Rose v. State

ROSE, Appellant, Lee Vernon Texas, Appellee. STATE

No. 193-87. Texas, Appeals of Criminal Court En Banc. 12, 1987. Nov. Rehearing Opinion on June Advisers,” Fitzgerald, Kerry Fitzgerald, Interpretive L. P. don see Commenta- John Dallas, appellant. taking ry and was recommenda- of Prison tions the Board Wade, Atty. Henry Former Dist. Commissioners, clemency exercise Vance, Atty. Dist. John D. Na- John power “subject vested Governor Manasco, tion, Randy Poppoff Patricia No- Legislature to no other limitations Klein, ble, Jeffrey B. Keck and Michael A. than that mentioned in the constitutional Huttash, Attys., Dallas, Dist Robert Asst of provision reference to remission with Austin, Atty., for the State. State’s to fines and forfeitures and with reference Nelson, parte 84 treason.” Ex Tex.Cr.R. (1919)1 parte 209 148 and Ex S.W. Redwine, 91 Tex.Cr.R. 236 S.W. ON OPINION APPELLANT’S PETITION (1922) (any part parole of law wherein FOR DISCRETIONARY REVIEW clemency un- power of chief executive CLINTON, Judge. IV, 11 is “in wise der Article § an in In this cause we decide whether abridged infringed or would be held.... charge of struction on unconstitutional”). pursuant jury given of to to the court ground still It was then and is a new 37.07, 4(a), V.A.C. the mandate Article § trial that the “received other testimo C.P., is Court of constitutional. Dallas deliberations, during engaged or ny” its sitting Appeals En held the instruc Banc “misconduct” such that defendant “has tion is not violative Former impartial fair an trial.” received a II, 1 in powers of Article doctrine § 40.03(7) (8), V.A.C.C.P.; and see ly Article Rights or Texas Bill of the Due Process 30(b)(7) (8). Tex.R.App.Pro. Rule now or Clause of the Fourteenth Amendment in jurors recounted So it was when I, Due Course Clauses of Article §§ county stances in the of trial after Rights. State, 19 in Bill our Rose sentenced “the they were convicted and 1986). (Tex.App. 724 S.W.2d — Dallas wrongfully had interfered Governor solely on Based the Constitution and laws power pardoning to shorten the used the Texas, of the State of we will find such an condemned,” de terms of service of those instruction, mandating as aswell stat to new trial. fendant entitled Weav ute, is unconstitutional. 210 S.W. 698 85 Tex.Cr.R. er v. (1919).2 I. developed general Reacting to a sense Long of Par- before there was a Board governors during “some those times that

dons and Paroles the Constitution Leg- indiscriminately,” the granted pardons power clemen- State of Texas vested the the voters and in 1936 IV, proposed islature cy solely in the See Article Governor. IV, adopted an amendment originally § Constitution Interpretive Com- remedy the situation. adopted, quoted in Historical Note follow- mentary following. It a Board created ing; see references to earlier also therein and, (Board) inter containing Paroles provisions. Pardons and constitutions similar executive alia, exercise of time conditioned While from time to the Governor was commutation of respect to by something clemency of Par- with aided called “Board as- Legislature that the verdict power facts ... indicate 1. ‘It is 2. “The not within penalty reflect the power sessing does not enlarge pardoning the death or restrict judgment impose of the members vested nor to condi- deliberate executive them, exercised, legally jury, before upon evidence upon may be nor tions which it agree prece- were induced touching some of them requirements but that the conditions Governor cases the subsequent imposed by to it ... such because dent or had, relating jurors opinion of the upon executive the convict...." facts, S.W., (All in the exer- overlenient emphasis supplied extraneous been Id. S.W., pardoning power.” Id. throughout by unless cise of the writer of indicated.) at 700. otherwise punishment pardons “on the written trial court should instruct the jury in its signed recommendation and advice of punishment “that it should not Board;” respect with remission fines possible discuss consider the effects forfeiture, “under such rules as the system.” laws or Moore v. Legislature may prescribe,” again 358 (Tex.Cr.App. written recommendation and 1976). advice Elaborating on both Heredia Board. Moore Sanders S.W.2d 349 (Tex.Cr.App.1978), the Court ex further Under this regime new in an un plained: broken line of cases the Court would con “It improper would be hold, tinue to generally speaking, expectation based on an clemency be jurors when a discussion “had exercised, would be and it would bringing the effect of about enhanced [an] attempt delay unconstitutional punishment,” defendant was entitled to a exercise clemency powers the of the State, or to Price E.g., new trial. v. 150 Tex. possible avoid the 161, granting parole by of 168, (1947); Cr.R. 199 S.W.2d 170-171 State, increasing punishment in Jackson v. 323, anticipation 157 Tex.Cr.R. 248 II, (1952). thereof. Article Sec. 1 S.W.2d of the prosecutor 748 Thus a Texas must provides Constitution for separation not invite parole consider the law governmental State, v. assessing punishment. powers among the Clark three 723, departments, executive, legis 643 distinct (Tex.Cr.App.1982); S.W.2d 725 * * * * State, lative, Marshburn (Tex. judicial. Clemency 522 900 S.W.2d Cr.App.1975). powers parole While by system decisions collected embodied Heredia v. beyond by the Court in 528 the reach S.W.2d interference (Tex.Cr.App.1975), judicial IV, 11, 847 indicate it was not branch. Art. Sec. particularly delineating ger Const.; action consistent Texas analyzing mane to be judicial delay branch to factors evaluated in frustrate issues, parole it was satisfied that “the power by the exercise the execu id., consideration,” jury’s is not for the tive branch is as much an unconstitu at 853. as attempted tional is an interference usurpation power. Ex See In Heredia supra, the Court parte Giles (Tex.Cr.App. 774 S.W.2d [502 law, found that “discussion parole of the 1974) and v. Blackwell Smith S.W. ] [500 although common knowledge, would ev- (Tex.Cr.App.1973) ], 97 2d for unconstitu ery case constitute misconduct since grants authority usurp tional clem law is not jury’s consid- ency powers.” eration,” id., at 853. The reason was Constitution, founded in our viz:

“The parole, decision to if and when II. made, beyond province Now we must first determine whether courts and is jury, ... and therefore the barring principles jurors constitutional province exclusively matter within the considering parole laws have survived government, of the executive branch of IV, 11, revision of Article effective § legisla- regulations proper under approved proposition when the voters 11, IV, tive Tex- branch. Article Section No. 13 in 4 submitted S.J.R. 1983. as Constitution.” 1983, Vernon’s Texas Session Law Service Id., 853, revised, 4.3 n. 11 perti- at A-158. As reads in § part: nent To possibility eliminate Legislature would “Section 11. shall become involved in a discussion The parole law, that the the Court clear law establish a Board Pardons and made reject App.1984), 3. That the Heredia does not Court later to undermine constitution jurors' determining formulation propositions whether al enunciated Heredia and else discussing parole er laws constitutes reversible where. ror, 262, (Tex.Cr. Sneed v. 266 670 S.W.2d

533 require keep authority granted in 1936 to Paroles shall enact importance. is of of its and the reasons for laws little record actions What em- Legislature Board, is the its shall have cial role of the actions. and to we authority ¤ ^{[*] [**]} to enact }} ^[4] parole laws. now turn.

B. Clemency sovereign power

A. inherent lodged part ty, may in whole or addressing In parte determine. Ex people wherever the Constitution, the Texas issue under Giles, 774, (Tex.Cr.App. 780 S.W.2d gave Appeals scant Dallas Court atten- Blackwell, 1973); 97, Smith v. State, 11. Rose v. revised § Miers, parte Ex (Tex.Cr.App.1973); disagreed merely 835-837. It that § 124 Tex.Cr.R. supports pa- appellant’s contention “that parte Muncy, Ex (1933); 72 Tex.Cr.R. component clemency powers is a role (1914); S.W. 263- Tex.Jur.3d govern- vested in the executive branch 4381; 44 “Criminal Law" Tex.Jur.2d § therefore, and, [jury] ment these instruc- “Pardon, Reprieve, and Commutation” 5-6 usurpation by judi- tions constitute 2; Commentary following Interpretive § ciary, acting through jury, of that exec- IV, § power,” reading its utive because own “gives legislature paragraph first paragraph the second power laws” and enact revised, power retains the Governor governing parole rules the with- “[t]hus grant pardon, and revoke a conditional to Id., legislature.” in the control the at powers clemency save as well as all other begs question. reading 836. That real the formerly in the The effect one Governor. parole in to eo para- The second sentence the first of revised 11 is remove no- § power graph clemency of revised 11 is from for- mine from of the Gov derived § similarly clemency power providing Leg- mer and to ernor to vest § grant in pa- paroles islature and revoke the Board. authority “shall have to enact to Governor, laws,” as chief role and we find no indication that In the sense that executive, grant longer empowered to provide the revision is intended to no broad- it, scope legislative authority regard parole may er not be construed to be clemency,” 42.- “executive already possessed. laws form of Article than Therefore, grace. 18, parole is an act of contrary to the view of 2a. But court § 51, parte Lefors, appeals, Legislature Tex.Cr.R. Ex retains the remaining constitutionally provided authority paragraph The Board its a restatement 4. clemency power duty vested in the Governor and the recommendation and to make written and granted advisory power paragraph power Board second respect granting to the Governor with advice §11, except of former deleted is pardons reprieves, and and re- commutations "paroles.” to revoke Legislature mitting forfeitures. The fines and precisely proposition ap- Let us read character, change in the duties and no made viz; 8, 1983, proved by people November respect of the Board with functions change "The constitutional amendment 42.12, prescribed V.A.C.C.P. in former Article of Pardons and Paroles from a consti- Board 427, 2, 1985, Leg, implement- § Ch. In Acts 69th agency statutory agency give tutional to a 42.18, 13, ing V.A. S.J.R. No. codified Article power paroles.” the board the to revoke C.C.P., Legislature expressed intent "to its 13, S.J.R. 4 Vernon’s Texas Session Law No. designate Paroles as the Board of Pardons and 1983, Service at The constitutional A-158-159. government agency exclusive of state with Legislature is that shall convert command 42.18, authority paroles,” Article to determine statutory agency which will the Board into excep- supra, provided, 1. further with § It continue to recommend and advise Gover- 4, (an §to implicated not here amendment tion clemency except nor paroles, all matters of executive 42.12, V.A.C.C.P.), is in- “this Act Article leaving Board determina- alone only, substantive no tended as recodification paroles. tion of intended, Code Con- change [the in law is proposed by The S.J.R. No. 13 amendment 1985, Acts applies this Act.” upon approval by struction Act] the voters became effective 8,1983. Leg, p. 4.§ The amendment retained in 69th November Ch. (1957); United States v. part Department of the Executive as con- (CA5 1982). Chagra, II, 669 F.2d So templated by Article “the decision § long as it exists and is utilized as a tool of grant parole, made, if and when is be- rehabilitation, jurisdiction, yond province Depart- the [Judicial power authority over must be exclusively and is ... a matter with- ment] agency exercised some officer or Department], prop- under [Executive parte Ex government. compare See and regulation [Legislative Depart- er Giles, supra, at 780 and Smith v. Black IV, Section 11.” Heredia v. Article ment]. well, supra, have decid people at 101. The and Sanders v. supra. both ed in favor the Board rather than the Accordingly, “any attempt by depart- one Governor, Legislature and the has effectu government ment of to interfere 42.18, ated that decision in Article V.A.C. powers of another is null and void.” Ex Thus, parole C.P. Giles, clemency an act of parte supra, 780; State ex rel. jurisdiction, power within the “exclusive” Blackwell, Smith at 101. Id., authority of the Board. 1.§ caption

