# 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/9778055

## 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:** Concurring in part by Teague
- **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/9778055

## 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

TEAGUE, Judge,
concurring and dissenting.
I only join Part III of the majority opinion that is authored for the Court by Judge Clinton that declares Art. 37.07, § 4(a), V.A.C.C.P., the statutory parole law instruction statute, unconstitutional because it violates the due course of law provisions of the Texas Constitution. Also see the concurring opinion that I filed in Andrade v. State, 700 S.W.2d 585, 589 (Tex.Cr.App.1985), in which I pointed out why such an instruction would probably not run afoul of the due process clause of the Federal Constitution’s Fourteenth Amendment, but would perhaps run afoul of applicable Texas Constitutional provisions.
My main disagreement with the statute is as the majority opinion states, namely: “The risk that punishment will be based on [inadmissible] extraneous considerations is intolerable in a society that constitutionally demands concepts of fundamental fairness be honored in its criminal justice system.” (Citations omitted.) (Page 537.) Also see the concurring opinion that I filed in Andrade, supra. However, given the fact that appellant did not complain in the trial court about the instruction being given to the jury, and the facts that were presented that might have enabled the jury to assess *542 the punishment it did, I am unable to agree with Judge Clinton’s majority opinion’s conclusion that the error in instructing the jury was “calculated to deny [the appellant] a fair and impartial trial on the issue of punishment.” (Page 537. Footnote omitted.).
The record clearly reflects that when the trial judge made it known to the world, and the appellant and his attorney, of course, that he was going to give the jury the statutory parole law instruction that is declared by a majority of this Court today in this case to be unconstitutional, neither appellant nor his attorney complained by timely and properly objecting to the trial judge’s act, nor is there any evidence in the record that might reflect or indicate that appellant did not want the jury so instructed. By their silence on the subject, I must assume that they were satisfied with the trial judge giving the instruction on the statutory law parole law instruction; otherwise, it stands to reason that they would have timely and properly complained.
When the Legislature of this State enacts a statute whose validity is highly questionable, and is facially unfavorable to the defendant, such as the parole law instruction statute that is implicated here, or, for that matter, when this Court hands down an opinion that announces a highly questionable principle of law, notwithstanding that at the moment in time when the statute or decision is invoked and applied in a criminal case it is then “good” law, I find that it is still incumbent upon the defendant or his attorney to timely and properly complain in the trial court if the defendant desires to later complain on appeal about the statute, or the principle of law announced by this Court, in the event there is an appeal. If neither the defendant nor his attorney complains in the trial court, I find that the defendant is then relegated to asserting and proving, if he can, that the above caused his trial to result in a miscarriage of justice.
It should now be unquestioned that had all attorneys of this State in the past not timely and properly complained in the trial courts of this State about questionable statutes enacted by our Legislature, or did not complain about some of this Court’s questionable decisions, thus laying the predicate to later complain about the matter before the Supreme Court of the United States or in federal court, our State’s criminal law would probably not have progressed very far from where it began in 1836. If you do not believe me, go and read the decisions by the Supreme Court of the United States that directly involve criminal cases from Texas, which that Court reversed, holding that what this Court said was the federal constitutional law of the land was really not that law. Those decisions, standing alone, actually make a compendium on federal constitutional law.
When a statute is enacted by the Legislature of this State, that is facially questionable, as here, I find that it is not only within the province of the parties to timely and properly question in the trial court the wisdom of what the Legislature has enacted, they actually have a legal duty to question that statute’s validity in the trial court.
When a defendant appeals his conviction, and he did not complain in the trial court about what he complains on appeal, appellate courts usually hold that he waived that complaint, and will not ordinarily review it, or, if the court reviews the contention, what is stated in the opinion regarding the complaint actually amounts to nothing less than dicta or obiter dicta; lip service, if you please.
In the instance where the defendant does not complain in the trial court about the statutory mandated parole law instruction to the jury, as occurred here, before reversible error is shown to exist, it must be established that the instruction affected the fairness, integrity, or public reputation of the defendant’s trial that it caused the trial to be labeled “a miscarriage of justice.” In Federal courts, this is often referred to as “plain error”. See Hunter, Federal Trial Handbook 2d (1984 edition). In Texas, before Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1984), was decided by a majority of this Court, this was usually referred to in common parlance as “fundamental error”, “fundamental constitu *543 tional error” or “error of constitutional dimension”.
