Andrade v. State

TEAGUE, Judge,

CONCURRING.

I write only to address appellant’s first ground of error, which asserts: “The trial court erred in refusing to instruct the jury on the parole laws of the State of Texas during the punishment phase of the trial and in doing so denied Appellant his rights of due process under the Fourteenth Amendment to the United States Constitution and Article 1, Section 19 of the Texas Constitution, and caused the imposition of the death penalty herein to violate his rights to be free of cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Article 1, Section 13 of the Texas Constitution.”

In his argument under this ground of error, appellant claims that the trial court’s failure to instruct the jury on the law of *590 parole for a life sentence caused the imposition of the death penalty to violate the Eighth and Fourteenth Amendments to the United States Constitution. He also argues that the trial court’s action in keeping this information from the jury deprived the jury of all the possibilities it might have considered.

Appellant’s contention has always been rejected by this Court. The majority correctly holds his contention is without merit. Also see O’Bryan v. State, 591 S.W.2d 464, 478 (Tex.Cr.App.1979).

Had Texas statutory law provided for such an instruction, neither the Eighth nor the Fourteenth Amendments to the Federal Constitution would prohibit such an instruction. See California v. Davis, 463 U.S. 992 , 103 S.Ct. 3446 , 77 L.Ed.2d 1171 (1983), in which the Supreme Court upheld a California statute on Federal Constitutional grounds. The statute required the trial judge to instruct the jury in the following language:

You are instructed that under the State Constitution a Governor is empowered to grant a reprieve, pardon, or commutation of a sentence following conviction of a crime. Under this power a Governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole.

For the reasons expressed by Justice Marshall in the dissenting opinion that he filed in California v. Ramos, supra, if Texas statutory law required such an instruction, I would vote to declare it unconstitutional under the Texas Constitution because such an instruction invites the jury to consider factors that are foreign to its task of deciding what answers the questions that are submitted to it pursuant to Art. 37.071, V.A.C.C.P., call for. In fact, advising juro, "s that a life penalty is theoretically modifiable, and thus not “final,” might incline them to approach their fact finding duty with less appreciation for the gravity of the answers to the submitted questions and for the moral responsibility reposed in them as fact finders. In short, such an instruction disclosing the Governor’s power to commute a life sentence might operate to a defendant’s severe disadvantage and to his extreme prejudice. E.g., People v. Morse, 60 Cal.2d 631 , 36 Cal.Rptr. 201 , 388 P.2d 33 (Cal.Sup.Ct.1964).

Therefore, I believe that had the trial court granted appellant’s requested instruction it would have tended to reduce the jury’s sense of responsibility in answering the submitted questions.

Furthermore, but as pointed out by Justice Marshall in the dissenting opinion that he filed in California v. Ramos, supra, such an instruction might have misled the jury about the scope of either the Parole Board’s powers or the scope of the Governor’s clemency power, and could have very well led the jury into believing that it could have eliminated any possibility of commutation by answering in the affirmative all of the questions submitted to it. Such an instruction also would have invited speculation; speculation about the possibility of release. It also would have invited the jury to predict the actions of the present or some future Parole Board or Governor of this State. It is or should now be axiomatic that individual jury predictions on the possibility of parole represent nothing more than “sheer speculation.” A jury simply has no basis for assessing the likelihood that a particular defendant will eventually be released on parole if he is not sentenced to death. To invite any jury to indulge in such speculation is to ask it to foretell numerous imponderables, in particular, the policies that may be adopted by the present and unnamed future governors and parole officials. Lastly, such an instruction would inject into the capital sentencing process a factor that bears no relationship to the nature of the offense or the character of the offender.

In conclusion, but as Justice Marshall also pointed out in the dissenting opinion that he filed in California v. Ramos, supra: “The conclusion that juries should not be permitted to consider commutation and parole in deciding the appropriate sentence *591 is shared by nearly every jurisdiction which has considered the question... Whatever interest a State may have in imposing the death penalty, there is no justification for a misleading instruction obviously calculated to increase the likelihood of a death sentence by inviting the jury to speculate about the possibility that the defendant will eventually be released if he [in this instance, is given a life sentence] and not executed.”

The majority correctly overrules appellant’s first ground of error.

Because it did not become effective until September 1, 1985, it is not necessary to discuss at this time what application, if any, Senate Bill 37, see 69th Leg., 1985 Tex.Sess. Law Serv. 4446 (Vernon), which will provide statutory instructions to the jury on parole and good time laws, might have on appellant’s contention.

With these additional remarks, I agree with what the majority opinion has stated and held in disposing of appellant’s other contentions.