holding that a jury’s discussion of parole law in a murder trial constitutes reversible error only if it is shown that there was a misstatement of the law asserted as a fact by one profess ing to know the law that was relied upon by other jurors who for that reason changed their vote to a harsher penalty
How later courts described this case
- holding that a jury’s discussion of parole law in a murder trial constitutes reversible error only if it is shown that there was a misstatement of the law asserted as a fact by one profess ing to know the law that was relied upon by other jurors who for that reason changed their vote to a harsher penalty
- for jury discussion of parole to be reversible error, appellant must show there was (1) misstatement of law; (2) asserted as fact, (3) by one professing to know the law; (4) relied upon by other jurors, and (5) who for that reason changed their vote to a harsher punishment
- issues of fact as to jury misconduct raised at a hearing on a motion for new trial are for the determination of the trial judge
- "[I]t is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole...."
Written by the judges who cited it.
Later courts went against this
Abrogated — as noted by a later court
As a result, by amending this rule, Buentello and Sneed are abrogated.
by statutemedium confidence
Distinguished
Distinguished by Austin v. State, 748 S.W.2d 546 (1988)
We believe Sneed, by its very nature, is inapplicable to this case, for under the Sneed test, a jury’s
The opinion
CLINTON, Judge,
dissenting.
Once jurors were selected, the judge of the trial court administered the oath statutorily prescribed by Article 35.22, V.A.C. C.P.
“You and each of you do solemnly swear that in the case of the State of Texas against the defendant, you will a true verdict render according to the law and the evidence, so help you God.” 1
One matter of law on which the trial court instructed the jury at the punishment phase was plainly stated, viz:
“You are instructed that you will not consider the amount of time the defendant will have to serve under any sentence you may assess, because such matters come within the exclusive jurisdiction of the Governor acting through the office of the Board of Pardons and Paroles.”
Thus, each juror was given to understand that the length of time to serve whatever punishment the jury chose to assess was not a matter to be considered in the jury room. Obviously, several jurors violated their sworn duty to follow the law. Now, *270 however, a majority of the Court is about to exonerate them. I respectfully dissent.
The so-called “five-prong test” for which the majority opts was “stated and discussed, but rejected” by the Court in Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975). Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1979) (Dally, J., dissenting, joined by Onion, P.J., Douglas and W.C. Davis, JJ.). In Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982) the Court again refused to adopt “the five-prong test of Heredia” — over the protestations of Judge Dally, joined by Onion, P.J., W.C. Davis and McCormick, JJ. Munroe v. State, supra, at 485-486.
At risk here is a sound fundamental doctrine of government forever insisted on by our forebearers and framers of our constitutions, beginning with the Republic of Texas in 1845 — separation of powers among three distinct departments. Constitution of the Republic of Texas, Article I, Section 1, 3 Vernon’s Texas Constitution 523; Constitution of the State of Texas (1876), Article II, Section 1, 1 Vernon’s Texas Constitution 521-522; Munroe v. State, supra, at 477; Sanders v. State, supra, at 351-352; Heredia v. State, supra, at 853, n. 4. Under Article IV, Section 11, “[t]he decision to parole, if and when made, is beyond the province of the courts ... and therefore of the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulation by the legislative branch,” Here-dia, supra. The instruction to the jury in that regard given by the trial court in the case at bar is impeccably designed to prevent mischief by aggressive jurors, and to keep from harm’s way the doctrine of separation of powers.
After reviewing the facts of the matter the Amarillo Court of Appeals found that
“it affirmatively appears from the record that the parole law was discussed extensively without constraint, and that at least three jurors increased appellant’s punishment because of the discussion. The uncontradicted affirmation is that appellant’s punishment was increased in expectation that clemency powers would be exercised.”
Sneed v. State, 625 S.W.2d 761, 763 (Tex.App.—Amarillo 1981). Accordingly, applying principles enunciated by the Court in, e.g., Heredia and Sanders , the court of appeals concluded that jury discussion of the parole law was detrimental to appellant and did constitute such misconduct as to deprive him of a fair and impartial trial in violation of Article 40.03(8), V.A.C.C.P. Reversing the judgment of conviction on that account, the Amarillo Court did not reach the issue raised under Article 40.-03(7).
Today, a majority of this Court is able to reverse the court of appeals only by retro-gressively changing the rules extant at time of trial and direct appeal. In the doing it diminishes the right to a fair and impartial trial with assessment of punishment by jurors adhering to the solemn oath taken by each to render a true verdict according to law.
I must dissent.
TEAGUE and MILLER, JJ., join.
. All emphasis is added throughout by the writer of this opinion unless otherwise indicated.