I pause to point out that nowhere in Almanza, supra, is the subject of a statutorily created jury instruction, which statute is later declared to be unconstitutional by this Court, discussed, either expressly or by implication, and, because we are dealing here with a statutorily enacted jury instruction, and not a non-statutorily created jury instruction, which is now declared to be unconstitutional by this Court, Almanza, supra, is inapplicable to this case. This is what causes the concurring and dissenting opinions that are filed in this cause to be flawed.
Given the facts of this case, I do not believe that any rational person, much less a judge on this Court, can unequivocally state beyond a reasonable doubt that the statutorily created parole law jury instruction that was given in this cause so infected the punishment phase of appellant’s trial that it caused a miscarriage of justice to occur when the jury assessed appellant’s punishment at life imprisonment.
In this cause, appellant was on trial for committing the offense of aggravated robbery, a first degree felony, which carried “hard time” punishment anywhere from 5 years to 99 years' confinement in the Department of Corrections, or life imprisonment in the Department of Corrections. In this instance, the jury, in assessing appellant’s punishment was not only entitled to consider the facts of the case, but was also entitled to consider the following independent criminal offenses that appellant committed: 2 theft offenses, 1 unlawfully carrying a deadly weapon offense, either 2 aggravated assault on a police officer offenses or 1 attempted capital murder of a police officer offense, and 1 felony theft of a police car. The State also established at the punishment stage of the trial that appellant had been to penal institutions three times and had five prior felony convictions which involved the State offenses of forgery, burglary, two robberies, and the federal offense of breaking a seal fixed to interstate shipping. Given these facts, and notwithstanding that punishment was limited to that provided for a first degree felony, I am unable to find that the parole law instruction so infected the punishment phase of appellant’s trial that the assessment of life imprisonment by the jury was a miscarriage of justice.
Where the defendant is shown to have timely and properly complained in the trial court about the trial judge giving the jury the statutory parole law instruction, I would find that the trial judge committed trial error in giving the instruction, although at the time of the defendant’s trial the giving of the parole law instruction was not error. I would then invoke and apply the principle of law provided in Rule 81(b)(2), Tex.Rules of Appellate Procedure, to that cause. That rule provides that if this Court finds that error occurred in the trial court, the trial court’s judgment shall be reversed, “unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment”. I would then remand the cause to the particular court of appeals from whence the case came, for that court to abate the appeal to the trial court in order for the trial judge to conduct “a harmless error hearing” so that the State, if it desires to do so, might be given the opportunity to establish on the record, with admissible relevant evidence, that none of the jurors considered the parole law instruction in assessing the punishment. Of course, because the question can only be answered by testimony from all of the jurors, it would be necessary for the State to have all of the jurors testify at the hearing, or account for their absence.
At first blush, my suggestion might appear to be contrary to the provisions of Rule 606(b), Texas Rules of Criminal Evidence. However, it is not. That rule, contrary to its federal counterpart, is facially internally self-contradictory in that the second part of the rule washes out the first part of the rule. However, because the rule only applies on its face to “inquiries] into the validity of a verdict or indictment”, it should not control a “harmless error” type hearing, the result of which could not conceivably affect the validity of the jury’s verdict, i.e., in that instance, it is not the *544 jury’s verdict that is being attacked, it is determining what effect the erroneous parole law instruction might have had upon the jurors when they decided the defendant’s punishment.
