Rose v. State

ONION, Presiding Judge,

concurring in part and dissenting in part on appellant’s petition for discretionary review.

Appellant was convicted of aggravated robbery and his punishment was assessed by the jury at life imprisonment.

Appellant complained on appeal, inter alia, that charging the jury on the law of parole pursuant to Article 37.07, § 4(a), V.A.C.C.P., violated the separation of powers doctrine and due process clauses of the federal and state constitutions. The Dallas Court of Appeals rejected such contentions and affirmed the conviction. Rose v. State, 724 S.W.2d 832 (Tex.App.-Dallas 1986). We granted the appellant’s petition for discretionary review to determine the correctness of the decision of the Court of Appeals.

In view of appellant’s challenge to the constitutionality of Article 37.07, § 4(a), supra, the statute is vested with a presumption of validity and this Court is duty bound to construe such statute in such a way as to uphold its constitutionality if possible. See Ely v. State, 582 S.W.2d 416, 419 (Tex.Cr.App.1979); Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978); V.T. C.A., Government Code, § 311.021. See also Faulk v. State, 608 S.W.2d 625, 630 (Tex.Cr.App.1980). Courts should not declare an act unconstitutional unless it is clearly made to appear in its enactment that the Legislature has exceeded its pow *540 ers. Lyle v. State, 80 Tex.Cr.R. 606 , 193 S.W. 680 (1917). And courts should not assume the Legislature would intend an unreasonable result if the statute is capable of a construction that would prevent such a result. Wade v. State, 572 S.W.2d 533, 535 (Tex.Cr.App.1978). Before a statute is set aside, its validity must clearly be unsupported by a reasonable intendment or allowable presumption. Ex parte Groves, 571 S.W.2d 888 (Tex.Cr.App.1978); Parr v. State, 575 S.W.2d 522 (Tex.Cr.App.1978).

With these principles as a background, I fully agree that Article 37.07, § 4(a), supra, is unconstitutional on the bases set forth in the majority opinion. Here the trial judge following the mandatory language of the statute, now declared unconstitutional, gave the jury instruction now in question. The error was error in the court’s charge although there was no objection to the court’s charge on this basis. The error then must be analyzed in light of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), where it was stated at p. 171:

“After researching Texas statutory and decisional law from 1857 forward, we have concluded that Article 36.19 actually separately contains the standards for both fundamental error and ordinary reversible error. If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is ‘calculated to injure the rights of defendant,’ which means no more than that there must be some harm to the accused from the error. In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.

“On the other hand, if no proper objection was made at trial and the accused must claim that the error was ‘fundamental,’ he will obtain a reversal only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’

“In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” (Emphasis supplied.)

Since there was no objection to the charge, reversal is proper only if the fundamental error is so egregious and creates such harm that the appellant “has not had a fair and impartial trial.” In applying the Almanza analysis each case must stand on its own merits.

The error is in the court’s charge at the penalty stage of the trial only. The sufficiency of the evidence to sustain the aggravated robbery conviction is not disputed. Appellant and two companions entered the textile company of the victim, robbed him at gunpoint and left him tied up on the floor after threatening to kill him. Approximately $160 in cash and the victim’s pistol were taken. Eight days later Lt. Dennis Reno of the Ennis Police observed a goldish yellow Pontiac Sunbird the police were seeking at the Erwin Villa apartment complex. As appellant and his companion, Fitch, got out of said automobile, Officer Reno approached and asked for identification. While Reno was questioning the men, Officer Bob Shoquist arrived and discovered that appellant had a concealed handgun on his person (later identified as the pistol taken in the robbery). Reno then drew his service revolver on Fitch and removed a pistol Fitch was carrying and placed Fitch on the ground without handcuffs. At this time Reno responded to Shoquist’s request for help as Shoquist was struggling with appellant over the pistol. Both officers struggled with the appellant and in the struggle Reno lost possesion of the pistol he had taken from Fitch. The appellant yelled, “Shoot him, shoot him,” and Fitch shot Reno in the neck. During the confusion that followed, appellant escaped in a police squad car and was apprehended only after a high speed chase which terminated when the appellant crashed the squad car into a concrete median marker.

At the penalty stage of the trial the State waived the enhancement paragraphs of the *541 indictment alleging a prior robbery conviction and a prior burglary conviction for the purpose of enhancement of punishment. See V.T.C.A., Penal Code, § 12.42. However, the State introduced under Article 37.07, V.A.C.C.P., as part of appellant’s “prior criminal record” five prior felony convictions. This evidence reflected that 39-year-old appellant had been to penal institutions on three occasions. The record reflects a federal conviction for “breaking a seal fixed to interstate shipping in violation of 18 U.S.C., Sec. 2117 ,” a forgery conviction, a burglary conviction and two robbery convictions. These convictions were undisputed.

Examining the charge at the penalty stage of the trial, we find that subsequent to the giving of the parole law charge in question the court, near the conclusion of the charge, instructed the jury:

“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.”

In determination of the question posed the charge must be read as a whole.

Examining the jury argument at the penalty stage of the trial, I find no mention of parole or the parole law charge. The prosecutor did indeed ask for life imprisonment, but he carefully based that upon the facts of the offense and appellant’s arrest and the appellant’s five prior felony convictions.

Further, in Almanza, supra, at p. 174 , the majority wrote:

“We hold that finding error in the court’s charge to the jury beings — not ends — the inquiry; the next step is to make an evidentiary review along the lines of that described above in Davis, supra [28 Tex.Ct.App. 542, 13 S.W. 994, 995 (1890); writ of error dism’d 139 U.S. 651 , 11 S.Ct. 675 , 35 L.Ed. 300 (1891) ], as well as a review of any other part of the record as a whole which may illuminate the actual, not just theoretical harm to the accused. (Citations omitted)” Emphasis supplied. See also Lawrence v. State, 700 S.W.2d 208, 212 (Tex.Cr.App.1985) (“[b]y failing to object in the instant case, the appellant is charged with showing actual egregious harm under Almanza.”)

In applying the Almanza analysis to this unobjected to portion of the charge at the penalty stage of the trial, although the charge be error, I cannot agree that the error is so egregious and created such harm that the appellant was “deprived of a fair and impartial trial.” See Article 36.19, V.A.C.C.P.

While I agree the statute is unconstitutional, I do not agree that the judgment of conviction and the punishment assessed need to be reversed.