Luquis v. State, 0283-00.

Citation72 S.W.3d 355
Decision Date10 April 2002
Docket NumberNo. 0283-00.,0283-00.
PartiesEdgar LUQUIS, Appellant, v. The STATE of Texas.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Brian Wice, Houston, Debbie S. Holmes, Staff Atty., Huntsville, for Appellant.

Mark Mullin, Special Prosecution Unit, Huntsville, Matthew Paul, State's Atty., Austin, for State.

OPINION

COCHRAN, J., delivered the opinion of the Court., joined by KELLER, P.J., MEYERS, KEASLER, HERVEY, and HOLCOMB, JJ.

Appellant challenges the trial court's submission of the statutorily-required parole law instruction at the punishment stage. Appellant argues that, because he is not eligible for release on mandatory supervision, the trial judge erred in giving the jury the instruction concerning "good conduct time." Moreover, because this portion of the charge does not apply to him, appellant contends that informing the jury about "good conduct time" violated his due process rights. Finally, he asks what harm analysis applies—the standard set out in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984), or Rule 44.2(a) of the Texas Rules of Appellate Procedure concerning constitutional error—in the event giving the instruction on "good conduct time" is erroneous or unconstitutional. We conclude that the parole law charge is not unconstitutional as applied to him, and thus it was not error for the trial court to include this legislatively-mandated instruction in its punishment 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." Appellant described the murder in his written confession:

I'm guilty. I stabbed the man. I was in the 7 AB dayroom around 3:00 or 4:00 p.m. with Xavier Guerrero. We were just talking about home and the world. Pablo Nunez came in and started talking s* * * to me. There was about 15 people in the dayroom looking at me like, Are you going to let him talk to you that way? He had been messing with me for about two weeks. I went to my house which is 7-AB 35 cell and got two shanks. One was a big one and one was a small one. The big one was crooked on one end and the other one was made out of part of a bucket. I gave Xavier the big shank and asked him to help me. Pablo was in the dayroom and did not know we had the shanks. I told Pablo, Let's take care of business. He wanted to go to the second row shower, but the picket boss could see us. We went to 3 Row to the shower and Xavier was following me. Pablo told Xavier to stay out of it and go downstairs. I started swinging and stabbed him in the side. I tried to stab him in the leg, but I had all that hate inside me and I just went crazy. He got away and ran downstairs to the door to get out, and I grabbed him and started stabbing him. Xavier was stabbing him, also. I looked over and the boss told me or motioned for me to get on the floor. We both dropped our shanks and got on the floor. If the door had been open, it would have turned out different than it did.

The medical examiner testified that the victim died of multiple stab wounds, four of which punctured his left lung. Several prison guards testified that they viewed, through the plexiglass dayroom door, much of the stabbing, which occurred just four to five feet from them. However, they could not enter the locked dayroom, or let the wounded inmate out, until security back-up arrived. By that time the victim was dead, and appellant, smiling at the officers, threw the shank away and finally obeyed the commands to lie down.

At the punishment phase, the State offered evidence of appellant's four prior burglary of a habitation convictions, for which he had been sentenced to thirty years imprisonment. The defense called no witnesses at either stage of the trial.

During the punishment charge conference, appellant's counsel objected to the inclusion of the statutorily-required parole law instruction,2 and submitted a proposed alternative instruction.3 The trial judge rejected appellant's proposed instruction and gave the statutorily-required parole instruction.

Appellant referenced the parole charge during punishment closing arguments, stating:

The parole instruction in the jury charge says the person doesn't become eligible for parole until they've served half, 50 percent, or 30 years, whichever is less. 30 years is a long, long time in anybody's life. I'm asking for you to show mercy because you can because he has a 30-year sentence already and any sentence you give him today, he will not begin to serve until his 30-year sentence ceases to operate.

The State, in return, requested a life sentence and obliquely referred to the parole charge by saying: "I'm not asking you to give Edgar Luquis 30 years. That was in response to the part of the charge that says he'll have to serve half or thirty years, whichever is less." The jury returned a life sentence after deliberating slightly more than one hour.

