Jewell v. State, s. 58315-58321

• Decision Date: 29 November 1978
• Docket Number: No. 1,Nos. 58315-58321,s. 58315-58321,1
• Citation: 593 S.W.2d 314
• Parties: Steven Lee JEWELL, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 314

593 S.W.2d 314

Steven Lee JEWELL, Appellant, v. The STATE of Texas, Appellee.

Nos. 58315-58321.

Court of Criminal Appeals of Texas, Panel No. 1.

Nov. 29, 1978.

On Rehearing March 28, 1979.

On Rehearing Feb. 6, 1980.

Emmett Colvin and David L. Botsford, Dallas, for appellant.

Tom O'Connell, Dist. Atty. and Verla Sue Holland, Asst. Dist. Atty., McKinney, Jack M. Pepper and David K. Haynes, Asst. Dist. Attys., McKinney, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from seven felony convictions for delivery of various controlled substances based on a consolidated trial and plea of guilty before the jury. Punishment was assessed as follows: 15 years in our Cause Nos. 58,315, 58,316, 58,317, and 58,318 (delivery of cocaine); 10 years in our Cause Nos. 58,319 and 58,320 (delivery of Tetrahydrocannabinol); and 5 years in our Cause No. 58,321 (delivery of marihuana).

Appellant's first ground of error complains of the trial court's response to the jury's question propounded to the court after it retired to deliberate during the punishment phase of the appellant's trial. The question:

"If prison sentences are given as punishment, are the terms concurrent or each served separately?"

elicited the court's following oral answer:

"I will answer your question, Sir, by simply reading you Article 303 of the Texas Penal Code (sic).

"Our law further provides that 'when the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, sentences for each offense for which he has been found guilty shall be pronounced. Such sentences shall run concurrently.'

"And you are further instructed as the law in this case that you are not to discuss among yourselves how long the defendant will be required to serve these sentences you decide to impose, since as I advised you before, such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas."

The defendant's attorney was advised before delivery of this answer to the jury what the court proposed to do and interposed the following objection:

"Your Honor, we object to the Court's additional instruction of the jury having been charged heretofore, and the submission of Article 303 (sic) to the jury based on the question that has been propounded to the Court.

THE COURT: Of course, you realize that every time this Court answers a jury's question it's an additional charge on the law?

MR. WARDEN (Appellant's trial attorney): Your Honor, I don't feel that the matter that the jury has made inquiry into is properly before the jury. And which action of the Court I will accept (sic) to."

The issue before us upon this ground of error is not one of noncompliance with Article 36.27, V.A.C.C.P., although the court's answer to the jury's inquiry was not in writing as mandated by that provision. We also note that no objection to the Procedure used was interposed. Rather, the issue before us is whether the court's answer to the jury's inquiry, which was erroneous and objected to, constitutes reversible error. The court's instruction was clearly erroneous in light of the express provisions of V.T.C.A., Penal Code, Sec. 3.01, which limits the application of the principles enunciated in Chapter 3 to Title 7 offenses, i. e., offenses against property. The instant prosecutions were pursuant to Article 4476-15, V.A.C.S., the Controlled Substances Act. Appellant is correct in stating that Article 42.08, V.A.C.C.P., is the correct law applicable to appellant's prosecution. ¹ See Morales v. State, Tex.Cr.App., 416 S.W.2d 403; Christopher v. State, Tex.Cr.App., 489 S.W.2d 573; Branson v. State, Tex.Cr.App., 525 S.W.2d 187.

At the outset, we note that Article 36.27, V.A.C.C.P., requires the trial court to "first submit the question and also submit his answer to the same (the jury's question) to the defendant or his counsel or (sic) objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, . . .." We conclude that there is a typographical error in the enrollment of the bill as noted above. Further, when read as intended, the statute clearly implicates the procedures of Article 36.14, V.A.C.C.P., for preserving any error sought to be complained of on appeal. Although appellant's objection is reflected in the transcribed statement of facts, there is nothing in the record on appeal showing the endorsement of appellant's objections with the trial "court's ruling and official signature . . .." Thus, appellant has failed to preserve his error under the terms of Article 36.14, V.A.C.C.P. See Dirck v. State, 579 S.W.2d 198 (1978).

