# Purcella v. State

> Court of Appeals of Texas · December 7, 1988 · 762 S.W.2d 696

URL: https://www.frixlaw.com/law-library/cases/5073319

## Case

- **Full name:** Wayne Martin PURCELLA v. The STATE of Texas
- **Court:** Court of Appeals of Texas
- **Decided:** December 7, 1988
- **Citations:** 762 S.W.2d 696; 1988 Tex. App. LEXIS 3360; 1988 WL 144505
- **Precedential status:** Published
- **Opinion:** Dissent by Esquivel
- **Judges:** Chapa, Esquivel
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5073319

## Opinion text

ESQUIVEL, Justice,
dissenting.
I respectfully dissent to the disposition of appellant’s point of error concerning the parole law charge.
The issue is whether this Court determines beyond a reasonable doubt that the erroneously given parole law instruction made no contribution to the punishment. Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988); TEX.R.APP.P. 81(b)(2).
The trial court did not give a curative instruction to totally disregard parole, found to be “particularly significant” in Rose. Id. at 554 ; see Olivarez v. State, 756 S.W.2d 113, 115 (Tex.App. — San Antonio 1988, no pet.); Garay v. State, 755 S.W.2d 956 (Tex.App. — San Antonio 1988, no pet.).
Based on the presumption that the jury considered the existence of parole and good conduct time as explained to them in the first four paragraphs of the pertinent instruction (see Olivarez, supra at 114-115 ) and assessment of punishment at ten years and one day more than the minimum authorized by law (see Olivarez, supra at 115-116 ; Garay), I cannot determine beyond a reasonable doubt that the error made no contribution to the punishment, regardless of how serious the offense may have been {see Olivarez, supra at 115 ; Garay) or appellant’s past violent action (see Olivarez, supra at 115 ).
I would sustain the point of error and reverse and remand.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5073319. Public record. Not legal advice.