Rose v. State

OPINION ON COURT’S OWN MOTION FOR REHEARING

CAMPBELL, Judge.

I.

We are rehearing this case on the Court’s own motion. 1 This rehearing is for the purpose of reexamining the correctness of our holding that Article 37.07, § 4(a) V.A.C.C.P. is unconstitutional. A majority now holds that the statute is unconstitutional because it violates the separation of powers and the due course of law provisions of the Texas Constitution. 2

II.

At trial, appellant did not object to the jury charge mandated by Art. 37.07, § 4(a). We hold that such a failure to object does not, in the context of the in *553 stant case, waive appellant’s ground for review. 3 We will now explain this holding.

A majority of this Court recently declared Article 32A.02, V.A.C.C.P. [hereinafter: Speedy Trial Act], unconstitutional and void in its entirety. Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987) (rehearing denied November 4, 1987). The holding in Meshell announced that by enacting the Speedy Trial Act the Legislature had violated the separation of powers doctrine under Article II, § 1 of the Texas Constitution. We recently held that an unconstitutional statute is void from its inception and cannot provide a basis for any right or relief. Jefferson v. State, 751 S.W.2d 502 (Tex.Cr.App. No. 0327-85 delivered May 11, 1988). 4 See also 12 Tex.Jur.3d, Constitutional Law, § 41, at 548 (and cases in n. 33 thereof).

Like the Speedy Trial Act, we have declared Art. 37.07, § 4(a) unconstitutional for, inter alia, violation of the separation of powers doctrine. One of the effects of holding the Speedy Trial Act void was to relieve litigants from objecting at trial or raising the issue on direct appeal. Jefferson, supra. By analogy, in the instant case, appellant is also relieved of the obligation of objecting at trial. See also Reyes v. State, 753 S.W.2d 382 (Tex.Cr.App.1988).

III.

Having decided that appellant has not waived his claim through failure to object, we will next determine the correct standard of harm analysis to be applied to this case. Initially, we will examine whether the standard in Almanza, supra, or some other standard of harm should be applied to the instant case.

Generally, appellate review of error in criminal cases is conducted in a two-step process. The first step is to determine what, if any, error occurred in the trial. The second step requires us to evaluate the error in order to determine whether it calls for reversal of the conviction. Our opinion on original submission held that Article 37.07, § 4(a) was passed in contravention of the Texas Constitution’s due course and separation of powers provisions. Thus, our harmless error analysis will be based on whether the error of applying a constitutionally infirm statute to a defendant is reversible. This type of “statutory” error should be distinguished from charging error as envisioned by Article 36.19 V.A.C.C. P. and Almanza, supra. Article 36.19, and thus Almanza, is invoked upon a violation of any of Articles 36.14 through 36.18 V.A. C.C.P. Our original opinion did not hold, nor have any of the parties alleged, that the charge in the instant case presents a violation of any of these statutory provisions.

Tex.R.App.Pro. 81(b)(2) provides the general harmless error test to be applied by appellate courts in criminal cases.

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

Tex.R.App.Pro. 81(b)(2). This rule has been applied in a variety of contexts, 5 and *554 it has been specifically applied to the denial of state and federal constitutional rights. Erwin v. State, 729 S.W.2d 709 (Tex.Cr.App.1987) (compulsory process for defendant). Because there is no countervailing procedural rule or statutory provision, the harm analysis codified in Rule 81(b)(2) is applicable to the error in this case.

IV.

Applying the harm analysis of Rule 81(b)(2) to the facts of this case, appellant was convicted of aggravated robbery and assessed the maximum sentence, life in the Texas Department of Corrections. We are unable to know what process the jury underwent in assessing punishment; however, the record in this case presents factors which indicate that the error was harmless.

After reading the statutory parole instruction, the trial judge also read the jury the following instruction:

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.