The No. S.J.R. 13 charac C. terizes the Board to be established as “a remaining question is whether statutory agency,” meaning no more than legislative 37.07, mandate in Article However, it is a creature of statute. since 4(a), supra, that the courts “shall § in 1936 the Board was elevated to constitu jury writing” the content of instruc Department tional status the Executive given cause, the trial court para the first sentence of the first powers offends the doctrine graph Legislature 11 mandates the § II, prescribed Finding in Article § Board, that, establish a find we whatever attempt by department statute is an one characterization, its the Board remains government department to direct another where always it has been —in the Executive yet to interfere with a third Liquor See Texas Control Department. department government, hold we Co., Distilling Board v. Continental Sales 4(a) is unconstitutional. (Tex.Civ.App. 1012-1013 looking legislative While at “available 1947), n.r.e., —Dallas writ refused 203 S.W. Appeals history,” the Dallas Court of said 288, 289, dismissed, 747, appeal 2d 332 U.S. 37.07, 4(a) Article “must be construed § (1947). Moreover, 68 S.Ct. 92 L.Ed. 335 Rose v. meaning.” according plain to its legislation implementing the constitu State, supra, agree at 836. with the We expressly tional foundation for the Board latter, proceed and to examine it and the provides subject that is “it to the Texas facially.5 Act, Sunset but it is not under abolished 42.12, 12a, that Act.” Article V.A.C. § Both and the instruc the statute C.P., 42.18, id. See see now Article Texas begin erroneous with a direct albeit Act, Code, Sunset Government 325.014. statement, § viz: Compare Secretary similar treatment of case, applicable this “Under the law to 4330a, (1987 in State Article V.A.C.S. Pock defendant, if sentenced to a term Part). et earn time off imprisonment, may

Therefore, imposed sentence through we conclude that since the the award good Board of Pardons and Paroles is within and conduct time.”6 sion, subject opin- 5. The instruction is set out verbatim in the but release on either status is page ion of the Dallas Court at 835. That the continuing compliance rules and condi- may part Dallas Court have in rested its deci- end of the term to tions of release "until the applied sion on statute and instruction as appellant, 17; 42.18, § which he was Article sentenced." supra, see Rose v. at is a 6181-1, see V.A.C.S. § also Article matter we need not review here. argument State characterized that In oral pre- language as "inartful.” But if we are prisoner may 6. A sen- not "earn time off the instructions, jurors as the Dal- imposed." good follow may sume that tence One earn time to State, supra, eligibility parole mandatory supervi- at and las Court Rose v. insisted. in- parole law paragraph aspects in contained the first The remainder of struction. and instruction informs both statute

jury generally about factors relevant consequence It no constitutional is of taking good warranting awarding time from consideration excluded thereafter away. it good time to which conduct are "the extent by par- this may and forfeited be awarded paragraph The in each adds second in and “the manner ticular defendant” might length imprisonment be reduced may applied this parole law be which the by parole. award the authorities. particular defendant” stat- paragraph The dictated third already instructed Jurors have been applica- jury “the law ute reveals explanation they may consider stated case,” to de- the exact formula ble this time, yet good parole law and conduct appellant this will become termine when parole consistently has held the the Court eligible time served actual —“the See jury’s is for the consideration. law not equals imposed one-third of sentence ante, 2-4. less, years, without consid- whichever 37.07, legislative The in Article mandate may good conduct time he eration of 4(a), Legisla- attempt is an § gives it simple example; earn”—and De- Department tive to direct Judicial eligibility guarantee of points out that is no pow- partment to interfere with exercise parole. Execu- ers of the Board of Pardons can- is next informed one and, it Department as such offends tive parole law accurately predict “how the II, in Article separation of doctrine good might applied time conduct 37.- Accordingly we hold that Article § defendant,” depends because that 07, 4(a) required by and the instruction § by “prison made au- decisions are unconstitutional. thorities.” III. point, however, para- At the fifth graph “You of both the is instructed: Appellant instruc also contends that the may 37.07, consider the existence 4(a), su tion mandated Article good is to conduct time.” That pra, rights his to due course violative of say, I, when it comes assess 13 and guaranteed by Article of law §§ may is, deliberate on the content he Y.A.C.C.P. That preceding four what has been stated being denied fundamental fairness making paragraphs a decision as to justice, necessary to due administration years punish- number of it will assess as S.W. 161 Tex.Cr.R. v.Webb ment.7 (1955), operation 2d in that statute, as as the instruc effect well to avoided is the considera- “The evil be tion, impartial on preclude fair and trial a parole assessing jury in by the punishment. the issue State, punishment.” v. 643 Clark S.W.2d cause, Elsewhere, of trial in this (Tex.Cr.App.1982). than at time 725 Rather contemplated that an assess- by 37.07 evil mandated Article avoid that the instruction on punishment be based evidence directly jury instructs the that ment of the statute de- prior assessing punishment may “as to the criminal record in it consider something apply jury ment “to one's mind to must to an awareness is then we at attribute knowledge imposed outset term of sentence on or under- order to increase one’s years appellant in accordance with number standing it." it to reach a decision about or punishment by verdict assessed in its Dictionary (1979) Collegiate 239. Webster’s New good by an conduct would be lessened award body, functioning "consid- in a formal we When begins its deliberations on time. Thus to Funk er deliberate with view action." and misleading punishment an and with erroneous Synonyms, Wagnalls Handbook & Standard notion in mind. (Revised Antonyms Prepositions Edition & 1947) study, 148-149. synonymous con- To 7. consider meaning template weigh; ele- and shared their 536 fendant, general reputation his and his (c). may jurors the rule and It is now character,” 3(a); to id. v. § Allaben oc- testify matter or statement State, 418 517 S.W.2d (Tex.Cr.App.1967), curring during course of deliberations added legally admissible to mit- “[e]vidence or of anything upon to the effect their

igate punishment or evidence that is rele- influencing minds or them con- emotions application vant to the probation, any, if cerning processes. their mental Tex.R.Cr. is also Id., admissible.” at 519.8 Of 606(b). gain any insight Evid. Rule To into course, the given here is not the basis and rationale of a one verdict evidence; purports terms to be “the admitted, must resort to evidence applicable case,” law to this rather than punishment, argument on the facts of the case. parties record, relevant indicia of other any.

if Early on “due course of the law of they “may Jurors are instructed general land” was held mean “the condemns, parole consider law; the existence of a law which hears before it time,” good experience conduct proceeds inquiry teaches upon and renders they great. will general likelihood A

judgment only trial.” v. after Huntsman gubernatorial (1882). adverse State, reaction extrava Tex.App. See also gance exercising State, pardon Bumguardner v. Tex.Cr.R. fact, commute is a documented historical (Tex.Cr.App.1944). 179 S.W.2d people terms, impose motivated the contemporaneous Put restric more an ante, tions on its See use. at 531-32. ingredient impartial essential of a fair and recently More hearing trial records and our own proceeding, including adversarial opinions jurors that often punishment, reflect cannot the ultimate conclu resist temptation to discuss sion of the factfinder be determination of Indeed, Analysis reports laws. Bill pleadings by giving issues ade tendered jurors what is con quate notice, commonly were properly evidence raised known— sidering admitted, operation laws revul upon opportunity for an defend against understanding sion their of how ant to confront adverse witnesses and be they being v. administered. Rose impartial heard an factfinder under fair law, 836. procedures provided by including some showing of for that the basis conclusion. punishment The issue should be decid- (Tex. Thompson v. pre- evidence of record ed on relevant Cr.App.1981); Caddell 37.07, 3(a) under such scribed Article § Guzman, 275 (Tex.Cr.App.1980); parte Ex necessary may additional instructions be (Tex.Cr.App.1979); S.W.2d 461 Ex 3(c). im- id., “It pursuant to would be § parte Quintanilla, 151 Tex.Cr.R. proper to be based on (1947); S.W.2d 377 12 Tex.Jur.3d clemency powers expectation would Law,” “Constitutional exercised, be unconstitutional and it would attempt delay the exercise of Thus awhen is factfinder its possible clemency powers or to avoid the verdict judgment will be reflected increasing punish- granting court, judgment must be thereof.” anticipation ment in Sanders entered of record. Y.A.C.C. State, supra, at 351. P. A punishment, verdict on like a verdict law, guilt, long provided by motion on So as general is in the sense that it judgment, motion for new trial punishment states arrest of an amount of assessed pursuant pursuit are means 37.07, 1(a) appeal valuable 3(b) to Article §§ 1, September 1986, 8. Amended effective punish- Article duction of rules of evidence into the 37.07, 3(a), pertinent § part now reads in that hearing ment not does affect our rationale may, permitted "evidence as the Rules of the result we reach here. Evidence, be offered [et That cetera]." intro-

537 CONCLUSION rights greater violations remedying How law. the instruc- Having due course the statute and held vouchsafed by Article mandated in two re- ever, requires instruction unconstitutional it tion from chal immune 37.07, 4(a), virtually is determine whether spects, now we should § purports to doubt the instruction lenge beyond a reasonable because the instruction law, punishment relevant to its as- evidence be one of no contribution made admissible, and counsel Tex.R.App.Pro. is not Rule jury. declarations by the sessed arguing the matter prohibited However, majority of 81(b)(2).9 a jurors actually did dis jury. Whether differently.10 matter Court views good parole law and con cuss and consider Accordingly judgment of the Dallas effect, time, what extent and to duct Appeals affirmed. Court is ade properly discovered and never be can punish The risk that quately determined. consider based on extraneous

ment will be DUNCAN, J., joins III. Part that consti society is intolerable ations concepts of fundamen tutionally demands jus in its criminal be honored fairness tal MILLER, Judge, concurring on State, v. Tex. system. McFarlane 158

