*1 fаce the essential judg- attributes final We should include these additional obser- ment. owing vations to the likelihood of a subse- quent appeal. meaning of the state- We hold purported final judgment is purported ment in judgment, final rela- interlocutory because explicitly provides post-trial fees, tive to attorney’s quite is might, the trial appropriate,” court “if take Mauzy’s possible unclear because it makes further adjudication action in its of Mau- attorney’s entitlement to additional fees de- zy’s attorney’s claim for fees under pend remand, upon a implies in turn 37.009 of the Declaratory Judg- Uniform § appeal by party Howell—the successful Act; ments so much is by indicated against whom the additional sums would be granting Mauzy. statement apply leave to adjudged. meaning We doubt literal to the trial attorney’s additional intended, meaning ap- but no other fees, remand, appeal after in the event an pears language reasonable view of the is taken. This amounts to a reservation of employed. uncertainty purport- power in enlarge the trial court to the sum ed final augmented order is further by the fees, Mauzy attorney’s awarded as in an directing statement therein that Howell $10,000.00(the additional amount over sum by take nothing against his action Mauzy, stipulated by parties to be reasonable ordering while simultaneously that How- amоunt), as determined the trial court ell’s action is dismissed. These orders are appeal. after this Consequently, the in- inherently inconsistent. finally dispose strument does not of Mau- appeal Howell has filed his several zy’s attorney’s claim for fees under power motions that 37.009, we have to deter- and the instrument cannot serve § given mine for the reason above. We appeal. Hansen, as a basis for Baker v. they therefore order that be dismissed. (Tex.1984). 679 S.W.2d appeal order dismissed for want recovery statutory attorney’s jurisdiction. feеs, enlarged in a sum or reduced accord- ing to the course of occurring events in an
appeal party taken liable for such
fees, permissible and almost routine. To judgment certain,
make the attendant defi-
nite, final, unconditional, however, and of attorney’s
award fees must be in terms permit the clerk of the court to calcu- by post-trial events,
late the sum dictated plaсe execution, in the sum writ JOHNSON, Pershing Appellant, John merely. as a act ministerial Internation- Security Company al Insurance v. Life (Tex.1971); Spray, 468 see Texas, Appellee. STATE also Steed v. 183 S.W.2d No. 09-86-119 CR. (Tex.1944). That cannot be done ministe- rially under the terms of the instrument in Texas, Court of question, explicitly per- which calls for the Beaumont. function, judicial formance of a after re- June 1989. mand, whether additional and, attorney’s “appropriate” so, if fees are sum should
what be awarded under the
statutory attorney’s authorization for fees necessary”
that are “reasonable and
“equitable just.” unquestiona- These
bly imply a determination issues fact law, opposed to a ministerial func- aсcordingly.
tion. We hold *2 Appeals the of
Thereafter Court Criminal (Tex. in 752 529 held Rose v. 4, 37.07, Article sec. Crim.App.1987) that decided unconstitutional. That Court was necessary for Court then the Ninth was Appeals harmless error to conduct a guidelines the TEX.R. analysis under 81(b)(2). judg the Whereupon, APP.P. Appeals ordered ment of the Court of was gle the remanded. We vacated and cause opinion com as the an well Appeals— mand of the Court of Criminal opinion say, that under the that Ap Criminal the order of the Court of only point by peals of error addressed —the good pa high was thе time and role law instruction. no
Apparently other of error or or in the case addressed other issue was high court. Wheth- even considered incorrectly, or had made a correctly er we thorough and, hopefully, a conscientious published opin- in of thе record our review Johnson, opinion supra. In that we ion. strident, points had dealt determined with urged Appellant. These of error ably set points error were forth briefed, argued urged and professionally appropriate references to the state- MсDonald, Houston, Randy appel- for along authori- ment of facts with numerous lant. pages. 41 Appellant’s brief of ties Greene, Liberty, for State.