However, this omission does not end our inquiry since appellant has alleged that the error addressed to our attention is fundamental in nature. Fundamental errors in a charge of the court have been defined by the Legislature as those which are "calculated to injure the rights of defendant." See Article 36.19, V.A.C.C.P. In addition, a reversal may yet follow if upon review of the record this Court concludes that the appellant was deprived of a "fair and impartial trial." Id. See also Ashworth v. State, Tex.Cr.App., 418 S.W.2d 668; Peterson v. State, Tex.Cr.App., 508 S.W.2d 844; Smith v. State, Tex.Cr.App., 513 S.W.2d 823; Jefferson v. State, Tex.Cr.App., 487 S.W.2d 331.

In an opinion approved by this Court, Commissioner Keith wrote in Williams v. State, Tex.Cr.App., 508 S.W.2d 83:

". . . error therein (in a court's charge to which no objection was interposed) will be considered as fundamental error 'only in those cases where the erroneous charge goes to the basis of the case and is contrary to and fails to state the law under which the accused is prosecuted.' " Id. at 86.

See also Bellah v. State, 415 S.W.2d 418, 421; Cleaver v. State, 498 S.W.2d 945, 948. It was concluded in Williams, supra, that the trial court's failure to limit the jury's consideration of evidence on extraneous offenses did not constitute fundamental error absent an objection. See also Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491. Although written in reference to the failure of the court's charge to apply the abstract propositions of law to the facts of the cause at the guilt or innocence phase of a trial, this Court's statements concerning the role of the court's charge with respect to a determination whether such an omission was "calculated to injure the rights of defendant" in Williams v. State, 547 S.W.2d 18, are relevant to our decision here.

"However, this confidential character (of jury deliberations) also requires that the members of the jury, before deliberations, receive proper instructions regarding the performance of their civic duty. * * * There should be but one controlling application of the law to the facts, and that application should come from the court. Its absence impairs the right to trial by jury and, therefore, by definition, is 'calculated to injure the rights of defendant' (Art. 36.19, (V.A.C.C.P.)) to a trial by jury.

It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and to prevent confusion." Id. at 20.

Cf. Harris v. State, Tex.Cr.App., 522 S.W.2d 199; Perez v. State, Tex.Cr.App., 537 S.W.2d 455; contrast Mott v. State, Tex.Cr.App., 543 S.W.2d 623.

Applying these principles to the case at bar, we note that the only issue (or "basis of the case") for the jury to deliberate upon was what punishment to assess against appellant. The instruction provided by the court at issue is "contrary to . . . the law." Williams v. State, Tex.Cr.App., 508 S.W.2d 83, 86. Thus, the jury did not receive "proper instructions." Although not a problem of no guidance, the jury was misled by the erroneous instruction involved. Williams v. State, Tex.Cr.App., 547 S.W.2d 18, 20.

By analogy, we draw additional support for our conclusion that the instant instruction was "calculated to injure the rights of defendant" (Article 36.19, V.A.C.C.P.) from those cases arising under Article 40.03, Sections 7 and 8, V.A.C.C.P., relating to the reception of new evidence and jury misconduct. Under those provisions we have held that a misstatement of the parole laws, asserted as fact and which adversely affects the defendant, constitutes reversible error. Scaling v. State, Tex.Cr.App., 499 S.W.2d 318; Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191; Jackson v. State, 157 Tex.Cr.R. 323, 248 S.W.2d 748; Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168; Daniel v. State, Tex.Cr.App., 486 S.W.2d 944; Jones v. State, Tex.Cr.App., 462 S.W.2d 578; Meyers v. State, Tex.Cr.App., 418 S.W.2d 676; cf. Brewer v. State, Tex.Cr.App., 500 S.W.2d 509. Allegations of error under Article 40.03, Sections 7 and 8, V.A.C.C.P., require evidentiary support. However, such a showing is not required here. Compare Article 36.19, V.A.C.C.P. Analysis of the alleged error is based on the complained of instruction and what its perceived effect would be on a jury.

Nevertheless, a misconception has developed in the review of erroneous penalty charges which implies a need to show harm. See Daniels v. State, Tex.Cr.App., 527 S.W.2d 549. A careful review of the authorities relied on in Daniels for the proposition that harm must be shown reflects that this Court concluded that if the error operated to the appellant's benefit, it could not be "calculated to injure the rights of defendant." Article 36.19, V.A.C.C.P. Marks v. State, 144 Tex.Cr.R. 509, 164 S.W.2d 690 (trial court failed to charge on Article 33, V.A.P.C., which would allow jury to double any penalty); Fletcher v. State, 137 Tex.Cr.R. 191, 128 S.W.2d 404 (charge limited punishment range from two to four years; law provided from two to ten years); Christian v. State, 135 Tex.Cr.R. 42, 117 S.W.2d 1094 (same as...