tice discretionary appellant’s petition (1953); see State 194, 136 254 S.W.2d Cr.R. review McDonald, 662 S.W.2d 5, Bryan rel. v. ex State, v. problem of Webb (Tex.Cr.App.1983); appreciate To 7-8 at (1955) 442, 158 278 S.W.2d a common charge, 161 Tex.Cr.R. we must start with 160); (On Rehearing, improp- also premise at see is it is Motion premise. That Olsen, 398, 401 State v. 360 at greater S.W.2d sentence give er for a State, 92 v. Ramirez (Tex.1962), excerpting for the sole they is merited than believe 1020, (1922). 1021 241 S.W. at serve all Tex.Cr.R. having the defendant purpose of law, interweaving federal we ob- Without do believe is merited. they sentence appear not to be incon- serve that it does believing is, that a sentence That Florida, v. U.S. Gardner e.g., 430 sistent: in a punishment proper years ten (1977); 51 L.Ed.2d 393 97 S.Ct. case, give not a defendant given should Georgia, v. Presnell also U.S. see paroled not that he will twenty years so (1978), 99 S.Ct. 58 L.Ed.2d As far as actually the ten. serves until he Arkansas, 196, 68 v. Cole State 333 U.S. agree tell, of the Court I can all members (1948); Andrade cf. S.Ct. 92 L.Ed. premise. to this v. (Tex.Cr.App.1985) 700 S.W.2d 590-591). (Concurring Obviously There Opinion, part ways this Court starts to 4(a), fore, 37.07, we hold that Article premise once and ven- we leave above § mandates, parole charge ture into the mandated along it vio with 37.07, 4, I, members Art. V.A.C.C.P. Some lates Article and 19. §§ good analysis law 9. A conduct time harm the infirm under instruc Almanza 1985), fatally (Tex.Cr.App. inappropriate infected the entire hear Coleman, gave ing. Compare here. The trial court parte an instruction Ex mandat statute; ed appear thus it (Tex.Cr.App.1978). does from the concurring opin any requirement record ions, however, of Article 36.14 analysis do amake harm under through disregarded,” 36.18 been 'has (Tex.Cr.App. 686 S.W.2d 157 Almanza contemplated by Article 1985), V.A.C.C.P. say none is sufficient find appellant impartial has not had a fair and hear ing punishment. Judge gave in- the invalid McCormick and court Because join requirements of a those who him in would not dissent hold in accordance struction statute, is of statute and instruction it writer mandates un facially unconstitutional consequence constitutional. The harm that while a sufficient appellant suffered view that instruction, giving finds error in explicated it due denial of course from the in Part also holds the error does not call for a reversal. opinion. satisfied We are of this telling consider could analysis. problem analysis Almanza That of find no results this Court constitutional finding giving in either of giving charge. or the that the an unob- with the article jected-to charge egregious er- Judge See Others amounted McCormick's dissent. deprived separation powers of and a find both a due ror which the defendant of a fair infringement. majority impartial trial, giving course of A at or that the an of agrees objected-to charge least that the article the violates amounted to harm that separation powers doctrine the Texas injured rights of of of defendant. Constitution. In case no objection there was to the 37.07, 4(a), supra, agree I giving of charge question. in In ad II, 1 of the Consti violates Art. Sec. Texas situation, dressing such a we stated in Al hav powers). I write (separation tution manza, supra: Judge in ing of the comments benefit finding “We hold that in error the court’s For rea dissenting opinion. McCormick’s charge begins to the jury ends—the —not me, neither the escape sons that inquiry; step is to an next make must opinion mentions what nor the dissent evidentiary may review ... illumi- separation important be the most actual, theoretical, just nate harm times, Meshell in recent Almanza, supra, accused.” at (Tex.Cr.App.1987,motion 739 S.W.2d 246 174. 4, 1987). rehearing overruled November Here, majority a of the Court has decided Meshell, in su Much of written what was charge the giving the error pra, acerbic comments answers the that resulted from the dictates of a statute very reason ground.1 The dissent on this violating the powers doctrine. finding legislative ing that led of a the pronounced That error here is in the power an exclu encroachment into area of charge beyond jury refute. Thus prosecuting for the attor sively reserved proceed analysis would the harm department, of dis ney judicial supra. Almanza, described in trial, preparing cretion in bolsters legisla majority’s that the reasoned view post-Almanza The first case from this encroached, ture has here via a directive Court to unobjected-to find reversible error exclu power an area of judiciary, upon charge a court’s on sively for the Board of Pardons reserved Ellis v. 671 (Tex.Cr.App. department. the executive 1986). Upon viewing light the error record, analyzed entire charge we My goes concern to the treatment of the admitted, view the evidence jury harm resulting jury arguments, the length of the jury’s sen mandated this unconstitutional statute. tence, and concluded that the defendant years the two short since the advent of was denied a fair A approach trial. similar understanding of error in instruc- may be taken in the instant case. tions elucidated Almanza v. According Appeals’ opin- Court (Tex.Cr.App.1985)(opinion S.W.2d 157 on ion, the facts of the case are as follow: rehearing), reported three over hundred analysis cases have the two-tiered used “... afternoon of October charge giving appellant error. Once the and two other men en- portion complainant’s the trial court’s tered textile company in error, Dallas, determined to apply we gunpoint, must robbed him and left authority for the Board the constitutional Referring such as since comments to dissenter’s IV, opinions may in Art. TEX. as to the remains differ and Paroles “The fact that of Pardons CONST., constitutionality not be a agency of a statute should an executive is therefore legislation. 544) (Meshell, to strike down the p. sufficient basis Instead, (Dissenting opinion, agency." constitu- militate in favor of it should establishing the office stating apparent reasonable tionality is so unless it V, authors county attorney under Article opinion p. (Dissenting differ.” minds could not placed officers those Texas Constitution 543) (Meshell, supra, being hotly contested government). judicial branch within decision); majority implies that “The 5-4 Moreover, did Appellant analysis if this harm up on the took even him tied floor. result, following pistol approximately not reach the above complainant’s and noon, mitigating harm, given charge, Shortly eight further was in cash. before $160 charge in later, apart- was at an days Officer Reno after question: he complex Ennis when saw a ment goldish-yellow Pontiac Sunbird in deter- “You are instructed that further seeking. appel- He observed police case, were mining you punishment this George Fitch, companion, his and lant among yourselves are not to discuss how

Jr., get out the car and walk toward long required the defendant will be apartments. approached the He two you impose. serve sentence decide to and asked them to show their identi- men come within the exclusive Such matters began questioning, As Reno fication. his jurisdiction of the Board Pardons Shoquist and discovered Officer arrived Paroles and the Governor of the State appellant handgun had a concealed yours.” no concern of Texas and are pistol identified as stolen in the later presented. No reversible error robbery. Reno then drew his re- Dallas CAMPBELL, joins. J. Fitch, pistol on removed a Fitch volver ONION, Presiding Judge, concurring carrying of his was the waistband part dissenting part on trousers, placed ground Fitch on the discretionary appellant’s petition for handcuffs. Reno then turned to without review. struggling Shoquist who aid was pistol. appellant ap- for the latter’s As Appellant aggravated convicted of pellant struggled, and the officers two robbery and his was assessed possession pistol, Reno lost of Fitch’s imprisonment. at life and Fitch recovered it. Fitch shot and Appellant complained appeal, on inter ensuing During wounded Reno. con- alia, charging the law fusion, squad car; appellant escaped in a 37.07, 4(a), pursuant § chase, caught high speed he was after a V.A.C.C.P., pow- violated appellant ended when crashed into process due clauses ers doctrine and median a concrete marker.” Dallas constitutions. The federal state State, (Tex. 833-4

Rose v. S.W.2d rejected such contentions Appeals Court 1987). During App. penalty — Dallas the conviction. Rose v. and affirmed trial, stage of the State established that the 1986). (Tex.App.-Dallas 724 S.W.2d 832 appellant penal 39-year-old had been petition for dis- granted appellant’s We prior three had five institutions times and cretionary to determine the correct- review felony convictions. Ap- ness of the decision Court During argument, prose- peals. final while both appellant cutors mentioned that was back challenge appellant’s view of years receiving in Dallas twelve after 4(a), su- constitutionality Article § (as year reflected

twenty-five sentence presump- pra, the is vested with a statute convictions), prior the admitted evidence of duty validity Court gave further attention to fact neither in such a such statute bound construe argu- all in their nor mentioned if constitutionality way uphold its asked ments. Both for a life sentence be- State, 582 possible. Ely See facts appel- cause of the case and Granviel, parte (Tex.Cr.App.1979);Ex prior felony lant’s five convictions. V.T. (Tex.Cr.App.1978); 561 S.W.2d 503 Code, C.A., See record, 311.021. Based on examination of the Government 625, 630 totally say giving unable that the am also Faulk v. not de- should unobjected-to charge Courts (Tex.Cr.App.1980). of this amounted to it is appellant unless deprived unconstitutional egregious error that clare act appear its enactment impartial clearly Thus trial. reversible made fair pow- has its presented. Legislature that the exceeded is not error probative evidence, Lyle weight 80 Tex.Cr.R. argu- ers. (1917). 680 And courts not and any S.W. should ment counsel other relevant Legislature assume the would intend an revealed the record information capa- if (Emphasis sup- unreasonable result the statute is the as a trial whole.” prevent plied.) ble of a construction would State, a result. 572 such S.W.2d Wade no objection Since there was to the (Tex.Cr.App.1978). Before a stat- proper if funda- charge, only reversal is the aside, validity clearly ute is set its must is so egregious mental error and creates unsupported by a reasonable intendment appellant such not harm that the “has had Groves, parte Ex presumption. allowable impartial applying a fair In trial.” the (Tex.Cr.App.1978); 571 S.W.2d 888 Parr v. analysis Almanza each case must stand on (Tex.Cr.App.1978). S.W.2d its merits. own principles background, With these as a charge is in the at The error court’s the 37.07, 4(a), fully agree § penalty stage only. of the The suffi- trial on the bases is unconstitutional set forth aggra- ciency of the evidence to sustain the the opinion. judge Here trial disputed. robbery not vated conviction is following mandatory language of the Appellant companions and two entered the unconstitutional, statute, declared now victim, company textile of the robbed him gave question. now in gunpoint up left him tied charge error in the was error court’s threatening Ap- floor him. after to kill although objection no there was proximately cash and the victim’s $160 charge court’s on this basis. The error pistol Eight days later were taken. Lt. light analyzed then must be of Almanza Dennis Reno Ennis Police observed a (Tex.Cr.App.1984), goldish police yellow Pontiac Sunbird p. it was stated at 171: where apartment seeking were at the Erwin Villa researching statutory “After Texas complex. companion, appellant As and his forward, from and decisional law automobile, Fitch, said Officer got out of we have that Article 36.19 ac- concluded approached Reno for identifica- asked tually separately contains standards questioning tion. Reno was While ordinary for both fundamental error and men, Shoquist and dis- Bob arrived Officer reversible error. If the error in the appellant had a concealed covered subject timely objec- was of a person (later handgun on his identified as court, in the then is reversal pistol robbery). in the Reno taken then required if the error ‘calculated re- on Fitch and drew his service revolver defendant,’ injure rights carrying pistol Fitch was moved a means no that there must be more than ground hand- placed Fitch on the without harm accused the er- some responded At this time Reno cuffs. words, ror. an error which has other Shoquist’s help Shoquist request as was properly preserved objection been will pistol. appellant over the struggling with long call for reversal as as the error struggled appellant Both officers with not harmless. possesion of struggle Reno lost and in the hand, objec- if no proper “On the other pistol taken from Fitch. The he had tion was made at trial the accused him,” him, shoot appellant yelled, “Shoot must claim the error ‘funda- During Reno in the neck. and Fitch shot mental,’ only if he a reversal will obtain followed, appellant es- the confusion that egregious the error and created is so ap- caped squad car and was police in a not such harm he ‘has had a fair speed high after chase prehended only ‘egregious impartial short trial’—in appellant when the which terminated harm.’ medi- squad car a concrete into crashed degree “In both situations the actual an marker. assayed light harm must be stage the trial State penalty At evi- jury charge, entire the state dence, paragraphs the enhancement including the contested issues and waived actual, robbery convic- harm to alleging prior just theoretical indictment omitted)” (Citations convictionfor the Em prior burglary the accused. tion and punishment. supplied. phasis See also Lawrence v. purpose of enhancement V.T.C.A., Code, (Tex.Cr.App. 12.42. How- Penal See ever, 1985) (“[b]y failing object under Article in State introduced 37.07, V.A.C.C.P., part appellant’s case, appellant charged stant prior felony “prior five showing egregious criminal record” actual harm under Almanza.”) reflected that This evidence convictions. appellant penal had been to 39-year-old analysis applying In the to this Almanza on occasions. The record institutions three portion charge unobjected to at the “breaking conviction reflects a federal trial, stage although penalty of the the shipping a fixed to interstate in viola- seal error, agree charge I cannot that the 2117,” U.S.C., forgery Sec. a tion of egregious so and created such error is conviction, burglary conviction and two appellant “deprived of a the harm that These robbery convictions. convictions 36.19, impartial fair trial.” See Article undisputed.