Steve counting transcript, state- Not eight of facts consists of volumes ment REMAND OPINION ON totalling approximately pages. 1027 original thought opinion in our had BROOKSHIRE, Justice. challenging and error points of were lengthy and burdensome record difficult, of resolu- meaty, knotty if not case is revisited and reviewed. above apparently the But Court Criminal tion. Appeals unpub of Criminal in an The Court any not addressed of them has opinion Appel Per lished Curiam on Rose, su- except to order a remand under re Discretionary Review lant’s Petition attempt assiduously fol- We now pra. Appellant had cited substance that the command. We have reviewed low into error in argued thаt the trial court fell opinion of the briefs and our record and instructing concerning jury on the law pages, reduced when approximately parole, good time inasmuch as that pages the Southwestern printed to charge predicated upon an uncоnstitu Reporter. Appeals re Our tional statute. Court again Appellant’s are aware that unconstitutionality We challenge jected this on conceded that October brief art. 37.- of TEX.CODE CRIM.PROC.ANN. Johnson, flew Appellant, Pershing John (Vernon Supp.1989). See John sec. 4 country рlaneload of cocaine. (Tex.App.— into son v. pounds approximately pet. granted). The cocaine Beaumont weight and the said cocaine was 93 In reviewing John Pershing Johnson’s percent pure 1, 1984, case, cocaine. On October find in of the сourt at Appellant punishment stage had country flown into this that the court recited 1,400 jury approximately pounds of had marihuana. found the guilty delivery accused attempted Two Ap- controlled defenses substance, namely, pellant cocaine of at еntrapment least 400 were and mistake of grams or more. The court review, further Upon fact. it is clear that the *3 jury charge the in per- structed its that a rejected many these defenses as as well adjudged guilty son of this offense shall be urged Appellant other defensеs. The also punished by in confinement the TDC for early the immunity agree- defense of an life or for a term of years not more than However, ment. the State’s ve- witnesses years or less than 15 in and addition to the hemently Appellant denied the was work- imprisonment, a fine bemay imposed not to ing government for the or working was $250,000.00. exceed find significantly We any type under of immunity agreement on charge gave in the same the that court a question. in the occasion jury curative instruction. The was also Appellant The raised a of error thаt carefully strictly charged and that their the prove evidence was insufficient to that full, verdict should only by be determined a Appellant grams delivered over of fair opinion and free exercise of the of the pure by constructively almost cocaine under the evidence before jurors individual transferring the same. We note that there jury. strong probative was evidence of force that jury forcefully The was warned that Appellant planeload of flew cocaine comply their failure to with these instruc- airport Cleveland, Texas, into a rural near tions in could result a mistrial and that Liberty County. He plane exited the of violations the court’s instructions could immediately he plane but left the and its jurors being result in the held in contempt cargo undetected, cocaine to an undercover of court. One of the instructions wak that agent Drug for the Enforcement Adminis- jury was to not consider the extent to offloading tration to do the of the “coke”. good may or time be awarded for- The evidence and record the case certain- particular feited accused. Another ly jury raised a issue that Appellant jury instruction was that not really perceived actually thought parole consider the manner in which the agent undercover to be a in the worker might applied Appellant. law be to this In employ very large drug actual dealer. entirety of view of the at the large drug pay This dealer punishment stage, we decide that an intelli- flight money flying or fee for co- gent, jury modern will follow the court’s $150,000 Appellant. caine in the sum of charge. Appellate prеsume courts are to Many aggravating more facts could be nar- jury strictly will follow the instruc- here; many rated facts were heinous. given by judge. tions the trial This is meaningful especially jury when that previously Our Ninth Court has written warned that their violations the instruc- appellate that our intеrmediate tions could result the individual members important should consider three factors being jury contempt of the held in court. parole whether law recognize juries also modern We are struction was harmless. Curative instruc- intelligent, diligent, conscientious, and able tiоns The were one of the three factors. accurately assiduously follow the prior criminal of the record and activities as well plain judge instructions the trial accused were the second. Whether plain warnings as and solemn principal facts case under review trial judge. aggravated were and heinous