Arnold v. State

• Decision Date: 24 January 1990
• Docket Number: 507-89,Nos. 482-89,627-89,483-89,530-89 and 373-89,s. 482-89
• Citation: 786 S.W.2d 295
• Parties: Joel Gregory ARNOLD, Appellant, v. The STATE of Texas, Appellee. Anderson GAINES, Appellant, v. The STATE of Texas, Appellee. Edwin Francis HOOPER, Jr., Appellant, v. The STATE of Texas, Appellee. Gary Wayne PAYNE, Appellant, v. The STATE of Texas, Appellee. Peggy Marie TAYLOR, Appellant, v. The STATE of Texas, Appellee. *
• Court: Texas Court of Criminal Appeals

Page 295

786 S.W.2d 295

Joel Gregory ARNOLD, Appellant, v. The STATE of Texas, Appellee.

Anderson GAINES, Appellant, v. The STATE of Texas, Appellee.

Edwin Francis HOOPER, Jr., Appellant, v. The STATE of Texas, Appellee.

Gary Wayne PAYNE, Appellant, v. The STATE of Texas, Appellee.

Peggy Marie TAYLOR, Appellant, v. The STATE of Texas, Appellee. ^*

Nos. 482-89, 483-89, 507-89, 627-89, 530-89 and 373-89.

Court of Criminal Appeals of Texas,

En Banc.

Jan. 24, 1990.

Rehearing Denied March 7, 1990.

Robert T. Baskett (court appointed on appeal only), Dallas, for Arnold.

Henry Wade, former Dist. Atty., John Vance, Dist. Atty., and Donald G. Davis, Norman Kinne and Mark Hasse, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

David R. Weiner (court appointed on appeal), San Antonio, for Gaines.

Sam D. Millsap, Jr., former Dist. Atty., Fred G. Rodriguez, Dist. Atty., and Edward F. Shaughnessy, III, Phylis West, Juan Chavira and Raymond J. Hardy, Jr., Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

George O. Jacobs, Houston, Jim Vollers, Austin, for Hooper.

John B. Holmes, Jr., Dist. Atty., and Harvey Hudson, Dan Rizzo and Leslie Brock, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

John H. Hagler (on appeal only), Dallas, for Payne.

Henry Wade, former Dist. Atty., John Vance, Dist. Atty., and Mary Jo Kain, Thomas R. Gregg, Stephen Miller and Pamela Sullivan Berdanier, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Danny D. Burns, Fort Worth, for Taylor.

John Vance, Dist. Atty., Kathi Alyce Drew, Marcus Busch and Mark Hasse, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

These causes present various aspects of application of Tex.R.App.Pro.Rule 81(b)(2) to "statutory" error at the punishment stage in charging a jury on parole law pursuant to Article 37.07, § 4, V.A.C.C.P. Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987-1988). "Rose error" is giving an instruction in terms of the constitutionally infirm statute. Id., at 535, 537 and 553-554.

Finding that courts of appeals are conducting disparate harm analyses of Rose error, we granted review in these causes and consolidated them for submission on briefs and oral argument in order for this Court to address recurring problems in appellate review of Rose error. Tex.R.App.Pro.Rule 200(c)(1), (2) and (6). We begin with pertinent basic underlying propositions, then discuss various germane considerations and finally apply them to specific situations at issue.

I

Unlike the rule governing reversal of judgment in a civil cause, Rule 81(b)(2) provides:

"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." ¹

To the fullest extent of legislatively granted authority, this Court created the rule in interest of consistency and our formulation of the "unless" clause is taken practically verbatim from language in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), that the Supreme Court isolated and iterated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in fashioning its rule for determining when "a federal constitutional error can be held harmless," viz :

"... There is little, if any, difference between our statement in Fahy v. Connecticut about 'whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, adhere to the meaning of our Fahy case when we hold, as we do now, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id., at 24-26, 87 S.Ct., at 828-829, 17 L.Ed.2d, at 710-711.

See Mallory v. State, 752 S.W.2d 566, at 569 (Tex.Cr.App.1988) (Rule 81(b)(2) eliminated elective propriety of expressing test for harmless error in a less than uniform fashion); Harris v. State (Tex.Cr.App. No. 69,366, delivered June 28, 1989, motion for rehearing pending) (Rule 81(b)(2) is "rhetorical and semantic equivalent of the harmless error standard announced by the Supreme Court for constitutional errors in Chapman v. California," id., majority slip opinion at 29); Bennett v. State, 766 S.W.2d 227, at 229, n. 7 (Tex.Cr.App.1989) (Rule 81(b)(2) is codified progeny of Chapman v. California harmless error analysis). ²

Applying the federal rule to Texas punishment proceedings are Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967) (admission of presumptively void prior conviction not cured by instruction to disregard, nor harmless within meaning of Chapman v. California, supra), and the opinion in Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988); see also our own decisions preceding Rule 81(b)(2) in, e.g., Maynard v. State, 685 S.W.2d 60, at 67-68 (Tex.Cr.App.1985), Clemons v. State, 605 S.W.2d 567, at 571-572 (Tex.Cr.App.1980), and Jordan v. State, 576 S.W.2d 825, at 829-830 (Tex.Cr.App.1978).