were V.A.C.C.P. Examining charge penalty the at the agree I statute is unconstitu- While the trial, subsequent find that stage of the we tional, agree judgment I do not that the giving charge the law the punishment assessed conviction the court, question the near the conclusion need to be reversed. charge, jury: the instructed the “You further instructed that TEAGUE, concurring Judge, case, determining in this dissenting. among you yourselves are not discuss opin only join majority I III of the Part long required how defendant will be Judge ion that is authored for the Court any you serve to im- sentence decide 4(a), that Art. Clinton declares pose. ex- Such matters come within the V.A.C.C.P., in statutory parole law jurisdiction of the of Par- clusive Board statute, struction unconstitutional because dons and Paroles and the Governor provisions it of law violates the due course and are no State Texas concern see the of the Texas Constitution. Also yours.” concurring opinion I filed that in Andrade question posed determination of (Tex.Cr.App. charge must as a be read whole. I 1985), pointed why out such an not probably would run afoul Examining argument pen- the jury at the process clause of the Federal Con the due trial, alty stage I find no mention Amendment, but stitution’s Fourteenth charge. pros- or the applicable Tex perhaps would run afoul imprisonment, indeed for life ecutor did ask provisions. as upon Constitutional carefully that facts but he based appellant’s offense and arrest and disagreement My with the statute main felony appellant’s prior five convictions. states, namely: majority opinion is as the punishment will be Further, Almanza, supra, p. “The risk that based considerations extraneous wrote: [inadmissible] constitutionally society in a that intolerable finding hold “We error concepts fairness demands of fundamental beings jury court’s —not justice system.” in its be honored criminal inquiry; step the next is to ends—the 537.) (Citations omitted.) see (Page Also evidentiary along make an review I in An concurring filed Davis, lines of that described above in However, given drade, the fact supra. Tex.Ct.App. supra S.W. [28 complain in the trial (1890); appellant did of error dism’d 139 U.S. writ being given to 651, 11 (1891)], the instruction S.Ct. 35 L.Ed. 300 court about presented the facts were part jury, other well as review may might have enabled the to assess as a whole which record illuminate punishment did, agree unable am Legislature, statutes enacted our or did Judge majority opinion’s Clinton’s complain con- not about some of this Court’s instructing clusion that the error in questionable decisions, laying thus deny was “calculated appellant] predicate complain [the later about the mat- impartial a fair and trial on the issue of Supreme ter before the Court of the United punishment.” (Page 537. court, Footnote omit- States or in federal our State’s crimi- ted.). probably progress- nal law would not have very ed began far from where it in 1836. clearly The record reflects that when the you me, If go do not believe and read the judge world, made it known to the Supreme decisions Court of the appellant course, and his attorney, of directly United States that involve criminal going give that he was Texas, cases from which that Court re- statutory parole law instruction that is de- versed, holding that what this Court said by majority clared of this Court today in was the federal constitutional law of the unconstitutional, this case to be ap- neither really land was not that law. Those deci- pellant attorney nor complained by his sions, standing alone, actually make a com- timely properly objecting to the trial pendium on federal constitutional law. act, judge’s any nor is there evidence might record that reflect or indicate that Legisla- When a statute is enacted appellant jury did not want so instruct- facially ture of this that questiona- is By ble, here, ed. their subject, silence on the I must only I find that it is not within they assume that were satisfied province parties with the timely and judge giving trial properly question instruction on the in the trial court the statutory parole instruction; law law Legislature other- wisdom of what the has enact- wise, ed, it stands to they they reason that would actually legal duty ques- have a timely have properly complained. validity tion that statute’s in the trial court. Legislature When the conviction, this State en- appeals When a defendant his acts a validity highly statute whose ques- complain and he did not in the trial court tionable, facially and is complains appeal, unfavorable to the about he appel- what on defendant, parole such as the usually law instruc- late courts hold he that waived that here, or, implicated statute that is complaint, ordinarily it, and will not review matter, or, contention, when this Court hands if down the court reviews the an highly ques- that announces a opinion regarding what is stated in the law, principle tionable notwithstanding complaint nothing actually amounts to less dicta; service, that at the lip moment time when the stat- you than dicta or obiter if applied ute or decision is please. invoked and in a law, “good” criminal case it is then I find In the instance the defendant does where upon it is still incumbent the defend- complain not in the trial court about attorney

ant or his timely properly statutory parole mandated law instruction complain in if the trial court the defendant here, jury, as occurred before revers- complain appeal desires to later about exist, ible error shown to it must be statute, principle or the of law an- established that affected Court, nounced this in the event there is fairness, integrity, public reputation appeal. If neither the defendant nor his of the defendant’s trial that it caused the court, attorney complains in the trial I find miscarriage jus- trial to be labeled “a relegated defendant is then courts, tice.” In Federal this is often re- asserting can, if proving, he that the Hunter, “plain ferred to as error”. See above caused his trial to result in a miscar- (1984 edition). Federal Trial Handbook 2d riage justice. Texas, before Almanza v. unquestioned It (Tex.Cr.App.1984), should now be that had was decided Court, attorneys past all by majority of this State a this was usual- this timely properly complained ly parlance in the trial referred to in common as “fun- error”, questionable courts of this State about damental “fundamental constitu- provided degree or “error of di- ed tional error” constitutional to that a first felo- ny, I find mension”. am unable to that the law instruction so infected the I pause point out that nowhere in phase appellant’s trial that the assess- Almanza, supra, of a statu- subject is the imprisonment by jury ment of life instruction, torily jury created miscarriage justice. declared statute is later to be unconstitu- Court, the defendant is shown to have discussed, Where tional either ex- timely properly complained the trial implication, and, pressly byor because we judge giving jury court about the trial dealing statutorily here with a enacted instruction, statutory parole I instruction, law non-statutorily and not a judge trial would find that the committed instruction, created which is de- now instruction, giving trial error in al- Court, clared to be unconstitutional though at the time of the defendant’s trial Almanza, inapplicable to this giving law instruction was concurring case. This is what causes the apply not error. then invoke and would dissenting opinions that are filed in principle provided in Rule law this cause to be flawed. 81(b)(2), Procedure, Appellate Tex.Rules of case, the facts of this I do not Given provides to that if cause. That rule person, rational much less believe this Court finds that error occurred Court, judge unequivocally on this can court, trial judgment the trial court’s shall beyond state reasonable doubt that reversed, appellate “unless the court statutorily created instruc- beyond determines a reasonable doubt that given tion that was in this cause so infected the error made no contribution to the con- punishment phase appellant’s punishment”. viction or to the I would miscarriage justice that it caused a particular then remand the cause to the jury occur appellant’s when the assessed appeals court of from whence the case punishment imprisonment. at life came, appeal for that court abate the cause, In appellant this was on trial for judge the trial court in order for the trial committing aggravated the offense rob- hearing” conduct “a harmless error so that bery, degree a first felony, which carried so, might the if to do it desires be punishment “hard time” anywhere from 5 given opportunity the to establish on the years years' to 99 record, evidence, confinement the De- admissible relevant partment Corrections, that none imprison- jurors pa- or life the considered the Department assessing ment in the pun- role law instruction Corrections. course, instance, question ishment. Of because jury, assessing appel- testimony only can be answered from punishment lant’s only was not entitled to all jurors, necessary it would be case, consider the facts of the also but was have all jurors testify State at entitled to following indepen- consider the hearing, or account for their absence. dent criminal appellant offenses that com- offenses, unlawfully mitted: 2 theft blush, my suggestion might ap- At first offense, carrying deadly weapon either pear contrary provisions to be to the aggravated police assault of- on a officer 606(b), Rule Texas Rules of Criminal Evi- 1 attempted capital fenses or murder of a However, rule, dence. it is not. That con- police offense, felony officer theft of trary counterpart, facially to its federal is police car. The State also established internally self-contradictory in that the sec- punishment stage ap- trial that part ond of the rule washes out the first pellant had penal been to institutions three However, part of the rule. because the prior felony times and had five convictions only applies “inquiries] rule on its face to which involved the for- indictment”, State offenses of validity into the of a or verdict gery, burglary, robberies, two and the fed- it should not control a “harmless error” breaking eral offense of a seal fixed to type hearing, the result of which could not facts, shipping. conceivably validity jury’s interstate Given these affect the notwithstanding verdict, i.e., instance, punishment that was limit- it is not the attacked, being it

jury’s totally verdict immune being called to testify, determining pa- what effect the I jury erroneous fear that serious misconduct will might upon role law instruction place, have had commence to take to the detriment jurors they when decided the defend- of the State well as accused. Under- punishment. standably, if jurors ant’s none of the a crimi- questioned, effect, nal case can be then the significant only question any, parole if might law instruction jurors would be asked at the “harmless jury have had on the can never be deter- hearing error” whether the law holding mined. The result of such a would instruction had effect on their decision every single mean that criminal conviction to assess the that was as- that has in this occurred where the sense, sessed. In a law instruc- given law instruction was over ob- communicating tion amounts jection, will have to reversed or set aside information, prejudicial external appellate this or some other court. As a to “outside amounts influence”. Hon. Lin- Court, private member of this as a as well Addison, attorney da of this who State, I, one, citizen of this am not frequent legal is a contributor of articles to ready give internally to vote self-con- Journal, recently the Texas Bar and cor- 606(b) tradictory interpretation. Rule rectly pointed out in her article entitled Therefore, Jury: Unbecoming part “Conduct I III only join Rule of of the 606(b)”, September, 1987 Texas Bar Jour- that Judge Clinton authors for a nal, permits jurors testify majority Court, that the rule in which the statu- if “it can be shown tory parole that an ‘outside influ- statute is de- improperly brought upon respectfully ence’ was to bear clared I unconstitutional. dis- (872). any juror.” necessary, holding original If this Court sent to the that the error interpret permit Legislature, should the rule to interro- that was committed gation jurors improper where communi- was into execution carried was, alone, judge, standing cation with the If has occurred. “calculat- internally self-contradictory 606(b) deny appellant] impar- Rule ed to a fair and [the interpreted punishment.” can be no matter mean that tial trial on issue of hold, instead, given what the external prejudicial communica- would circum- been, case, jurors tion with the might have stances and facts of this error totally absolutely miscarriage immune from not such caused a that it course, being testify, then, judgment justice, called of and affirm the is of would obviously time for of appeals, this Court to rewrite the of the court which affirmed the jurors judgment rule. Once the word is out that court’s of conviction.1 are trial majority opinion 1. what is in Given the for the "egregious than error a harm” could be more Court, fully comprehend I am able to what the deny right charge of an that “calculated part penultimate first of the last sentence impartial trial on the a fair and accused to states, “Therefore, paragraph hold that we Arti- Although majority punishment.” a of issues of 37.07, 4(a), along cle Section the instruc- Appeals found Dallas Court of the mandates, I, tion it Article Section 19." violates constitutional, V.A.C.C.P., 4(a), Section holding However, given opin- what stated in the is not with, found, disagrees it also this Court ion, loss, appellate I at a total am as I am sure stated, statutory instruction that the for reasons prosecutors, judges, judges, trial defense attor- deny appellant egregious a fair so as to was not be, neys, part and defendants will what the last pun- of impartial by jury on the issue sentence, of the "and is which states calculated majority opinion for Court Is the ishment. deny right impar- of an accused to a fair and that, words, my although saying the statute is (footnote punishment”, tial trial on the issue of omitted), unconstitutional, statutory the supposed means or to mean. A deny egregious so that it was calculated was majority of this Court in v. 686 Almanza impartial the appellant fair trial on issue a approved (Tex.Cr.App.1985), S.W.2d 157 lowing fol- this, notwithstanding punishment, it did not of statement, hand, "On the other to-wit: if impartial deny fair trial on issue him a objection proper no made at trial and was punishment? slightly contradictory? of Isn’t this accused must claim error was that the 'funda- Almanza, supra, fact that the er- mental', Given the under only he will if obtain a reversal charge egregious, giving it would was ror appear egregious error is so created such harm was automatic reversible that the error impartial he ‘has not had a fair and trial’—in I dissent error, please. you Well, (171). if ‘egregious Plain error. short harm’”. what

545 statute, McCORMICK, Judge, dissenting dating on is unconstitutional.” Rose, appellant’s petition discretionary p. review. To later our United avoid review Rose by any justly Court,

A other Supreme majority name is a States at walking appellant of solidify convicted streets tempts process its due conclu guilty Texas with other felons will be grounds who deprive sions on thus State consequences their released from the of people the State of Texas of their convictions as a result of this To- Yet, decision. due course law. to reach the due day, pro- majority the result oriented has majority course of law issue the cites deci duced a false flower of fairness camou- rely entirely sions of this Court which on flaged pseudonym justice. Gag Supreme United Court cases: States Scarpelli, 778, non v. 411 93 S.Ct. U.S. majori- wrong There is so much with the 1756, (1973); Morrissey v. 36 L.Ed.2d 656 ty opinion that to dissent in full would Brewer, 471, 2593, 408 U.S. 92 33 S.Ct. require writing of at least a vol- two Florida, (1972); Gardner 484 L.Ed.2d Legislation: ume treatise entitled “Judicial 97 L.Ed.2d 430 U.S. S.Ct. Ignoring A Means to an End.” a constitu- (1977); Georgia, Presnell v. 439 U.S. approved people tional amendment (1978); and Cole S.Ct. L.Ed.2d 207 Texas, majority, of the State without Arkansas, v. State U.S. S.Ct. logic, conscience, rationale or strikes down (1948), which are 92 L.Ed. cases judicial passes statute which muster distinguishable clearly the facts every jurisdiction that has addressed com- presented here. parable Perceiving law. charge complained ap- of here catches the opinion, Judge 9 of footnote his Clin- pellant in an unconstitutional Tinker Ev- passing ton to the land- makes reference play, ers to Chance1 majority double Almanza mark decision “independent” umpires calls foul. (On (Tex.Cr.App.1985) S.W.2d 157 Rehear- only

