Brown v. State

• Decision Date: 10 May 1989
• Docket Number: No. 870-87,870-87
• Citation: 769 S.W.2d 565
• Parties: Mark BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 565

769 S.W.2d 565

Mark BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 870-87.

Court of Criminal Appeals of Texas,

En Banc.

May 10, 1989.

Tena M. Hollingsworth, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty., Kathi Alyce Drew, John D. Nation, Cynthia Hayter, Lana McDaniel, Asst. Dist. Attys., Dallas, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted by a jury of the offense of aggravated robbery pursuant to V.T.C.A. Penal Code, § 29.03. The jury then assessed punishment at ninety-nine years confinement in the Texas Department of Corrections and a $10,000 fine. The Dallas Court of Appeals affirmed appellant's conviction in an unpublished opinion. Brown v. State, No. 05-86-00769-CR (Tex.App.--Dallas, delivered June 15, 1987). We granted appellant's first two grounds for review to determine whether the court of appeals was correct in holding Article 37.07, § 4(a), V.A.C.C.P., the parole instruction law, was constitutional. Appellant's third ground for review was also granted to determine whether the court of appeals erred in its determination that the prosecutorial argument which apparently requested the jury to consider the parole law in assessing appellant's punishment was cured by the trial court's instruction to disregard. Finally, appellant's fourth ground for review was granted to assess the correctness of the court of appeals' holding that appellant's Batson error was not properly preserved.

Appellant, in his first two grounds for review, argues that Article 37.07, § 4(a), V.A.C.C.P., is unconstitutional, first that it violates the separation of powers doctrines of Article II, § 1 of the Texas Constitution and, second, that such a jury instruction denies him due course of law. ¹ In response to these assertions the court of appeals opined:

In his first two points of error, appellant contends that the trial court erred in charging the jury on the law of parole pursuant to article 37.07, section 4(a) of the Texas Code of Criminal Procedure because the instruction violates the separation of powers doctrine and deprived appellant of his right to a fair trial under the state and federal constitutions. This court has previously held that article 37.07, § 4(a), does not violate the separation of powers doctrine, nor does it deprive defendants of a fair trial. Rose v. State, 724 S.W.2d 832, 834-39 (Tex.App.--Dallas 1986, pet. granted); Joslin v. State, 722 S.W.2d 725, 731-36 (Tex.App.--Dallas 1986, pet. granted). Accordingly, we overrule appellant's first two points of error.

In Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987) (Opinion on Rehearing), this Court held that the statute requiring the parole law instruction was violative of both the separation of powers doctrine and due course of law provision of the Texas Constitution. We also decided that if such an instruction was given under Article 37.07, § 4(a), supra, albeit erroneous, a harmless error analysis was required pursuant to Rule 81(b)(2), Tex.R.App.Pro., to determine whether under the circumstances of the case a reversal is required. Thus, appellant is correct in his assertion that the court of appeals erred in its holding that Article 37.07, § 4(a), does not violate the separation of powers doctrine and the appropriate constitutional due course of law provision. Therefore, in accordance with Rose, we will remand this cause to the court of appeals for a harm analysis under Rule 81(b)(2), Tex.R.App.Pro. See also Gilbert v. State, 769 S.W.2d 535 (Tex.Cr.App.1989).

In his third ground for review it is appellant's contention that the court of appeals erred in holding that the trial court's instruction to disregard the prosecutor's argument was sufficient to cure any error or prejudice created by such statements. At the punishment phase of the trial and during final argument the prosecutor made the following argument:

Ladies and gentlemen, I want to call your attention just briefly to Page Four, which is in the Charge, that talks about parole. That means that when someone is given a sentence it is possible that that sentence given by the jury or--when a defendant is given a sentence, it's possible that that sentence given by the judge or the jury can be a fiction under the laws of parole.

The trial court immediately sustained appellant's objection to this argument and instructed the jury to disregard it. Appellant presents the identical argument as that asserted in the court of appeals, that notwithstanding the trial court's curative instruction, reversible error was committed because the prosecutor's comments were so manifestly improper and prejudicial that the trial court should have granted appellant's motion for mistrial. We agree with the court of appeals. We find that although the complained of argument was improper in that it was a call for the jury to consider and apply the parole law to this appellant, it was not of such a nature that the curative instruction did not remedy the error. The trial court's immediate instruction to disregard was sufficient to cure the error. Jackson v. State, 745 S.W.2d 4 (Tex.Cr.App.1988). Ground for review number three is therefore overruled.

In appellant's last ground for review it is his contention that the court of appeals erred in concluding that he had failed to properly preserve a jury selection error based upon Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The...