The only significant question that the jurors would be asked at the “harmless error” hearing is whether the parole law instruction had any effect on their decision to assess the punishment that was assessed. In a sense, the parole law instruction amounts to communicating to the jury external prejudicial information, or it amounts to “outside influence”. Hon. Linda Addison, an attorney of this State, who is a frequent contributor of legal articles to the Texas Bar Journal, recently and correctly pointed out in her article entitled “Conduct Unbecoming a Jury: Rule 606(b)”, September, 1987 Texas Bar Journal, that the rule permits jurors to testify if “it can be shown that an ‘outside influence’ was improperly brought to bear upon any juror.” (872). If necessary, this Court should interpret the rule to permit interrogation of jurors where improper communication with the jury has occurred. If the internally self-contradictory Rule 606(b) can be interpreted to mean that no matter what the external prejudicial communication with the jury might have been, jurors are totally and absolutely immune from being called to testify, then, of course, it is obviously time for this Court to rewrite the rule. Once the word is out that jurors are totally immune from being called to testify, I fear that serious jury misconduct will commence to take place, to the detriment of the State as well as the accused. Understandably, if none of the jurors in a criminal case can be questioned, then the effect, if any, the parole law instruction might have had on the jury can never be determined. The result of such a holding would mean that every single criminal conviction that has occurred in this State, where the parole law instruction was given over objection, will have to be reversed or set aside by this or some other appellate court. As a member of this Court, as well as a private citizen of this State, I, for one, am not ready to vote to give the internally self-contradictory Rule 606(b) that interpretation.
Therefore, I only join part III of of the opinion that Judge Clinton authors for a majority of this Court, in which the statutory parole law instruction statute is declared unconstitutional. I respectfully dissent to the holding that the original error that was committed by the Legislature, which was carried into execution by the trial judge, was, standing alone, “calculated to deny [the appellant] a fair and impartial trial on the issue of punishment.” I would hold, instead, that given the circumstances and facts of this case, the error was not such that it caused a miscarriage of justice, and would affirm the judgment of the court of appeals, which affirmed the trial court’s judgment of conviction. 1
. Given what is in the majority opinion for the Court, I am able to fully comprehend what the first part of the last sentence in the penultimate paragraph states, “Therefore, we hold that Article 37.07, Section 4(a), along with the instruction it mandates, violates Article I, Section 19." However, given what is not stated in the opinion, I am at a total loss, as I am sure appellate judges, trial judges, prosecutors, defense attorneys, and defendants will be, what the last part of the sentence, which states "and is calculated to deny right of an accused to a fair and impartial trial on the issue of punishment”, (footnote omitted), means or is supposed to mean. A majority of this Court in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), approved the following statement, to-wit: "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’”. (171). Well, what could be more "egregious harm” than error in a charge that is “calculated to deny right of an accused to a fair and impartial trial on the issues of punishment.” Although a majority of the Dallas Court of Appeals found Article 37.07, Section 4(a), V.A.C.C.P., constitutional, which holding this Court disagrees with, it also found, for reasons stated, that the statutory instruction was not so egregious as to deny appellant a fair and impartial trial by jury on the issue of punishment. Is the majority opinion for this Court saying that, in my words, although the statute is unconstitutional, and the statutory instruction was so egregious that it was calculated to deny appellant a fair and impartial trial on the issue of punishment, notwithstanding this, it did not deny him a fair and impartial trial on the issue of punishment? Isn’t this slightly contradictory? Given the fact that under Almanza, supra, the error in giving the charge was egregious, it would appear that the error was automatic reversible error. Plain error, if you please. I dissent *545 because at a minimum, given what the majority opinion holds, the cause should be remanded to the court of appeals for it to reconsider the matter in light of this court’s declaration that the statute is unconstitutional. When the cause was originally before the court of appeals, that court viewed the statute in light of the presumption that the statute was constitutional. This Court’s declaration, of course, has changed that perception, and the matter should now be viewed by the court of appeals in line with this Court’s holding that the statute is unconstitutional. However, as I have previously pointed out, in light of the circumstances and facts of this cause, the error did not cause the punishment that was assessed to be labeled "a miscarriage of justice." Is a majority of this Court implicitly adopting the reasons that the majority of the Dallas Court of Appeals gave as to why the statutory charge error did not deny and deprive appellant of a fair trial on the issue of what punishment should have been assessed by the jury? As to the remarks by the individual justices on the court of appeals and this Court, which discuss why the unobjected to or not complained about statutory charge error was not reversible error, although perhaps hopefully persuasive, these are not the words of this Court or the Dallas Court of Appeals. They are only the words of the individual members of the respective courts. I honestly believe that the members of the bench and bar of this State will be at a loss as to how this Court’s majority opinion should be received. To tell the bench and bar of this State that the statute is unconstitutional but not to tell them how this holding should be applied to a particular case in the future is almost to tell them nothing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778055. Public record. Not legal advice.