One read paragraph need the first ing) noting merely because majority opinion of the recognize given, law instruction was reversal man- quicksand upon which the decision rests: Judge dated. Clinton seems have for- gotten valuable that he solely “Based the Constitution and contribution Texas, jurisprudence through laws of the Texas State we find made to will instruction, such an man- well as the case of Almanza.2 minimum, given because at a what why unobjected to or not which discuss holds, cause should be remanded to complained statutory about error was error, appeals the court hopefully for it to reconsider the although perhaps not reversible light matter court’s persuasive, declaration these are not the of this Court words the statute is Appeals. They only unconstitutional. When the cause or the Court of Dallas originally appeals, before the court the words respective individual members light presump- court viewed the statute in honestly courts. believe that the tion that the statute was This constitutional. of the bench and bar of this State will members declaration, course, changed Court’s of majority has that as to how this Court’s be at a loss perception, and matter should now be opinion tell the be received. To bench should by appeals of viewed the court in line this is unconsti- this State that the statute and bar of holding holding Court’s that the statute is unconstitu- this not to tell them how tutional but However, previously pointed tional. out, as I have applied particular case in the to a should be light in nothing. of the circumstances and facts of to tell them future is almost cause, punish- this did the error not cause the (SS), (2B), Johnny Joe Tinker Evers 1. In ment to be that was assessed labeled "a miscar- (IB) Chance were elected and Frank riage justice." majority Is of this Court Cooperstown, Hall of in National Baseball Fame implicitly majority adopting the reasons that the Today’s will un- New York. doubtedly Appeals gave why of the Dallas Court as replace Terrible" in “Almanza charge deny statutory error did and not Teague’s opinions. Judge bad "Hall of Fame” of deprive appellant of a fair trial on the issue of Almanza, by Judge what Clinton should have been 2. At the time he wrote assessed jury? by broadly, holding As to remarks “fundamental the individual wrote that all Court, justices appeals charge be on the court and this error” in the court’s must reviewed know Almanza prece- degree As all was the “In both we situations the actual dent-setting by decision handed down assayed light harm in must be out the sole Court which set standards jury charge, entire the state of the evi- reviewing preserved in both be used error dence, including the contested issues and in unpreserved charge error the court’s evidence, weight argu- of probative jury. to the Since issue before the any ment of counsel and other relevant jury— Court concerns an instruction to the information revealed the record of the specifically, law instruction man- as a 171. whole.” 686 S.W.2d at dated Section V.A.C.C. finding error in the “We hold P., had by must be the standards —review charge jury begins court’s to the —not Almanza. in enunciated inquiry; step next is to ends —the charge error “If the was the evidentiary an make review ... as well timely objection of a in subject the trial any part as a other review court, required then reversal if the may record as a whole which illuminate injure rights error is ‘calculated to actual, theoretical, just not harm defendant,’ no which means more State, Woods v. accused. See also some than there must be harm to the (Tex.Cr.App.1983) adopting S.W.2d 1 words, accused the error. In other State, Hill v. dissenting opinion in properly pre- an error which has been Robinson (Tex.Cr.App.1982); S.W.2d 879 by objection will served call reversal State, v. (Tex.Cr.App. 596 S.W.2d 130 long as as the error is not harmless. State, 1980); Sattiewhite v. 600 S.W. hand, if proper objec- the other no “On (Tex.Cr.App.1980). 2d 277 at trial and the accused was made any “To the extent that it holds must claim that the error was ‘funda- reversal, Cum requires error ‘automatic’ mental,’ only he obtain reversal if will State, bie v. (Tex.Cr.App. 578 S.W.2d 732 egregious and created error so 1979) overruled, opin as are all other ‘has a fair such harm that he not had impartial ‘egregious ions inconsistent herewith.” S.W.2d trial’ —in short harm.’ at 174. State, pursuant in set out in Re Cumbie 578 S.W.2d [v. tests classified (Tex.Cr.App. Almanza. however, 1979)] appel apparently having proper cently undergone a as fit reversal, heart, Judge hedged fol change has on it does not Clinton late consideration long particularly premise, qua in error is no his dissent in Law low that ‘Cobarrubio error’ State, process (Tex.Cr.App. funda 700 S.W.2d 208 'a denial of due in the most rence er sense,’ id., 1985), Overruling he at Cumbie where wrote: mental change nature and charac did not serve to (Tex. ‘In Cobarrubio 675 S.W.2d 749 [v. ter of an error.... precipitat Cr.App.1983) said that ‘this error ] we only ‘[t]o "... overrules Cumbie [Almanza] process ed a denial due law the most any charge requires that it holds error extent sense,' id., Thus, FUNDAMENTAL at 752. ‘Co- reversal,’ 174; Almanza, did we “automatic” error, just as barrubio error’ is constitutional catalogued purport say errors in Cumbie by opinion recognized in 1 and headnote Indeed, longer no ‘reversible.’ our remand it in several decisions collected under Texas Appeals the Fort Worth Court of was ‘to make Digest. judges years So did than two all more light ex- of considerations such examination ago Jenkins No. [740 435] pressed part opinion,’ II of this ibid. 64,004, 16, 1983, February delivered but still clearly egregious it be cause, "Let understood an pending rehearing. very as appellate must before an Cobarrubio, error first found Appeals well the Austin Court of evidentiary step takes next court ‘to make Supreme relied on three decisions Court along review the lines that described in Davis’ of the United to underscore its own deter States Tex.Ct.App. [v. error of constitu mination fundamental (1890) pertinent part presented by to review other ] tional dimension was the State. obviously But strength the record for actual harm. assessment Court egregious errors so that such a there some Cobarrubio not weakened the mere fact objection Alman- review will not save them. Nowhere in that it was made in the context of longer recognizes charge. say, we “ThisCourt no to the did za per error,’ jury charge "Though preserved as intimated error’ not se reversible ‘Cobarrubio appellate majority opinion." 700 S.W.2d at 217- have necessitated auto- in the review 'would original) (emphasis group matic reversal’ under one of decisions

547 State, interpret 696 courts should seek to statutes also Thomas v. 723 S.W.2d See State, constitutionality sup 703 such that their (Tex.Cr.App.1986); Teague v. Dairy States v. United National ported. (Tex.Cr.App.1986). S.W.2d 199 Products, Inc., 372 U.S. 83 S.Ct. 9 Almanza, holding in Under this Court’s State, (1962); Faulk v. L.Ed.2d 561 608 fundamental a determination whether parte Ex (Tex.Cr.App.1980); 625 S.W.2d charge requires a exists in a error Granviel, supra. And the wisdom of a v. State Lawrence analysis. case-by-case legislative legislative pre act is within the (Tex.Cr.App.1985). No 208 700 S.W.2d this, rogative, or not within the wisdom of any court longer may this Court Davis, v. Smith any other court. 426 S.W. per se rule reversal appeals announce a (Tex.1968). 2d 827 charge any specific error —such opinions may The fact that differ as to of an unconstitutional application as the constitutionality of a statute should not majori- Thus the charge. statute in a be a sufficient basis strike down the approach initial ty is in error in its Instead, legislation. it should militate case. analysis of the constitutionality, favor of unless it is so mind, I premise in now make a With that apparent that reasonable minds could not case, using analysis of the instant correct statutory the rules of con differ. Under analysis espoused by Judge step the two struction, court a statute before a declares Clinton Almanza. unconstitutional, some deference should be paid to decisions of other courts which have I. provisions. today, Yet construed the same step necessary to an Almanza The first majority ignores interpretation analysis is a determination of whether appeals every court of of this State which jury charge. error in the As will there was has considered the issue. See Torres v. infra, seen, only majority is the State, (Tex.App. 725 S.W.2d 380 — Amarillo holding the statute incorrect State, v. 1987); 385 Garcia 725 S.W.2d unconstitutional, there is not even Mathews v. 1987); (Tex.App. — Amarillo majority error. The determines uncon- State, (Tex.App. Corpus 491 725 S.W.2d — First, stitutionality grounds. two State, 724 S.W.2d 1987); Colter v. Christi jury charge unconstitutionally such a vio- Alvarado v. 1987); (Tex.App. 925 — Austin provision lates the of State, (Tex.App. 723 318 S.W.2d — Austin Ill, CONST., and, Art. Sec. TEX. second- State, 724 S.W.2d 832 (Tex. 1987); Rose v. ly, is unconstitutional as a violation State, 1986); Boudreaux v. App. — Dallas I, Due Art. Course of Law clauses of Secs. (Tex.App. 230 723 S.W.2d — Beaumont 13 and TEX. its zealous- CONST. State, 722 S.W.2d 725 (Tex. 1986); Joslin v. get quickly ness to to the matter revers- State, v. 1986); Casares 712 App. — Dallas ing conviction, carefully (Tex.App. 818 S.W.2d [1st Dist.] — Houston ignores any discussion regarding the rules State, 1986); 772 Patton v. 717 S.W.2d constitu- statutory construction where v. 1986); Zaragosa (Tex.App. Worth — Fort good reason tionality And for issue. State, (Tex.App. Corpus 721 429 S.W.2d — dic- —the and well-settled law established State, Hardy 1986); v. 722 S.W.2d Christi against of the result- tates the conclusions 1986); (Tex.App. 164 Dist.] [14th — Houston majority. oriented State, (Tex.App.— v. 587 Ruiz 726 S.W.2d v. process 1987); consider- Gaines Under both federal due Houston Dist.] [14th law, State, (Tex.App.—San ations and our the determi- to own State 302 An State, v. constitutionality 1987); nation of the of a statute 725 Garcia S.W.2d nio v. 1987); Smith begins statute presumption (Tex.App. with the that a 385 — Amarillo v. Town (Tex.App. is constitutional. Goldblatt S.W.2d — Houston Hempstead, v. 1987); Aranda 369 U.S. 82 S.Ct. [1st Dist.] 1987); Granviel, (1962); parte (Tex.App. Paso Ex L.Ed.2d 130 S.W.2d — El (Tex.App.— Clark (Tex.Cr.App.1978). S.W.2d 503 Likewise 1986); McGowan jurisdictions, both the federal and Houston Texas Dist.] [1st State, conviction, (Tex.App. impeachment, after ‘on the writ- S.W.2d — Dallas State, v. 1987); Carter signed 727 S.W.2d 108 ten recommendation and advice of v. 1987); Salazar Paroles, (Tex.App. Worth Pardons the Board of and or a — Fort State, (Tex.App. No. 02-86-00059-CR thereof, grant majority reprieves and — Fort State, v. Winton Worth, 12, 1987); March par- commutations of ” 1987); (Tex.App. IV, 11, 727 S.W.2d 687 Commentary, Art. dons.’ Sec. — Texarkana State, Sanders (Tex.App. S.W.2d TEX. CONST. State, Flores v. 1987); —Texarkana was, 1936, gubernatorial It like abuse 1987); (Tex.App. Antonio S.W.2d 691 — San Legisla- that led to the 1983 amendment. Foy v. (Tex.App.— disgust governor’s tive with the increased Miller v. 1987); Waco 723 S.W.2d 789 parole recommendations failure to follow Hernandez 1987); (Tex.App. — Dallas of the Board of Pardons and Paroles (Tex.App. Corpus 730 S.W.2d 35 — proposed to re- prompted the amendment 1987); many more too numer Christi entirely from the Governors move ous to list further. clemency powers.3 Today, no mention logic controlling or judicial Without made in the Texas Constitution relative having any function precedent, majority justices tells the executive branch appeals they the courts of were The ma- authority paroles. relative to wrong ballpark, judg- and reverse their since the constitutional jority implies that explanation ments without a rational authority for the Board of Pardons why opinions their were out of the them CONST., IV, TEX. Paroles remains in Art. strike zone. Our learned brethren on the agen- agency an executive is therefore appeals more. The ma- courts deserve Hogwash! appears It still there be- cy. jority explore possibilities fails even to is the article and section cause that valid, ignoring the statute is thus all parole from remove required amendment to statutory rules of construction. concommitant executive branch —a