The Beaumont Court of Appeals rejected appellant's claims that: 1) the trial court erred in giving the statutorily required parole instruction because it included language concerning good conduct time although good conduct time would not count toward appellant's parole eligibility date; and 2) the trial court erred in denying appellant's request that the jury charge include a definition and description of parole. Luquis, 997 S.W.2d at 444. We granted appellant's five grounds for review.

II.

The statutory parole charge instructs a jury in very general terms about the existence and possible grant of parole. It explicitly informs the jury that persons such as appellant are ineligible for release on parole until they have served one-half of their sentence or thirty years, whichever is less. The instruction also refers to the concept of "good conduct time" and states that a person sentenced to prison might earn some reduction in his period of incarceration (though not a reduction of his sentence) through the discretionary award of good conduct time.4 The final two paragraphs of the instruction clearly warn the jury that neither they, nor anyone else, can accurately predict how the concepts of "good conduct time" or parole might be applied to any particular person and thus they may not consider how those concepts might apply to the defendant. Thus, the over-all purpose of the instruction is to inform jurors of these concepts as a general proposition, but to prohibit the jury from using its notions of parole or "good conduct time" in any calculus in assessing the appropriate punishment.

Historically, Texas courts held that it would violate the separation of powers clause for a jury to consider when the Board of Pardons and Paroles might release an inmate on parole because it would constitute a judicial encroachment upon an executive function.5 Nonetheless, in 1985, the Legislature added Section 4 to Article 37.07,6 which required trial courts to instruct juries in non-capital felony trials about the law of parole generally. Two years later, this Court declared that legislative enactment unconstitutional because it violated the separation of powers and due course of law doctrines.7

In 1989, presumably in reaction to this Court's decision in Rose v. State, Texas citizens voted to amend Article IV, Section 11(a) of the Texas Constitution to provide:

The Legislature shall by the law establish a Board of Pardons and Paroles and shall require it to keep record of its actions and the reasons for its actions. The Legislature shall have authority to enact parole laws and laws that require or permit courts to inform juries about the effect of good conduct time and eligibility for parole or mandatory supervision on the period of incarceration served by a defendant convicted of a criminal offense.8

This amendment explicitly authorized the Texas Legislature to enact statutory language to fulfill its mandate,9 and the Legislature re-enacted article 37.07, section 4(a) in 1989. This Court determined that the re-enacted statute did not violate a defendant's due course of law rights under the Texas Constitution,10 while in other cases, this Court determined that article 37.07, section 4(a)'s parole instruction did not violate the federal constitution's due process clause.11

When the Legislature first enacted article 37.07, section 4(a) in 1985, the parole law and "good conduct time" instruction was both legally accurate and applicable to inmates such as appellant.12 At that time, all non-capital felony convicts, except those whose convictions contained a deadly weapon finding, were eligible for release on mandatory supervision.13

In 1987, however, even before it re-enacted the parole law instruction, the Texas Legislature revised the mandatory supervision law14 to make release on mandatory supervision unavailable to offenders who, like appellant, have been convicted of murder or other designated first or second degree felonies.15 Thus, appellant is not eligible for release on mandatory supervision, regardless of how much good time he might accrue, nor does his "good conduct time" make him eligible for parole any sooner than he would be without "good conduct time" credits. His parole eligibility is set at the lesser of one-half of his actual sentence or thirty years. Period. The Legislature has not, in the past fourteen years, amended article 37.07, section 4(a) to reflect these changes in the mandatory supervision law. Thus, the portions of the parole law instruction discussing "good conduct time" now only marginally apply to one in appellant's position.16

III.

Appellant's core complaint is that the parole law instruction language concerning "good conduct time" is misleading and erroneous as applied to him and to those similarly situated because he is not, in fact, eligible for release on mandatory supervision. Appellant does not explain how a jury will...

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