Luquis v. State
Citation | 997 S.W.2d 442 |
Parties | (Tex.App.-Beaumont 1999) EDGAR LUQUIS, Appellant v. THE STATE OF TEXAS, Appellee NO. 09-98-535 CR |
Decision Date | 31 August 1999 |
Court | Court of Appeals of Texas |
On Appeal from the 411th District Court Polk County, Texas, Trial Cause No. 14,444
Before Walker, C.J., Burgess and Stover, JJ.
A jury convicted Edgar Luquis of murder and assessed punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division. The two issues presented for review concern the parole law instruction included in the jury charge on punishment.
Issue one asks, "Did the trial court err in overruling appellant's objection to the portion of the jury charge which described the effect of good time credit on the amount of time to be served, when appellant is not eligible to have good time credit counted toward his parole eligibility date?"
The charge contained the statutorily required parole law instruction. See TEX. CODE CRIM. PROC. ANN. art. 37.07, 4(a) (Vernon Supp. 1999). The Texas Constitution expressly authorized the Legislature to enact this law. TEX. CONST. art. IV, 11(a). The Court of Criminal Appeals upheld the constitutionality of the parole instruction. Oakley v. State, 830 S.W.2d 107 (Tex. Crim. App. 1992) ( ); Muhammad v. State, 830 S.W.2d 953, 956 (Tex. Crim. App. 1992) (federal due process).
Luquis relies upon Jimenez v. State, 992 S.W.2d 633 (Tex. App.--Houston [1st Dist.] 1999, pet. filed), which held article 37.07, 4(a) to be unconstitutional as applied to a defendant convicted of aggravated assault. We disagree with Jimenez. First, we note that, although Jimenez states that "the court of criminal appeals has never specifically ruled on the issue of the constitutionality of the article 37.07 charge relating to good-conduct time where the defendant is not eligible for good-conduct time," both Oakley and Muhammad involved convictions for aggravated robbery, which is an offense listed in Section 508.149 of the Government Code. Id. at 637; see TEX. GOV'T CODE ANN. art. 508.149 (a)(11) (Vernon 1998). Second, Jimenez holds that the article 37.07 charge is "incorrect for those offenses enumerated in section 508.149 of the Texas Government Code that preclude the accumulation of good-conduct time to qualify a convict for early release under mandatory supervision." Id. The Article 37.07 instruction is the "law applicable to the case" because the Legislature passed a statute which required it be given in the punishment phase of a jury trial for the particular offense for which the defendant is being tried. It could not be charge error for the trial court to include the statutorily mandated instruction. Nevertheless, Jimenez analyzes the issue as charge error under Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (opinion on rehearing). If the statute is unconstitutional as applied to the appellant, the error would be one of constitutional dimension. Rose v. State, 752 S.W.2d 529, 553 (Tex. Crim. App. 1987)(opinion on rehearing).
We agree with the rationale and holding of the Austin Court of Appeals in Martinez v. State, 969 S.W.2d 497, 500-01 (Tex. App.--Austin 1998, no pet.), which noted the charge does not mention "mandatory supervision," only mentions "good conduct...
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Luquis v. State
...charge.1 Therefore, we affirm the decision of the Ninth Court of Appeals, which had rejected these same contentions. Luquis v. State, 997 S.W.2d 442 (Tex.App.-Beaumont 1999). I. Appellant was convicted of murdering a fellow prison inmate by repeatedly stabbing him with a steel rod or "shank......
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Jimenez v. State
...the other courts, see Edwards v. State, 10 S.W.3d 699 (Tex. App. -- Houston [14th Dist.] 1999, pet. filed); Luquis v. State, 997 S.W.2d 442 (Tex. App. -- Beaumont 1999, pet. filed); Boston v. State, 965 S.W.2d 546 (Tex. App. -- Houston [14th Dist.] 1997, no pet.); Martinez v. State, 969 S.W......
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Bradley v State
...pet. filed); Edwards v. State, 10 S.W.3d 699, 705 (Tex. App.--Houston [14th Dist.] 1999, pet. granted); Luquis v. State, 997 S.W.2d 442, 443-44 (Tex. App.--Beaumont 1999, pet. granted); Hyde v. State, 970 S.W.2d 81, 89-90 (Tex. App.--Austin 1998, pet. ref'd); Martinez v. State, 969 S.W.2d 4......
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Felan v. State
...pet. filed); Edwards v. State, 10 S.W.3d 699, 702-03 (Tex.App.-Houston [14th Dist.] 1999, pet. granted); Luquis v. State, 997 S.W.2d 442, 443-44 (Tex.App.-Beaumont 1999, pet. granted); Martinez v. State 969 S.W.2d 497, 499-501 (Tex.App.-Austin 1998, no pet.); Garcia v. State, 911 S.W.2d 866......