in the subcontract is fully completed and performed in accordance with the contract documents and is satisfactory to the architect, and shall be payable as follows, in accordance with article 5 and with paragraph 12.4 of this subcоntract: following inspection and approval of the stated work by the architect and owner, final payment shall be made within seven (7) days after owner pays contractor.
Article 12.4.3 of the general condition provides that:
if the architect does not issue a certificate for payment or thе contractor does not receive payment for any cause which is not the fault of the subcontractor, the contractor shall pay the subcontractor upon demand a progress payment computed as provided in subparagraрh 12.4.1 or the final payment as provided in article 6.
Our research leads us to the conclusion that the appellants’ reliance on Delhi, Atlas, and Llano is misplaced. Early in this state‘s jurisprudence, our supreme court held that similar language in a contraсt, with regard to the production of the architect‘s certificate as a prerequisite to the right for collection of the balance, cannot be held to relate to or defeat the subcontractor‘s right to recover damages for breаch of the contract. Linch v. Paris Lumber & Grain Elevator Co., 80 Tex. 23, 15 S.W. 208, 213 (1891). The language of the subcontract and the general conditions in this case lack the essential elements of an agreement that the architect would be the final arbiter to settle differences that might arise upon the question of whether the work had been completed according to the terms of the contract; and in the absence of such agreement, the individual opinion of the architect is not a condition precedent to the right of Southern to recover the balance on the contract. Longview Construction and Development, Inc. v. Loggins Construction Co., 523 S.W.2d 771, 777 (Tex.Civ.App.-Tyler 1975, writ dism‘d by agr.), and Olson v. Burton, 141 S.W. 549, 551 (Tex.Civ.App.-Fort Worth 1911, no writ). Appellants’ points of error nine and ten are overruled.
The trial court‘s judgment is affirmed.
Charles M. Cobb, Dist. Atty., Mount Pleasant, for appellee.
CORNELIUS, Chief Justice.
Julius E. Gross, Jr. was convicted of indecency with a child and assessed punishment of twenty years confinement. On apрeal he contends that the trial court erred in refusing to allow the victim to express an opinion as to whether Gross should receive a lenient sentence, in admitting a written inculpatory statement into evidence, and in instructing the jury on the parole laws. We overrule these contentions and affirm the judgment.
The State proved that Gross committed consensual sexual acts with a minor. At the punishment stage of the trial, Gross attempted to have the victim give his opinion that Gross should be given a lenient sentence, specifically the minimum sentence of two years. The trial court sustained the State‘s objection to the proffered opinion.1
The opinions of nonexpert witnesses are not admissible in criminal cases unless they are rationally based upon the witnesses’ perception of the facts, and are helpful to clearly understand their testimo-
Gross surrendered to the officers on October 19 and was taken before a magistrate where he was given his Miranda4 warnings and bond was set. He was then incarcerated in the Morris County jail. On the next day, he was interviewed by an officer who again read him his rights. At that point Gross signed a written statement relating events which transpired at the time of the alleged offense, but which did not expressly admit the offense charged against him. On October 22, Gross gave a second statement to Sheriff Joe Skipper which made some corrections in the first statement and in which he admitted the act charged against him. Gross contends that the second statement should not have been admitted into evidence because before making it he had requested the assistаnce of an attorney.
The trial court conducted a Jackson v. Denno5 hearing and filed findings of fact and conclusions of law to the effect that Gross freely and intelligently waived all of his rights, including the right to counsel, and that the second statement was voluntarily given.
The evidence at the hearing was conflicting. Gross testified that he asked for an attorney after the first statement but before the second one, and that he was told by the officers that he would have to wait until a judge could appoint an attorney for him. Four witnesses, including Sheriff Skipper who took the second statement, all testified that Gross was fully advised of his right to have an attorney and to terminate the interview, and that he never requested either.
In his brief, Gross places great importance upon the testimony of some of the officers that when an inmate requested to talk to an attorney all they did was let him use the telephone, and that they never secured an attorney for anyone. However, the entire testimony of Sheriff Skipper and the others made clear their contention that Gross never requested аn attorney, and if he had done so they would have immediately terminated the interview and any further questioning.
The trial judge is the judge of the credibility of the testimony in a Jackson v. Denno hearing. White v. State, 591 S.W.2d 851 (Tex.Crim.App.1979); Aranda v. State, 506 S.W.2d 221 (Tex.Crim.App.1974). There is sufficient evidence in this case to support the trial judge‘s finding that Gross waived his right to counsel before giving the second statement.