Thus while previously this Court has often dealt with harm in jury misconduct implicating parole law, insofar as making an analysis under Rule 81(b)(2) to determine likelihood of harm resulting from an unconstitutional instruction pursuant to Article 37.07, § 4, appellate courts confront a task with little precedent. We do know the rule is applicable and that as beneficiary of the error the State has the burden to show beyond a reasonable doubt that the error did not contribute to the verdict on punishment. Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d, at 710; Satterwhite v. Texas, supra, 486 U.S. at 259, 108 S.Ct., at 1798, 100 L.Ed.2d, at 295; Harris v. State, supra, (Clinton, J., dissenting at 10); see Hargraves v. State, 738 S.W.2d 743, at 749 (Tex.App.--Dallas 1987) PDR refused. Thus an appellate court must be able to find an error harmless beyond a reasonable doubt. Rule 81(b)(2); Chapman v. California, supra.

II

A

Where the evil produced by a constitutional violation at trial is limited in scope to erroneous admission of particular evidence, an impermissible comment or a flawed instruction on guilt, usually a reviewing court may undertake with some confidence its task of assessing the likelihood that the error materially affected deliberations of the jury. Satterwhite, supra, 486 U.S. at 257, 108 S.Ct., at 1797-1798, 100 L.Ed.2d, at 294-295; Holloway v. Arkansas, 435 U.S. 475, at 490-491, 98 S.Ct. 1173, at 1182, 55 L.Ed.2d 426, at 438 (1978); see Carella v. California, 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (1989). ³ However the scope of Rose error may not be so readily discerned, or its consequences so easily assessed. Rose, supra, at 537 and 554; cf. Satterwhite, supra, 486 U.S. at 256, 108 S.Ct., at 1797, 100 L.Ed.2d, at 1798.

In all felony cases where a jury determines punishment, there is not an "issue" as such for it to decide; indeed common practice is to admonish the jury that "it will not be proper for you in determining the penalty to be assessed to fix the same by ... any method other than a full, fair, and free exercise of the opinion of individual jurors under the evidence admitted before you." Texas Criminal Pattern Jury Charges (State Bar of Texas 1975), § CPJC 12.42((a)-(c), at 84, and § CPJC 12.42(d), at 87; McCormick & Blackwell, Texas Criminal Forms and Trial Manual, § 81.05, 8 Texas Practice 270; McClung, Jury Charges for Texas Criminal Practice (Rev.Ed.1988) 242. Intruding into its wide area of discretion, the Legislature commanded that the jury be instructed about the parole law--"the court shall charge the jury in writing as follows"--as applicable to the status of defendant depending upon its verdict of guilt, an affirmative finding of a deadly weapon and allegations of prior conviction for enhancement. Article 37.07, § 4(a), (b) and (c).

"The evil to be avoided is the consideration by the jury of parole in assessing punishment." Rose v. State, 752 S.W.2d 529, at 535, quoting Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982). Thus the task of a reviewing court is to make "an intelligent judgment" about whether the unconstitutional instruction "might have affected [or influenced]" deliberations of the jury on punishment. Satterwhite, supra, 486 U.S. at 258, 108 S.Ct., at 1798, 1799, 100 L.Ed.2d, at 295, 296; see Maynard v. State, supra, at 67-68; Clemons v. State, supra, at 571-572; Jordan v. State, supra, at 830; Spelling v. State, 768 S.W.2d 949 (Tex.App.--Fort Worth 1989) PDR pending (Keltner, J., dissenting) ("whether the trial court's instruction on parole subjectively influenced the jury's verdict"). Again, under Rule 81(b)(2) the burden of negativing any such influence beyond a reasonable doubt is on the State. See ante, at 298.

As we analyzed § 4 in Rose, in each subsection the statute mandates the trial court to inform the jury:

first: "Under the law applicable to this case, the defendant ... may earn time off the sentence imposed through the award of good conduct time;"

second: that length of imprisonment "might be reduced by the award of parole;"

third: "Under the law applicable to this case," there is a precise formula (with or without good conduct time) to determine when "the defendant" will become eligible for parole ;

fourth: While one cannot accurately predict "how the parole law and good conduct time might be applied to this defendant," because that "will depend on decisions...