limitation on the executive branch. Separation Powers A. IV, 11, TEX. confusing Art. Sec. CONST., II, CONST., TEX. and Art. Sec. Relying primarily on the historical view attention pay particular together, we must function, was an executive The provision. majority to the latter constitutional concludes that the 1983 amend- CONST, II, generally IV, ment of Art. Sec. to Art. Sec. function TEX. did prevent the concentration position not alter the conceded to be to the Board of Par- single person, dons and hands of a agency power Paroles as an “constitu- designed provision is Department,” group. tional status in the Executive class or and, despite and bal- system such of checks amendment “remains to facilitate the always where it has been —in the three distinct branches Executive ances between Department.” nothing Such conclusion is prevent one branch government and “opinion” more than the granted by result-ori- usurping powers majority maliciously ignores ented branches more of the other people to one or II, Commentary, Art. government. See facts! 1, TEX. CONST. Sec. opinion, the As noted in the remembered, in determin- must It IV, inwas to Art. Sec. 1936 amendment case, clear ex- is a ing present there gubemtorial of the clem- response to abuse pression in the Constitution of the Board ency power. The creation clemency power has been component as a constitutional Pardons and Paroles (Executive). from the Governor removed clemency designed “to limit the body was to state “Thus, exactly correct it is not providing that Governor powers of the principle of except cases treason in all criminal hearings. recordings File, Library, audio Legislative S.J.R. Reference accompanying Leg., file Acts 68th

549 component clemency power by of the has prohibiting performance role absolutely by historically which their vested in the executive department one acts been belong long- to no government. nature another. But this is essential branch Rather, a statement is that Today the correct function is er true. constitutionally department may exercise Legislature by to the Constitu- granted nature, any power whatever its essential by Legislature to delegated tion and Constitution, has, by the del- which been and Paroles. the Board Pardons it; may egated exercise to but that it granted (No. petition Haynie constitutionally granted powers not so 024-87, pending), the District At- Assistant not their nature do which from essential provided analysis torney has excellent governmental fall within its division extensively from the quote the issue. II, Art. Commentary, Sec. functions.” by filed Sullivan Berdanier: brief Pamela TEX. CONST. powers separation of “Insofar as the summa- Appeals The Court of has Austin Sanders, argument applied in [su- quite succinctly: rized the law language pra], quoted first that “We believe that it is well settled from footnote in the Court’s ear- taken a a states prohibition this constitutional opinion in lier Heredia v. rigid government a principle of and not Sanders, (Tex.Cr.App.1975). organiza inas table of classification a However, one to at 351. when turns interpreted provision tion. This must footnote more Heredia to examine this along provi other constitutional closely, holding it that the is clear sions, done is clear and when this is it proper is for the it was Heredia things; three that the Constitution does charge a to the trial court to submit (1) provides polar it three functions informing on how them not deliberate (2) pow government; delegates it certain required to long a would be defendant departments in a ers to of the three each sentence, satisfy a be- serve order powers; governmental of all distribution grant parole cause the determination (3) legislative, executive it blends province of the beyond the is judicial great many powers in a Rather, parole ‘exclusively is the courts. omitted). (Footnote proper cases. province of the exec- within the a matter II, interpretation of Sec. 1 is there Art. prop- under government, branch of utive proper fore its context. The dictated regulation by legislative branch. er provision interpretation “pro IV, Constitution.’ Texas Art. Sec. hibits a whole mass transfer of Heredia, 4. n. department one to anoth from “Thus, applicable it as insofar prohibits person of one branch er it issue, holding of Heredia exercising historically present power contrary points which inherently belonging depart to another establishes two 1) position]: even with- may interpreted in a majority’s ment. It not be to [the statutory way prevents cooperation express or coordi authorization out may prop- or more branches Legislature, nation between two the trial court altogether any government, hindering ef not charge erly de governmental assessing action. It was fective parole laws consider the function, checks and bal signed, as were other (the sentence defendant’s ances, prevent State Board submit, excess. com- would State Betts, 158 Tex. 2) Insurance here) pursuant plained of S.W.2d (1958).” CONST, v. Wind Coates IV, admission art. Sec. TEX. ham, (Tex.Civ.App.— 613 S.W.2d 572 granted power is a of a convict Austin, 1981, writ). (Emphasis sup no proper under branch the executive plied) branch legislative regulation longer light true is no recognized As and as [which noted amendment], which 1983 constitutional dictum this Court in Sanders v. usurp. may pa- (Tex.Cr.App.1979), judiciary Act, proceeding analysis “Before with the Controlled Substances the Court Smith, held, among addressing question IV, it had that Art. IV, government ‘resentencing’ previous- Art. Sec. branches of Sec. barred provisions pres ly constitutional other convicted defendants since it amount- parole component of ently place the the commutation ed to of a previously Giles, necessary briefly to clemency power, it imposed sentence. at 783-786. Ex opinions, the other digress discuss points “Three should be made re- with Giles, parte (Tex.Cr.App. 502 S.W.2d gard to Smith Giles: ex rel Smith Black and State 1974) 1) Both claims of a cases involve statu- well, (Tex.Cr.App.1973), 500 S.W.2d tory right of a previously to a reduction cited in Sanders proposition for the imposed changes sentence. These in the clemency powers embodied in the theoretical, sentences were not but real system beyond are the reach of interfer specific. Sanders, judicial ence the branch. 2) cases, governor’s power In both opin at 351-52. The Smith 580 S.W.2d sentences, power to commute his validity ion dealt with the of 4.06 of Sec. parole, admit convicts was found to Act, Substances TEX. the Controlled usurped by legislature’s be enact- (Ver art. 4476-15 REV.CIV.STAT.ANN. resentencing provisions ment of con- had, 1974). Legislature non In 1973 the tained in Act. the Controlled Substances by adoption of 4.05 of the Controlled Sec. greater Commutation is a form of clem- (sic), penal Substances act reduced the parte Ex ency parole. than conditional (sic) involving marijuana ties for offenses 51, 303 Lefors, 165 Tex.Crim. S.W.2d 394 prescribed by below those TEX.PENAL (1975 [1957]). (Vernon 1925). 725b CODE ANN. Sec. 3) Smith Giles absolutely have provided person that any Section 4.06 nothing wording to do with previously marijuana-relat convicted charges. be, (sic) upon petition should ed offenses point, “At we can turn from a court, convicting pur- to the resentenced prior discussion of the case law to the (Sec. 4.05) penalty provision suant to the express provisions discussion of the the Controlled Substances Act. CONST, IV, TEX. Sec. 11. art. Smith, 102-03. The Court of Criminal paragraph gives “The of Sec. compelled first Appeals ‘resen- held that legislature power to establish a tencing’ person already of a convicted Board of and Paroles and to Pardons and sentenced amounted a ‘commuta- require give imposed record and reasons for previously tion’ sentence. it to of the Smith, enact laws. The power Because the its actions and to at 103-04. given paragraph was second of Sec. deals commute sentences with governor’s governor IV, grant Sec. the court ‘re- by Art. legislature prieves, punishments could not alter held that commutations in this fines previously imposed pardons’ sentences and to ‘remit and for- fashion, judiciary feitures,’ it clothe the powers may nor could but even these Therefore, the Court power. governor only with this exercised with a 4.06 struck down Sec. Controlled of the Board of written recommendation grant Substances Act. Pardons With this and Paroles. legislature, Giles, authority, approach uti- constitutional “In same pursuant to TEX.CODE CRIM.PROC. to strike down Sec. lized the Court 42.18, (Vernon Sup. 6.01(c) ANN. art. Sec. newly enacted Controlled of the 1986), designated the Board of Par- Act, provides for re- has Substances agency ‘the provisions dons and Paroles as of the sentencing under the government power exclusive State with Act for offenses Controlled Substances paroles.’ Pursuant to Sec. prior date. to determine committed to its effective 3(d) 42.18, supra, regard Giles, sen- of Art. Board With been who had makes the determi- of the Pardons and Paroles tenced before the effective date Granviel, paroled parte nation of who shall be under (Tex.Cr.App.1978). supervision, conditions and level of what pa- also determines issuance of revocations. role parole power component “Because the “Thus, IV, Art. while Sec. at the power clemency solely the con- adoption placed time its province legislature, stitutional parole component clemency power give has decreed that the courts shall exclusively governor, hands jurors the instructions mandated Art. places clearly section as amended supra. Sec. Such instructions legisla- designed prevent under the control jurors from con- ture, exer- only sidering parole assessing punish- limitation on the when brief, (foot- being legisla- pp. ment.” State’s power cise of that that the 7-12. omitted) (material today The a majority finds offensive WHITE, JJ., join DAVIS and W.C. in part instruction taken almost verbatim this dissent. Judge su- opinion Keady, from Clinton’s jurors it can pra, and strikes down because longer their

no be trusted to follow instruc- OWN MOTION OPINION ON COURT’S tions. FOR REHEARING change only majority Not had a has ju of heart about trustworthiness of CAMPBELL, Judge.

rors, express change they today of heart interpretation as to due of course I. provisions our of own Texas Constitu rehearing on this case areWe long tion. has been settled law in Texas It rehearing for This Court’s own motion.1 provisions that the due course of law CONST, reexamining the correctness purpose of I, 19, Art. TEX. meant Sec. were 4(a) 37.07, holding Article § our way be construed the same majority A is unconstitutional. V.A.C.C.P. Fourteenth Amendment of United is unconstitu- City v. now holds that the statute Mellinger States Constitution. (1887). separation Tex. Houston 68 3 S.W. tional because violates And majority provi- the cases relies on of law powers course due support rely on Four such conclusions of the Texas Constitution.2 sions thereon, teenth Amendment or cases based e.g., Webbv. 161 Tex.Cr.R. II. (1955),

