Buentello v. State

CLINTON, Judge,

concurring.

The perplexing matter of jurors considering parole law again confronts the Court. While I join its opinion and judgment, this seems an appropriate occasion to broach the notion of another way out of the maze.

Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), was decided under former article 40.03, §§ 7 and 8 in May 1984. Article 37.07, § 4, Y.A.C.C.P. (hereafter § 4), mandating a parole law instruction, became effective September 1, 1985. Texas Rules of Criminal Evidence were adopted and promulgated December 18, 1985, and Texas Rules of Appellate Procedure were adopted and promulgated April 10,1986, both effective September 1, 1986. Moreover, after Rose v. State, 752 S.W.2d 529 (Tex.Cr.App. 1987), determined that a parole law instruction pursuant to § 4 was violative of the “Separation of Powers” doctrine and of “Due Course Clause” under the Constitution of the Texas, the Legislature proposed and the voters adopted an amendment to Article IV, § 11, granting the Legislature authority “to enact parole laws and laws that permit courts to inform juries about the effect of good conduct time and eligibility for parole ... on the period of incarceration served by a defendant convicted of a criminal offense.” Accordingly, an amended version of § 4 became effective, but which for our purposes here made no material change in substance of former § 4.

That sequence of events as it pertains to juries receiving “other evidence” and engaging in “misconduct” would seem to have some bearing on the issue in this cause. Germane at least is whether subsequent relevant legislative and judicial provisions have any impact on the five-prong test of Sneed v. State, supra. To that inquiry I now turn.

That consideration by the jury of parole in assessing punishment is “an evil to be avoided” is court-made law. See Rose v. State, supra, at 535; Clark v. State, 643 S.W.2d 723, 724-725 (Tex.Cr.App.1982), and cases cited therein. And, as a comparison of Heredia v. State, 528 S.W.2d 847, at 850-853 (Tex.Cr.App.1975) and Sneed v. State, supra, clearly demonstrates, the Court has vacillated considerably in applying its own law. Whether dissatisfied with the judicially promulgated proposition, or informed by a suggestion to improve its implementation made in Keady v. State, *617 687 S.W.2d 757 (Tex.Cr.App.1985) (dissenting opinion, at 761-762), as some have divined, see Rose v. State, supra at 551-552 (McCormick, J., dissenting), the Legislature took matters into its own hands and reenacted § 4 (with modifications not relevant here).

In Rose v. State, supra, the Court analyzed § 4 and construed the first part of its fifth paragraph to instruct the jury as to what it is permitted to consider, viz:

“At this point, however, ... the jury is instructed: ‘You may consider the existence of the parole law and good conduct time.’ That is to say, when it comes to assess punishment the jury may deliberate on the content of what has been stated in the preceding four paragraphs in making a decision as to the number of years it will assess as punishment, [note omitted].” (emphasis in original).

Id., at 534-535. See Arnold v. State, 786 S.W.2d 295, 299 (Tex.Cr.App.1990), confirming our Rose analysis, and also agreeing with a court of appeals that § 4 “encourages a jury to consider existence of parole law and good conduct time.”

It may be fairly asked whether the “evil” this Court denounced and sought to regulate was, ironically enough, controverted into public policy when voters approved a constitutional amendment authorizing the Legislature to enact just such “evil” into law, and the Legislature so provided in terms identical to those we construed in Rose .

Manifestly the constitutionally authorized and legislatively enacted § 4 instruction supersedes the judicially constructed admonishment regarding parole, viz:

“You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern- of yours.”

Rose, supra, at 554 . It is now permissible to “consider” existence of the parole and good conduct time, that is, “to apply one’s mind to something [the parole law] in order to increase one’s knowledge or understanding of it or to reach a decision about it” and when functioning in a formal body to “consider and deliberate with a view to action.” Rose, supra, at 535, n. 7 . However, the instruction goes on to forbid jurors “to consider the extent to which good conduct time may be awarded” and “to consider the manner in which the parole law may be applied to this particular defendant.” Thus, the argument is, essentially, that as a matter of legislatively declared public policy it is misconduct for a jury to do either, irrespective of the former Sneed requisites, i.e., that some juror professed to know the law and asserted as fact some misstatement of the law. Sneed, at 266. Ergo, because the latter prohibitions reflect stated public policy, they must be applicable in every case regardless of whether a § 4 instruction is actually given the jury.

Taking that way out means the bench and bar could avoid the Sneed maze in the future.