Gross also challenges the trial court‘s instructions to the jury regarding the law of parole as violating the separation of powers doctrine of the Texas Constitution. We agree with our sister courts that the instructions are not uncоnstitutional and do not violate the separation of powers doctrine. See Sanders v. State, 727 S.W.2d 670 (Tex.App.--Texarkana 1987, no pet.); Rose v. State, 724 S.W.2d 832 (Tex.App.-Dallas, 1986, pet. granted); Joslin v. State, 722 S.W.2d 725 (Tex.App.-Dallas, 1986, no pet.); Patton v. State, 717 S.W.2d 772 (Tex.App.-Fort Wоrth 1986, no pet.).
For the reasons stated, the judgment of the trial court is affirmed.
BLEIL, Justice.
I join in the majority‘s decision but disagree with the majority‘s apparent conclusion that an application of Rule 701 requires exclusion of the victim‘s opinion testimony that Gross should be given а lenient sentence.1
Cases such as Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974); Spaulding v. State, 505 S.W.2d 919 (Tex.Crim.App.1974); and Villarreal v. State, 429 S.W.2d 508 (Tex.Crim.App.1968), decided more than a decade before the adoption of the Rules, are not persuasive authority for interpreting the Texas Rules of Criminal Evidence. The cited sections of Texas Jurisprudence 3d provide no authority fоr interpreting the Rules because they predate the Rules. Further, the cited sections seem barely relevant, and do not purport to address the Rules. McCormick on Evidence § 11 (3d ed. 1984), in discussing lay opinions—like the one excluded below—provides:
[O]pinions of laymen should be rejected only when they are superfluous in the sense that they will be of no value to the jury. The value of opinions to the jury is the principal test of Federal Rule of Evidence and Revised Uniform Rule of Evidence (1974) 701.2
To the extent that the majority holds the victim‘s opinion concerning an appropriate sentence is inadmissible, under
GRANT, Justice, concurring.
I concur with the majority opinion.
The thrust of the State‘s objection to the question propounded to the victim concerning punishment was that the answer would invade the province of the jury.1 This was not a proper objection. Since the case of Hopkins v. State, 480 S.W.2d 212 (Tex.Crim.App.1972), Texas courts have consistently held in criminal cases that evidence cannot be excluded on the basis that it invades the province of the jury. The purpose, however, for requiring that a specific ground for the objection be stated is so that the trial court can understand the basis for the objectiоn. Rule 103(a)(1) of the Rules of Criminal Evidence provides that the specific ground does not have to be stated when it is apparent from the context. (The Rules of Criminal Evidence were not in effect at the time this case was tried, but the purpose for stating the specific ground of objection has not changed.) The trial court‘s ruling on the objection reflected an understanding that the basis of the objection was to prevent the witness from expressing an opinion on the matter. The trial court did not couch its ruling in terms of nоt allowing an invasion of the province of the jury.2
At the punishment stage of the trial, evidence which suggests a mitigation of punishment or which is relevant to an application for probation is admissible. Allaben v. State, 418 S.W.2d 517 (Tex.Crim.App.1967). For example, this could include evidence which might demonstrate to the jury an accused‘s likelihood of responding positively to probation as opposed to imprisonment and his understanding of the terms of probation and his willingness to abide by them. Clemmons v. State, 638 S.W.2d 657 (Tex.App.-Fort Worth 1982, no pet.). Admissible evidence could аlso include conduct of an accused which demonstrates that he has been rehabilitated since the crime. The admission of such evidence, however, would not require admission of a conclusionary opinion as to leniency, because it would not be beneficial to the jury, and a trial court could properly exclude it as it did in this case.
Notes
Rule 701 provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Rule 704 provides:
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. The State‘s objection was as follows:
Your Honor, the State‘s objection would be that all those questions would go to a matter that‘s in the sole discretion of the Jury and wоuld be based on opinion considerations in the form of the answers that would invade that Jury province.
On the whole, it is thought that the danger that these questions phrased in terms of “legal conclusions” will be understood as calling for a conclusion or opinion of law is very slight, since they will seldom be asked except when the popular meaning is approximately the same as the legal meaning. In a jurisdiction where there is no general rule against opinions on the ultimate issuе, it seems that a request by the adversary that the questioner define his terms should be the only recourse. McCormick on Evidence § 12, at 32 (3d ed. 1984). The court‘s ruling on the objection was as follows:
I‘m going to sustain the objection as to any opinion by this Defendant that the Defendant should be given a lenient sentence, specifically that he should be given the minimum sentence of two years. As far as his opinion as to whether or not his uncle is rehabilitated or changed his ways, I‘ll let you put that on if you want to.