# Rose v. State > Court of Criminal Appeals of Texas · June 15, 1988 · 752 S.W.2d 529 URL: https://www.frixlaw.com/law-library/cases/9778053 ## Case - **Full name:** Vernon Lee ROSE, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 15, 1988 - **Citations:** 752 S.W.2d 529; 1988 Tex. Crim. App. LEXIS 117; 1987 WL 1386 - **Precedential status:** Published - **Opinion:** Concurrence by Miller - **Judges:** Onion, Teague, McCormick, Clinton, Duncan, Campbell, Davis, White, Miller - **Cited by:** 510 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Karenev v. State, 2009 Tex. Crim. App. LEXIS 961 (2009). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9778053 ## How later opinions describe it (automated extraction) - holding that Tex. Code Crim.P. Ann. art. 37.07, sec. 4(a) (Vernon Supp.1988) (“the parole statute”), requiring that the trial court instruct the jury on the Texas parole laws, is unconstitutional - holding that Tex.Code Crim.P. Ann. art. 37.07, sec. 4(a) (Vernon Supp.1988) ("the parole statute"), requiring that the trial court instruct the jury on the Texas parole laws, is unconstitutional - holding that predecessor statute violated separation of powers and due course of law ## Opinion text MILLER, Judge, concurring on appellant’s petition for discretionary review To appreciate the problem of the parole charge, we must start with a common premise. That premise is that it is improper for a jury to give a greater sentence than they believe is merited for the sole purpose of having the defendant serve all of the sentence they do believe is merited. That is, a jury believing that a sentence of ten years is the proper punishment in a given case, should not give a defendant twenty years so that he will not be paroled until he actually serves the ten. As far as I can tell, all members of the Court agree to this premise. Obviously this Court starts to part ways once we leave the above premise and venture into the parole charge mandated by Art. 37.07, § 4, V.A.C.C.P. Some members *538 of this Court find no constitutional problem with the article or the giving of the charge. See Judge McCormick's dissent. Others find both a separation of powers and a due course of law infringement. A majority at least agrees that the article violates the separation of powers doctrine of the Texas Constitution. I agree that Article 37.07, § 4(a), supra, violates Art. II, Sec. 1 of the Texas Constitution (separation of powers). I write having the benefit of the comments in Judge McCormick’s dissenting opinion. For reasons that escape me, neither the majority opinion nor the dissent mentions what must be the most important separation of powers opinion in recent times, Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987, motion for rehearing overruled November 4, 1987). Much of what was written in Meshell, supra, answers the acerbic comments of the dissent on this ground. 1 The very reasoning that led to a finding of a legislative encroachment into an area of power exclusively reserved for the prosecuting attorney in the judicial department, that of discretion in preparing for trial, bolsters the majority’s reasoned view that the legislature has here encroached, via a directive to the judiciary, upon an area of power exclusively reserved for the Board of Pardons in the executive department. My concern goes to the treatment of the harm resulting from the jury instruction mandated by this unconstitutional statute. In the two short years since the advent of the understanding of error in jury instructions elucidated in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (opinion on rehearing), over three hundred reported cases have used the two-tiered analysis in jury charge error. Once the giving of a portion of the trial court’s jury charge is determined to be error, we must apply an Almanza analysis. That analysis results in finding either that the giving of an unob-jected-to charge amounted to egregious error which deprived the defendant of a fair and impartial trial, or that the giving of an objected-to charge amounted to harm that injured the rights of the defendant. In this case there was no objection to the giving of the charge in question. In addressing such a situation, we stated in Almanza, supra: “We hold that finding error in the court’s charge to the jury begins — not ends — the inquiry; the next step is to make an evidentiary review ... which may illuminate the actual, not just theoretical, harm to the accused.” Almanza, supra, at 174 . Here, a majority of the Court has decided that the giving of the charge is the error that resulted from the dictates of a statute violating the separation of powers doctrine. That the pronounced error here is in the charge to the jury is beyond refute. Thus I would proceed with the harm analysis described in Almanza, supra. The first post-Almanza case from this Court to find unobjected-to reversible error in a court’s charge on punishment was Ellis v. State, 723 S.W.2d 671 (Tex.Cr.App.1986). Upon viewing the error in light of the entire record, we analyzed the charge in view of the evidence admitted, the jury arguments, the length of the jury’s sentence, and concluded that the defendant was denied a fair trial. A similar approach may be taken in the instant case. According to the Court of Appeals’ opinion, the facts of the case are as follow: “... on the afternoon of October 17, 1984, appellant and two other men entered complainant’s textile company in Dallas, robbed him at gunpoint, and left *539 him tied up on the floor. Appellant took complainant’s pistol and approximately $160 in cash. Shortly before noon, eight days later, Officer Reno was at an apartment complex in Ennis when he saw a goldish-yellow Pontiac Sunbird that the police were seeking. He observed appellant and his companion, George Fitch, Jr., get out of the car and walk toward the apartments. He approached the two men and asked them to show their identification. As Reno began his questioning, Officer Shoquist arrived and discovered that appellant had a concealed handgun later identified as the pistol stolen in the Dallas robbery. Reno then drew his revolver on Fitch, removed a pistol Fitch was carrying in the waistband of his trousers, and placed Fitch on the ground without handcuffs. Reno then turned to aid Shoquist who was struggling with appellant for the latter’s pistol. As appellant and the two officers struggled, Reno lost possession of Fitch’s pistol, and Fitch recovered it. Fitch shot and wounded Reno. During the ensuing confusion, appellant escaped in a squad car; he was caught after a high speed chase, which ended when appellant crashed into a concrete median marker.” Rose v. State, 724 S.W.2d 832, 833-4 (Tex.App.—Dallas 1987). During the penalty stage of trial, the State established that the 39-year-old appellant had been to penal institutions three times and had five prior felony convictions. During final argument, while both prosecutors mentioned that appellant was back in Dallas twelve years after receiving a twenty-five year sentence (as reflected by the admitted evidence of prior convictions), neither gave further attention to that fact nor mentioned parole at all in their arguments. Both asked for a life sentence because of the facts of the case and appellant’s five prior felony convictions. Based on this examination of the record, I am totally unable to say that the giving of this unobjected-to charge amounted to egregious error that deprived appellant of a fair and impartial trial. Thus reversible error is not presented. Moreover, even if this harm analysis did not reach the above result, the following charge, further mitigating harm, was given to the jury after the parole law charge in question: “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.” No reversible error is presented. CAMPBELL, J. joins. . Referring to dissenter’s comments such as “The fact that opinions may differ as to the constitutionality of a statute should not be a sufficient basis to strike down the legislation. Instead, it should militate in favor of constitutionality unless it is so apparent that reasonable minds could not differ.” (Dissenting opinion p. 543) (Meshell, supra, being a hotly contested 5-4 decision); and “The majority implies that since the constitutional authority for the Board of Pardons and Paroles remains in Art. IV, TEX. CONST., the agency is therefore an executive agency." (Dissenting opinion, p. 544) (Meshell, supra, stating that by establishing the office of county attorney under Article V, the authors of the Texas Constitution placed those officers within the judicial branch of government). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778053. Public record. Not legal advice.