We generally presume, although the presumption is rebuttable, that a jury follows the instructions given by the trial judge, in the manner presented. Cobarrubio v. State, 675 S.W.2d 749, 752 (Tex.Cr.App.1983). See also, in the context of instructions to disregard, Nichols v. State, 754 S.W.2d 185, 199 (Tex.Cr.App.1988); Gardner v. State, 730 S.W.2d 675, 696 (Tex.Cr.App.) ce rt. denied, — U.S. -, 108 S.Ct. 248 , 98 L.Ed.2d 206 (1987). Here, in addition to the statutory instruction not to use information concerning parole in assessing this particular appellant’s punishment, the trial judge flatly told the jury [under the old law] that parole was not their concern. This is particularly significant because this was the judge’s last word on the subject.

In addition to the curative instruction, the facts of the offense militate in favor of a harsh sentence. Appellant and two other men robbed a man, in his office, at gun point. The three threatened to kill the victim and left him bound on the floor. The robbers took $160 and the victim’s pistol. Eight days later, Ennis police officers stopped appellant and his companion, Fitch. ■ In a pat-down search, the officers discovered that each of the two men was carrying a pistol. At this point, officer Reno drew his gun and pointed it at Fitch in order to disarm him. Appellant began to struggle with the other officer, Shoquist, for possession of the other gun. When Reno called Shoquist for help with appellant, Shoquist joined the struggle. In the meantime, Shoquist lost possession of the gun taken from Fitch. Appellant yelled, “Shoot him, shoot him,” and Fitch shot Reno in the neck. During the confusion arising from the shooting, appellant escaped in a police squad car. Appellant was apprehended after a high speed chase which ended when he crashed the car into a concrete median.

Compounding these facts surrounding the offense and subsequent arrest was appellant’s criminal record. During the punishment phase of appellant’s trial, the State waived the indictment’s two enhancement paragraphs. Pursuant to Art. 37.07 § 3 V.A.C.C.P., the State introduced appellant’s five prior felony convictions. Appellant had been convicted of breaking a seal fixed to interstate shipping ( 18 U.S.C. § 2117 ), forgery, burglary, and, on two occasions, robbery. These convictions most certainly, in addition to the facts of the instant offense, contributed to the jury’s assessment of punishment.

The presumption that the jury followed the trial judge’s final instruction to totally disregard parole, coupled with the particularly heinous facts of this case and appellant’s prior criminal record, lead us to the conclusion that the statutory parole in *555 struction did not affect appellant’s sentence. Thus, we find beyond a reasonable doubt that the error made no contribution to the punishment assessed. Tex.R.App. Pro. 81(b)(2).

Accordingly, the judgment of the Dallas Court of Appeals is affirmed.

W.C. DAVIS, J., concurs in result.

CLINTON, J., dissents to Part IV.

. Tex.R.App.Pro. 2(b). The motions for rehearing filed by the District Attorney, State Prosecuting Attorney and appellant are hereby overruled.

. Those judges joining this portion of the opinion ascribe to the conclusions expressed by Judge Clinton, in our original opinion, that Article 37.07, § 4(a) violates the separation of powers provision, Article II, § 1, and the due course *553 of law provision, Article I, §§ 13 and 19, of the Texas Constitution.

. We note here that the lead opinion on original submission did not address appellant's failure to object to the challenged parole instruction. Those judges who would have applied Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), addressed the issue tacitly through Almanza ⅛ two-tiered analysis.

. Although not before us in the present case, we think it wise to point out that this general rule is subject to exception where a judgment has been rendered under an unconstitutional statute and litigants have relied upon the benefits of the statute until declaration of its invalidity. Lone Star Motor Import, Inc. v. Citroen Cars Corp., 288 F.2d 69 (5th Cir.1961); Stevenson v. State, 751 S.W.2d 508 (Tex.Cr.App.1988) (Miller, J. concurring and Duncan, J. dissenting). See also 12 Tex.Jur.3d, Constitutional Law, § 41, at 548 (and cases in nn. 34-35 thereof).

.Murphy v. State, (Tex.Cr.App. No. 102-86 delivered April 6, 1988) (Motionfor rehearing pending) (evidence of extraneous bad acts); Stahl v. State, 749 S.W.2d 826 (Tex.Cr.App.1988) (improper jury argument); Bennett v. State, 742 S.W.2d 664 *554 (Tex.Cr.App.1987) (appointment of psychiatrist to examine defendant solely for the purpose of determining future dangerousness.