# 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/9778059

## 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 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/9778059

## 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 to majority opinion on Court’s own motion for rehearing.
So there will be no questions about where I stand on the issues addressed by this Court, in the “Court’s Own Motion for Rehearing” opinion, and this Court’s holdings, I file this concurring opinion.
I am still unable to conclude, as a matter of Federal Constitutional law, that the statute authorizing the parole law instruction is unconstitutional because it denies appellant due process of law. See the concurring opinion that I filed in Andrade v. State, 700 S.W.2d 585, 589 (Tex.Cr.App.1985). As to the majority opinion’s holding that the parole law statute violates Art. II, § 1, of the Texas Constitution, the separation of powers clause, see “Part I” of the majority opinion, but for stare decisis (“To abide by, or adhere to, decided cases”), Black’s Law Dictionary 1261 (1979 edition), and this Court’s erroneously reasoned and decided decision of Meshell v. State, 739 S.W.2d 246 (Tex.Cr.App.1987), I would not join that part of Part I of the majority opinion which holds the statute unconstitutional for that reason. However, until Meshell, supra, is expressly overruled by this Court, it must be followed. Otherwise, stare decisis be damned. Therefore, I am compelled by my oath of office to adhere to Meshell, supra, which supports the majority opinion’s holding that the parole law statute is unconstitutional because it violates the separation of powers clause of the Texas Constitution. Given the opportunity, I will, of course, vote in a New York minute to expressly overrule all of Meshell, supra, and dispatch it far beyond Davey Jones’ footlocker. Therefore, I am constrained to join all of Part I of the majority opinion.
I join Part II of the majority opinion that holds that appellant, by failing to object in the trial court, did not waive his right to challenge on appeal the constitutionality of the parole law statute. I do so without any equivocation. It is the well established law in this state that a court will always adjudicate whether a statute is unconstitutional when its unconstitutionality is obvious and apparent, even when the issue is not raised in the trial court or on appeal. See the cases collated under West’s Constitutional Law Key 46(2). Thus, given the fact that the unconstitutionality of the statute authorizing the parole law instruction is obvious and apparent, the statute was subject to attack by appellant at any time.
Given the fact that the majority opinion has adopted in principle what I stated in the concurring and dissenting opinion that I filed on original submission, that because we are dealing with statutory charge error, and the statute has been declared unconstitutional, and not dealing with mere judicial charge error, what this Court stated and held in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), which only dealt with judicial charge error, is inapplicable to this cause, and given the further fact that my legal views have not changed, plus the fact that the majority does not see fit to solicit the views of the jurors in this cause as to what effect, if any, the parole law instruction might have had on them when they voted to assess appellant’s punishment at life imprisonment, I join Part III of the majority opinion, that holds that Rule 81(b)(2), Rules of Appellate Procedure, which provides us with the general harmless error test, is the one that should be used by this Court in this case in order to make the determination whether, beyond a reasonable doubt, the charge error made no *556 contribution either to appellant’s conviction or to the punishment that was assessed.
I emphasize that I am forced to decide whether the error was harmless pursuant to Rule 81(b)(2) because the majority opinion refuses to mention or discuss Rule 606(b) of the Rules of Criminal Evidence. Perhaps Rule 606(b) is not mentioned or discussed in the majority opinion because those members of this Court who join Part IV of the majority opinion do not want to be told that in approving Rule 606(b) the members of this Court, who did not have the benefit of any public hearings on the rule, failed to comprehend that the Rule amounts to no rule because the second half of the Rule clearly “x’s out” the first half of the Rule, thus resulting in the fact that there is now no rule that forbids petit jurors to testify to the validity of their punishment verdict.
The first half of Rule 606(b) provides: (b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a [grand juror or petit] juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations [as to the indictment or the jury’s verdict of guilt or punishment] or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.
The second half of the Rule, however, provides the following:
[E]xcept that a juror may testify as to any matter relevant to the validity of the verdict or indictment.