S.W.2d 158 relies on Lisenba Peo ple California, U.S. 62 S.Ct. object trial, appellant did not At (1941). 86 L.Ed. 37.07, charge by Art. mandated 4(a). such a failure hold that today, pro- We Until constitutional due § not, in- presented object context of cess would have been does issue opin- 2(b). joining portion judges Tex.R.App.Pro. 2. motions rehear- Those The expressed ion ascribe to the conclusions Attorney, ing State Prosecut- filed the District Clinton, opinion, original Arti- Judge our ing Attorney appellant hereby over- 37.07, 4(a) separation pow- violates § cle ruled. II, provision, and the due course § Article ers case, appellant’s ground for some stant waive other standard of harm should be applied to the holding. instant case. explain this review.3 We will now Generally, appellate review of error recently de A of this Court criminal cases is conducted in two-step 32A.02, Article V.A.C.C.P. clared [herein process. step The first is to determine Act], unconstitutional Speedy after: Trial what, if any, error occurred in the trial. Meshell v. entirety. void in its step requires The second us to evaluate the (rehear (Tex.Cr.App.1987) error in order to determine whether it calls 4, 1987). holding ing denied November opinion reversal the conviction. Our enacting Meshell announced that original submission held that Article Legislature had violat Speedy Trial Act the 37.07, 4(a) passed in contravention of § powers doctrine under separation ed the the Texas Constitution’s due course and II, Constitution. Article 1 of the Texas § separation powers provisions. Thus, our recently held that an unconstitutional We analysis harmless error will be based on inception from its and can statute is void whether the error of applying a constitu- right relief. provide any a basis for tionally infirm statute to a defendant (Tex.Cr. 751 S.W.2d 502 Jefferson type reversible. This of “statutory” error 11, 1988).4 May 0327-85 delivered App. No. distinguished should charging from er- Tex.Jur.3d, Constitutional See also ror as envisioned Article 36.19 V.A.C.C. Law, (and at 548 cases n. 33 there § Almanza, supra. 36.19, P. and of). Almanza, upon thus is invoked a violation Act, Speedy Like de- Trial we have any through of Articles 36.14 36.18 V.A. 4(a) clared Art. unconstitutional original hold, C.C.P. Our did not alia, for, inter violation of the any parties nor alleged, have doctrine. One of the effects of presents in the instant case holding Speedy Trial Act void was to statutory provi- violation of of these litigants objecting relieve at trial or sions. raising appeal. the issue on direct Jeffer- 81(b)(2) Tex.R.App.Pro. provides gen- son, supra. By analogy, in the instant applied by eral harmless error test to be case, appellant is also relieved of the obli- appellate courts in criminal cases. Reyes gation objecting at trial. See also appellate If the record in a criminal case State, v. (Tex.Cr.App.1988). 753 S.W.2d 382 below, proceedings error in the reveals appellate court shall reverse III. review, judgment appel- under unless the beyond late a court determines reason- Having appellant decided that has able doubt that the error made no contri- through not waived his claim failure to punish- bution to the conviction or to the object, we will next determine the correct ment. analysis applied standard of harm to be Initially, 81(b)(2).

this case. Tex.R.App.Pro. we will examine wheth This rule has Almanza, contexts,5 er the standard in applied variety in been a I, provision, litigants upon of law Article §§ 13 and have relied the benefits of Texas Constitution. invalidity. statute until declaration of its Lone Import, Corp., Star Motor Inc. v. Citroen Cars original 3. We note here that the lead State, (5th Cir.1961); 69 Stevenson v. 288 F.2d appellant's submission did not address failure to (Miller, (Tex.Cr.App.1988) 751 S.W.2d 508 J. object challenged parole instruction. Duncan, dissenting). concurring and J. See also judges applied Those who would have Almanza Tex.Jur.3d, Law, Constitutional at State, (Tex.Cr.App.1985), v. 686 S.W.2d ad- thereof). (and cases in nn. 34-35 n two- tacitly through dressed the issue Almanza analysis. tiered State, 5.Murphy (Tex.Cr.App. No. 102-86 deliv 6, 1988)(Motionfor rehearing case, April pending) ered Although present not before us in the we (evidence acts); of extraneous bad Stahl v. point general think it wise to out that this rule is (Tex.Cr.App.1988)(improper jury subject S.W.2d 826 exception judgment where a has been argument); rendered under an unconstitutional statute and Bennett v. applied significant specifically particularly has been to the denial because This is this subject. rights. judge’s last word on the of state federal constitutional was (Tex.Cr. Erwin instruction, In addition to the curative App.1987) (compulsory process defend for facts of offense in favor of militate ant). countervailing is no Because there Appellant two other a harsh sentence. procedural statutory provision, rule or man, office, gun in men robbed a his 81(b)(2) analysis harm codified Rule is point. The threatened to kill three applicable the error this case. and left him on the victim bound floor.

The robbers took and the victim’s $160 later, Eight police pistol. days Ennis offi- stopped appellant companion, cers and his IV. n search, In pat-down Fitch. a the officers analysis of Applying the harm men discovered that each the two was 81(b)(2) case, ap Rule to the facts of this carrying pistol. point, a At officer pellant aggravated was convicted rob pointed gun drew his it at Fitch Reno sentence, bery and the maximum assessed began Appellant in order to him. disarm Department life the Texas of Correc officer, struggle Shoquist, with the other pro tions. We are unable know what gun. possession of the other When assessing pun cess underwent Shoquist help appel- Reno called ishment; however, the record in this case lant, Shoquist struggle. joined the presents factors which indicate that the meantime, possession of Shoquist lost error was harmless. yelled, gun Appellant taken from Fitch. him, him,” in- Fitch reading statutory parole After shoot shot “Shoot struction, During in the neck. the confusion judge read the Reno also arising shooting, appellant es- following from the instruction: police squad Appellant car. caped

You are that in deter- further instructed high apprehended speed chase after case, mining you into he the car which ended when crashed among yourselves not to how discuss concrete median. long required the defendant will be you impose. surrounding Compounding serve sentence decide to these facts ap- subsequent Such matters come within the exclusive the offense and arrest was jurisdiction During pun- Board and pellant’s of Pardons criminal record. trial, phase appellant’s Paroles and the Governor of the State ishment the State yours. Texas are no concern of waived the indictment’s enhancement two paragraphs. Pursuant Art. 37.07 3§ generally pre presume, although We V.A.C.C.P., appellant’s introduced the State rebuttable, sumption is that a follows prior Appellant felony five convictions. in given judge, the instructions trial the breaking seal had been fixed convicted presented. the manner Cobarrubio (18 2117), shipping to interstate U.S.C. § State, (Tex.Cr.App. 675 S.W.2d and, occasions, forgery, burglary, on two 1983). also, See in instruc the context of robbery. certainly, These convictions most State, 754 disregard, Nichols v. tions in addition the facts of the instant of- (Tex.Cr.App.1988); Gard fense, jury’s contributed assessment State, (Tex.Cr.App.) ner v. 730 S.W.2d punishment. — denied, U.S. -, 108 S.Ct. rt. ce (1987). Here, presumption in addi 98 L.Ed.2d 206 followed judge’s statutory totally not to use the trial final instruction to tion to assessing concerning parole disregard parole, coupled particu- in with the information punishment, larly appel- particular appellant’s heinous facts of this case and record, prior judge flatly lant’s criminal lead us told [under statutory parole their concern. conclusion that in- parole old was not law] determining dangerousness. (Tex.Cr.App.1987) (appointment psychiatrist future solely purpose of to examine defendant for the is statute unconstitutional because it vio- appellant’s did not affect sen- struction powers lates the clause of the Thus, beyond we find a reasonable tence. opportunity, Texas Constitution. Giventhe error no contribution that the made doubt will, course, I min- Tex.R.App. vote in a New York assessed. Meshell, expressly ute to overrule all of 81(b)(2). Pro. dispatch beyond Davey it far Dallas Accordingly, judgment of the Therefore, I con- Jones’ footlocker. am Appeals is affirmed. Court of join majority all of Part I of the strained to opinion. DAVIS, J., concurs in result. W.C. majority opinion II join I Part of the CLINTON, J., IV. dissents to Part appellant, by failing object holds that Judge, concurring. ONION, Presiding court, right did not his the trial waive reached, clearly but I concur in the result constitutionality challenge appeal on reasoning used

not in most of the any I parole law statute. do so without own motion for re- opinion on the court’s equivocation. It is the well established law error, hearing. The error here always adjudi- in this state that a court will kind of error. not some other cate a statute is unconstitutional whether unconstitutionality is when its obvious TEAGUE, Judge, concurring to is not raised apparent, even when issue majority opinion on Court’s own appeal. in the trial court or See rehearing. motion for under Constitutional cases collated West’s 46(2). Thus, Key given the fact that Law questions be no about So there will unconstitutionality autho- of the statute I on the issues addressed where stand parole rizing the law instruction obvious Court, Motion for “Court’s Own apparent, subject the statute was Rehearing” opinion, and this Court’s hold- by appellant time. attack ings, concurring opinion. I file this conclude, majority opinion I a matter the fact that the am still unable to Given law, principle I stated adopted stat has what Federal Constitutional that the dissenting opinion that authorizing concurring and ute law instruction submission, appel original that because is unconstitutional because it denies I filed on error, statutory charge process dealing with lant due law. See the concur we are unconsti- ring opinion has been declared filed Andrade v. and the statute tutional, dealing judicial (Tex.Cr.App. with mere 700 S.W.2d and not error, 1985). holding charge this Court stated majority opinion’s As to the what II, 686 S.W.2d that the law statute violates Art. held Almanza v. Constitution, only separa (Tex.Cr.App.1985), which dealt of the Texas error, inapplicable to this clause, judicial charge I” tion of see “Part my (“To cause, given fact that opinion, the further majority but for stare decisis plus fact to, cases”), changed, by, legal views have not abide adhere decided (1979 not see fit to solicit edi that the does Dictionary Black’s Law as to jurors in this cause tion), erroneously and this Court’s reasoned views effect, any, if law instruc- and decided decision of Meshell v. what they when might have had on them (Tex.Cr.App.1987), I would tion punishment at appellant’s majority I of voted to assess join part not that of Part the III of the join I Part imprisonment, life which holds the statute unconstitu that Rule However, opinion, that holds until tional for that reason. Me Procedure, 81(b)(2), Appellate shell, supra, by this Rules expressly is overruled general harm- Court, Otherwise, the provides us with it must be followed. which test, should be Therefore, is the one that I am less error stare decisis be damned. to in this case in order Court compelledby my office to adhere to used this oath of whether, beyond a Meshell, determination supports majori the make the doubt, made no charge error the ty opinion’s holding parole law reasonable the diagram give appellant’s op- contribution either to conviction sentences them the punishment the that was diagram or to assessed. portunity to all of the sentences 606(b), found in Rule and will not under- emphasize I I am forced to decide any event, In given take that chore. the pursuant the was harmless whether error Rule, wording excluding of the the last 81(b)(2) majority opin- Rule to because sentence, to clear me that it was the refuses to or Rule ion mention discuss apparent intent of those members of this 606(b)of the Rules Criminal Evidence. 606(b) Perhaps Court who voted for the that the sec- Rule is not mentioned or rule majority opinion discussed because half of the “x ond rule would out” the first join members this Court who Part Rule, leaving those half of the the last sentence majority opinion of the do not IV want Thus, standing alone. the last sentence 606(b) approving that in Rule be told 606(b), alone, it, standing becomes Rule Court, who did not have members give obviously only meaning can to Rule hearings of any public the benefit on the 606(a). rule, comprehend failed to that the Rule page majority opinion On states: to no half amounts rule because second process “We are to know unable what clearly of the Rule “x’s out” first half assessing punishment underwent Rule, resulting of the in the fact that thus us, If jurors ...” can tell come we how petit ju- there is now no rule that forbids clearly know? To decide the are unable to testify validity pun- rors to to the their issue, jurors one must do is ask the all ishment verdict. assessing whether, appellant’s punish- 606(b) provides: The first half of Rule imprisonment, they ment considered at life (b) Inquiry validity of in- into verdict or the now declared unconstitutional Upon inquiry dictment. into the valid- 606(b), law Rule as it should instruction. indictment, ity [grand of a verdict or read, legal certainly impediment be no petit] or juror juror may testify as goes asking question jurors any occurring matter or statement dur- validity punishment, of their verdict on ing jury’s the course of the deliberations punish- validity of their verdict on jury’s to the indictment or the verdict [as certainly in this cause. ment most raised guilt punishment] or or to the effect druthers, Therefore, my I had I would if anything upon any juror’s his or other appeals mind or him to remand cause to the court of influencing emotions as to or assent dissent from verdict or could so this cause be abated concerning pro- indictment or his mental judge could trial court so that cesses in therewith. hearing connection type error” conduct a “harmless effect, any, if law instruc- what Rule, however, pro- The second half of the might jurors had on the when have following: vides the punish- they appellant’s voted to assess [E]xcept may juror testify that a as to course, at imprisonment. Of ment at life any validity matter relevant to the of the the bur- hearing State would have or verdict indictment. establish, could, if it that none den to above, Given the the last sentence of the in- jurors considered the Rule, may or “Nor his affidavit evidence appel- they voted to assess struction when concerning statement him matter i.e., punishment imprisonment, at life lant’s precluded which he about would instruction made no contribution purposes”, testifying be received for these Also that was assessed. closely me appears rememble what burden hearing, be the State’s it would “dangling partici- would characterize as a testify at jurors to summon all deciding ple impor- what sentence”. who why those hearing, or show cause might have, last when tance the sentence so dis- either were dead were absent "x’s out” one the first half Rule with hear- Rule, will, they could not attend I abled that the second half of the of move course, ing not be feasible to persons to would defer to those who like and it they totally analysis, are the courtroom to where make harm that this should not incapacitated. It be would further incum- that be taken to mean this Court will at all upon hearing the State at the to estab- bent times like in the future continue to refuse through jurors lish those who were to able discretionary There- petitions for review. testify that law instruction was fore, strongly suggest I members or by any jurors considered used not appeals any that time the courts of appellant’s pun- in their decision to assess court issue is presented members i.e., imprisonment, life ishment at it made error appeals make a careful harmless punishment no contribution that was analysis. or will Whether error will assessed. course, will, harmful constitute error majority here, dependent upon peculiar