were a third diligently factor. We have endeavored to prior find that the We also activities and II, Rose Rose v. being Appellant follow criminal endeavors are (opin- supportive (Tex.Crim.App.1988) strongly jury’s of thе verdict. rehearing.) Additionally, ion on find seriousness recently held that three- clearly demon- We have primary absolute, ex in Rose II is not factor test giving law strates that compelling, cogent factors. cluding other beyond reason- harmless instruction was Dennis co- large amount of the able doubt. n.w.h.). —Beaumont, surrounding as caine as facts involved well cargo near- flight large of that same other opinions cites two dissent Liberty County ly into the cocaine pure respect these Appeals. Courts glaringly supports the airport clearly and opinions cited the three Courts accord stage. punishment verdict of the at the weight We are not bound considerable punishment to assess the declined them. confinement, at life but instead awarded are, judgment and sentence below a fine of years of 20 only a term time, for the second affirmed. $20,000.00. have The fine could been AFFIRMED. *4 $250,000.00. large as record not summary, we In under Justice, BURGESS, dissenting. strong a and clear giving have only court, by the trial but curative instruction I Under a TEX.R. respectfully dissent. coupled curative instruction was the said I tо 81(b)(2) analysis, am unable APP.P. strong, compelling and solemn warn with a doubt, determine, beyond a reasonable all ing to follow the instructions to parole instruction made the use of the punishment at the the court’s Therefore, punishment. to the contribution contempt stage pain being on held punishment I a would reverse for new Secondly, Appel notice that the court. we hearing. large mari shipment had lant flown a three-factor majority enunciates a prior delivery to cocaine for huana 529, State, S.W.2d test v. 752 under Rose large рaid previously which he had been (opinion (Tex.Crim.App.1988) on rehear- 552 Hence, money. sum of determine be we instructions, (1) (2) prior ing), as curative yond a reasonable doubt that error accused, (3) ag- criminal record charge made no to the contribution In an at- gravated heinous facts. and/or State, punishment in this case. Evans v. test, this three-factor tempt comply to 1988, (Tex.App. — Beaumont strong majority finds there was 'd). pet. ref given jury. to the instruction clear curative give the instruc- II, The court did not curative su- three-factor test undеr Bose in- tion in Rose traditional think, pra, is us we not to be considered statutory prior to the struction used exclusive, test. all-encompassing as the Therefore, not factor one is struction. opine compelling that other factors present. by us. This record re- may be considered shipment flects that of the cocaine distinguishable two is also Factor pounds of question amounted to about 678 stage, Rose, punishment at In Rose. cocaine, having a percent pure 93 98 to prior convic- had evidence five aрproximately million street value 150 case, no evidence was In the instant tions. ($150,000,000.00). Hence, have dollars we stage. The punishment presented at rather, factors, the Rose not overreached upon an majority relies extraneous dissenting attempts attitudinariаn during guilt/in- evidence admitted into jury’s overthrow overreach and verdict. stage, with an instruction that nocence Moreover, the dissent cites Shorten v. only in to be considered 358, (Tex.App.— State, being “prior 361 ac- knowledge, 764 S.W.2d intent and ref’d). strongly pet. peti- Since the endeavors ... Beaumont tivities and criminal Here discretionary jury’s has supportive review been re- verdict.” tion in their fused, precedential again, majority overreaches question must satisfy factors. dissenting attempt the Rose opinion. value of that majority equates the seriousness of primary aggravated offense” and/or agree I importation heinous facts. legisla- is cocaine a serious offense. The obviously way
ture same felt the because (1) (2)
they activity criminalized punishment
increased the when the amount grams. majori-
exceeded four hundred however,
ty, aggrava- does to any not
ted or heinous conduct other than the of- enough satisfy
fense This is not itself.
the third Rose factor. See v. Shorten (Tex.App.— S.W.2d d) pet. (dissenting opin- ref
Beaumont
ion). final, perhaps
A important, more fact
consideration argued
instruction was the state. Sev
eral cases have been reversed because
this. Howell See pet. [1st Dist.] — Houston *5 ref’d); State, 755 Morris v. S.W.2d 505 (Tex.App. pet. [1st Dist.] — Houston d).
ref In Woods v. [14th Dist.] — Houston court,
pet.), observing while sentence, justified
facts of light prosecutor’s argu
reversed
ment of the This law instruction.
argument, coupled scarcity factors, reversal;
Rose result in should not, does respectfully
since it I dissent. SMITH, Appellant,
Vernell Texas, Appellee.
The STATE of
No. B14-87-00485-CR. Texas,
Court of (14th Dist.).
Houston 8, 1989.
June