Given the above, the last sentence of the Rule, “Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes”, appears to me to closely rememble what I would characterize as a “dangling participle sentence”. In deciding what importance the last sentence might have, when one "x’s out” the first half of the Rule with the second half of the Rule, I will, of course, defer to those persons who like to diagram sentences and give them the opportunity to diagram all of the sentences found in Rule 606(b), and will not undertake that chore. In any event, given the wording of the Rule, excluding the last sentence, it is clear to me that it was the apparent intent of those members of this Court who voted for the rule that the second half of the rule would “x out” the first half of the Rule, leaving the last sentence standing alone. Thus, the last sentence becomes Rule 606(b), and it, standing alone, can obviously only give meaning to Rule 606(a).
On page 532, the majority opinion states: “We are unable to know what process the jury underwent in assessing punishment ...” If the jurors can tell us, how come we are unable to know? To clearly decide the issue, all one must do is ask the jurors whether, in assessing appellant’s punishment at life imprisonment, they considered the now declared unconstitutional parole law instruction. Rule 606(b), as it should be read, is certainly no legal impediment to asking the jurors a question that goes to the validity of their verdict on punishment, and the validity of their verdict on punishment is most certainly raised in this cause.
Therefore, if I had my druthers, I would remand this cause to the court of appeals so that this cause could be abated to the trial court so that the trial judge could conduct a “harmless error” type hearing on what effect, if any, the parole law instruction might have had on the jurors when they voted to assess appellant’s punishment at life imprisonment. Of course, at the hearing the State would have the burden to establish, if it could, that none of the jurors considered the parole law instruction when they voted to assess appellant’s punishment at life imprisonment, i.e., that the instruction made no contribution to the punishment that was assessed. Also at the hearing, it would be the State’s burden to summon all of the jurors to testify at the hearing, or show cause why those who were absent were either dead or so disabled that they could not attend the hearing and it would not be feasible to move *557 the courtroom to where they are totally incapacitated. It would further be incumbent upon the State at the hearing to establish through those jurors who were able to testify that the parole law instruction was not considered or used by any of the jurors in their decision to assess appellant’s punishment at life imprisonment, i.e., it made no contribution the punishment that was assessed.
Because the majority of this Court is unwilling to have the only persons who know the answer, the jurors in this cause, respond, I am thus relegated to my ever present court made crystal ball to make the determination whether the charge error was harmful or harmless to appellant. Therefore, viewing the matter through my crystal ball, and in the abstract from my perch on the Court of Criminal Appeals, in light of the facts of this cause, I unequivocally state that there is not a reasonable possibility that any rational jury would have returned any other verdict that the one that the jury in this cause did: life imprisonment.
I conclude this opinion with a note of alarm. The members of this Court are now witnessing some appellant’s petitions for discretionary review that assert that like charge error as here was harmful to the appellant, and that such made some contribution to the punishment that was assessed, with some opinions of the courts of appeals merely blowing the appellants off without making any kind of harm analysis, and merely citing the original opinion of this Court that was handed down on original submission as its authority. Sad to say, this Court is merely refusing those petitions for discretionary review. This, however, is not true of all of the courts of appeals that have been confronted with the harmless error issue because many of our courts of appeals have done a correct harmless error analysis in overruling the asserted charge error contention. Hopefully, today’s majority opinion will change what has been occurring in some cases. I caution the members of the court of appeals that merely because this Court has in the past refused petitions for discretionary review, where the court of appeals did not make a harm analysis, that this should not be taken to mean that this Court will at all times in the future continue to refuse like petitions for discretionary review. Therefore, I strongly suggest to the members of the courts of appeals that any time the issue is presented the members of the court of appeals make a careful harmless error analysis. Whether the error will or will not constitute harmful error will, of course, as here, be dependent upon the peculiar facts of the case. The facts here that went to punishment would easily warrant any rational trier of fact to assess appellant’s punishment at life imprisonment. As far as harmless error goes, I have viewed that issue from the standpoint of the facts that went to the assessment of life imprisonment. I caution the members of the courts of appeals: When it comes to deciding whether the error was harmless, not all cases are going to nicely fit the facts of this case.
Therefore, I respectfully concur and dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9778059. Public record. Not legal advice.