Because of this as Court unwilling only persons to have the who The facts the case. facts here that went answer, cause, jurors in know the punishment any easily would warrant relegated I respond, my am thus ever rational appellant’s trier of fact to assess crystal present court made ball make the punishment imprisonment. far at life As determination whether the error goes, I as harmless error that have viewed to appellant. harmful harmless was standpoint issue from the of the facts that Therefore, my viewing through the matter imprison- assessment of life went ball, my crystal and in the abstract from the courts ment. I caution members of Appeals, perch on the Court of Criminal deciding appeals: it comes to When cause, I light unequivo- of the facts harmless, not all whether the error was cally state that there is not a reasonable nicely going cases facts of fit the possibility any that rational would this case. have returned other verdict that the Therefore, dis- respectfully I concur and one that the in this cause did: life sent. imprisonment. opinion I conclude this with a note of DUNCAN, Judge, concurring on this Court alarm. members of are now rehearing. for Court’s motion witnessing petitions some appellant’s discretionary that assert like review that only that original joined On submission I charge error as harmful here was de- portion Judge opinion Clinton’s appellant, that such made some contri- mandated clared instruction bution to the as- was V.A.C.C.P., 4(a) Art. unconstitu- § sessed, opinions with some of the courts of course of it violated the due tional because merely appeals blowing appellants off I provision of the Texas Constitution. making any analysis, kind of harm without since also concluded that submission merely citing original opinion of of a defend- was violative origi- this Court that handed down on course it necessar- right to due of law ant’s authority. nal submission as its Sad envi- analysis harm as ily that a followed merely refusing Court those say, this sioned Almanza This, discretionary petitions for review. inappropriate. (Tex.Cr.App.1985) was however, is not all of the courts of true of position my I adhere continue to appeals that have been confronted with State, id., I inapplicable, but Almanza v. many our error because harmless issue Judge position agree Campbell’s do appeals harm- have done correct courts by Rule analysis required that a harm overruling analysis the assert- less error 81(b)(2) applicable. Tex.R.App.Proc. is Hopefully, to- charge error ed contention. Judge agree with Clinton’s I now also change what day’s opinion will 37.07, 4(a), V.A.C. Art. observations cases. I cau- occurring in some has been in- C.P., legislative is an unconstitutional of appeals court the members of the doc- upon trusion merely this Court has because Therefore, join completely trine. petitions discretionary re- past refused Campbell. Judge view, appeals did not where court of Nevertheless, necessary majority, requirement it is is party feel that a make these additional comments concern- standing have to raise an issue before an ing legislative activity that resulted appellate challenging court. When the con 37.07, 4(a), supra. Art. It is no secret § statute, stitutionality of a it is incumbent 37.07, pac- supra that Art. was enacted to upon party raising the issue to show ify perceived public a concern that defend- operation, its is statute unconsti being prematurely ants were released situation; tutional as to him in his that it is prison. Whether that is a valid thesis may conceivably applied unconstitution relevant, however, is irrelevant. What is ally to others is not sufficient. Parent way respond a that there was viable (Tex.Cr.App. arguable public’s concern. 1981),and cases cited therein. To establish Assuming and that the concern was real standing, party must show that he is Legislature necessary, action injured, rights abrogated or that his doing there was a means of so without application alleged unconstitu imposing upon judicial the executive Ullman, tional statute. Tileston v. government. Very sim- of Texas branches (1943). 87 L.Ed. 603 U.S. S.Ct. ply, rely upon speculation rather than Thus, if supra, encourages, Meshell v. that Art.

Legislature prisoners are concluded that (Tex.Cr.App.1987), any before discussion being early they have to do released too all separation powers, was had as pa- is alter the standards under which properly determined the threshold Court Leg- Why the role laws are administered. County attorney’s of the Freestone issue proceed faulty islature elected to standing complain. There we wrote: 37.07, supra, in Art. manner that resulted “... We must determine whether first opposed confronting matter in a as County attorney is entitled the Freestone way readily is not direct and constitutional II, 1, supra. protection Article under § apparent. attorney, county “The office of to declare properly Courts are hesitant criminal district attor- well as district and legislative But actions unconstitutional. V, 21, of ney, in Article is established § legislative in manner body acts when the Texas Constitution.... unaccountably usurps authority county at- “By establishing the office responsibility of another branch V, the authors government duty torney of this under Article right it is the unconstitu- placed Court to declare such actions those offi- the Texas Constitution tional. Art. unconstitutional necessary as well. 37.07, supra legislative was not effort, only but un- cers within the it * * “The Freestone ^[*] Judicial County Attorney, hav- department.... right granted the exclusive ing been MILLER, J., joins. rep- department ‘to the Judicial within McCORMICK, dissenting, Judge, in the Dis- in all cases the State resent rehearing. motion for Court’s to be inferior courts’ is entitled trict ignored by have been Two basic issues powers separation by the protected foremost, first, appel- is this Court: II, in Article su- contained doctrine standing lant’s to raise claims of Meshell, 739 S.W.2d at pra....” violations; and second added). emphasis (footnotes omitted and right finding appellant’s Court’s branch a member Appellant is not abrogated yet has due course of law been is not a member government abrogation “harmless.” finding such power Paroles whose Pardons and Board of 37.07,Sec- usurped by SEPARATION supposedly STANDING TO RAISE vicarously VIOLATION Appellant OF POWERS 4, V.A.C.C.P. powers violation asserting separation of fundamental tenets of One of the most guidelines of to established law, apparently overlooked contradiction appellate entire majority’s finding majority opinion, finding constitutional The The both a law. de- separation a violation and a due powers violation inextricably violation, course of law is untenable. fendant hinged upon the jury’s consideration of the parole good possibilities. conduct time “HARMLESS” OF DUE COURSE Judge Campbell’s opinion on the motion for LAW VIOLATION however, rehearing, jury finds that the was majority The has found a “harmless” due and, told not to consider parole course of This Court has law violation. presumes remarkably, they the Court previously determined that: obeyed this instruction and thus the error process essentially is in itself “[D]ue essence, majority harmless. was very as fairness. Or at the the same opinion finds in the same that the statute least, process is the used to due vehicle jury due course of law because the violates thereby protecting our arrive at fairness considered parole yet laws such rights. Accordingly, ‘a fair fundamental did not consid- harmless because require a fair tribunal a basic er laws. Murchison, In re process.’ ment of due It is to these inconsistencies that must 99 L.Ed. 942 349 U.S. S.Ct. dissent. Long (1955).” — denied, cert. (Tex.Cr.App.1987), WHITE, J., joins in dissent. U.S. -, 108 S.Ct. 99 L.Ed.2d (1988). 43 Crim.L.Rev. 4001

Thus, finding if there is a of a due course (and consequently finding of law violation fundamentally that the defendant’s trial is unfair) susceptible how can such ever be analysis?

a harmless error An unfair trial trial, long majority is an unfair as as the persists finding a “harmless” unfair tri-

al, by necessary implication majority has found no due course of law violation. McQueen parte BYRD. Ex James majority’s finding due harmless No. 70012. course law violation has led to an incon- opinion: only sistent One need examine the Texas, Appeals Court Criminal opinion compare in this case and En Banc. on its own motion for rehear- May ing. Clinton, Judge writing majority opin- submission, original

ion on stated: paragraph the fifth ... “[I]n may consider is instructed: ‘You good law and existence say, when it conduct time.’ That comes to assess may deliberate on the content of what preceding four been stated in the

has [outlining paragraphs making good conduct time laws] years it as to the number of will decision Majority opinion punishment.” assess omitted; (footnote emphasis p. 535 original). notes Par- in brackets add- through ture must act the Board of ed) Paroles, legislature is dons and which the (via left free to control the enactment of B. Due Course Law statutes) through of this con- its exercise authority. stitutional majority The also concludes that Article 37.07, 4(a) Sec. violates the due course of IV, “The 11 is re- fact that Art. Sec. I, provisions law of Art. Secs. 13 19 in portion tained in that of the constitution right that it denies an accused of his to a depart- which described the executive impartial fair and trial the on issue of simply ment an historical accident punishment. This conclusion rests on the stemming form the fact that the under premise impose the language IV, adopted of Art. Sec. risk that will be based “[t]he parole power, along the all with on extraneous considerations ...” because aspects pardoning other of the or clemen- jurors temptation “often cannot resist the cy power placed was in the hands of the parole words, to discuss laws.” In other governor. Clearly, power of clemen- majority presumes that a will dis- cy, traditionally by king while held regard they their instructions that “are not other head of state Commentary to {see good to consider extent to con- which IV, 11) Art. lodged Sec. can be in which- may duct time be awarded to or forfeited government ever branch of people defendant,” particular and “are not Miers, parte desire. Ex 124 Tex.Crim. to consider the manner in which (1934 [1933]). may applied particular be to this de- IV, 1983 amendment to Art. Sec. re- fendant.” moving governor’s power to revoke paroles, step final in the trans- (Tex. Keady 687 S.W.2d 757 parole power component mission of the Cr.App.1985), today’s majori the author of clemency power gover- dissent, writing sug ty opinion, while legislature. nor to the explain gested pattern jury jurors why parole should not be matters “That the Constitution mandates that considered: legislature delegate must the admin- you istration of the that the function to a board “Further are instructed Paroles, implies grant parole, of Pardons ad if and way in no determination to made, govern- many that the executive branch of the when rests facts known, authority simple ment retains events not now for the constitutional Likewise, parole process. they yet over the at reason that have not occurred legislature predict- fact that the cannot has elected to time of trial. Since it be delegate governor power to the or even ed at this time when whether appoint granted, you members are not to of the Board Par- will be Paroles, mention, to, dons and discuss or consider way no diminishes refer might regard long its defendant be re- authority constitutional how parole power. generally, quired to remain confined to serve the See Ex disposed merely citing punishment you quickly assess and sentence Cali- Ramos, impose. will Such matters court 463 U.S. 103 S.Ct. fornia jurisdiction (1983). come the exclusive There, within 77 L.Ed.2d 1171 in the be exercised at some time future process argument same due made Paroles, the Board Pardons rejected by Supreme case was instant governor of and to some extent pro- Court as not violative of federal due they beyond prov- are cess. and, ince of courts therefore (Clinton, Keady, as well.” J., dissenting). II. dissenting opinion, And in the same Clearly, errs on both bases Judge Clinton states: 4(b) upon today Art. Sec. accept jurors are reason- unconstitutional, “Let us ex- declared no error persons able and sensible who can giving if it is ists in the instruction. Even follow oath and instruc- trusted to their error, Judge I concur with Onion that Al- they tions when from the court applied is no should be and there manza they the reason made to understand egregious harm in this case. Keady, su- parole.” are not to discuss reasons, I dissent. For all above original). pra, (Emphasis in at 762.

Case Details

Case Name: Rose v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 15, 1988

Citation: 752 S.W.2d 529

Docket Number: 193-87

Court Abbreviation: Tex. Crim. App.