Martinez v. State

• Decision Date: 07 May 1998
• Citation: 969 S.W.2d 497
• Parties: Steven MARTINEZ, Appellant, v. The STATE of Texas, Appellee. NO. 03-96-00732-CR.
• Court: Texas Court of Appeals

Page 497

969 S.W.2d 497

Steven MARTINEZ, Appellant, v. The STATE of Texas, Appellee.

NO. 03-96-00732-CR.

Court of Appeals of Texas,

Austin.

May 7, 1998.

P. David Wahlberg, Bender & Wahlberg, P.C., Austin, for Appellant.

Ronald Earle, District Attorney, Philip A. Nelson, Jr., Assistant District Attorney, Austin, for Appellee.

Before JONES, KIDD and DALLY, ^* JJ.

KIDD, Justice.

Appellant Steven Martinez was convicted of aggravated robbery and the jury assessed his punishment at ninety-eight years' confinement. Tex. Penal Code Ann. § 29.03(a)(1),(2) (West 1994). He contends that the parole law instruction is misleading and therefore unconstitutional. We will affirm the conviction.

Background

Appellant does not claim either legal or factual insufficiency of the evidence, thus no extensive review of the facts of the case is necessary. To put the case in context, and because we will consider the facts of the offense in a harm analysis, we note that the record shows that after appellant and two juveniles entered a pawn shop in Austin, appellant leapt over the counter and began stabbing the clerk. She fell and heard appellant say he was taking the money, and saw him approach the store manager. Appellant stabbed the manager in the chest several times. While another robber broke open the gun case and began taking guns, appellant grabbed the money from the cash drawer. Appellant then told his fellow robbers that they were not going to leave anyone "to remember anything." He stabbed the clerk three or four more times as she lay on the floor, leaving her with a total of ten stab wounds in the chest. He demanded the security videotape from the manager, who pointed him to a fake video which appellant took, then he stabbed the manager about seven more times, leaving him with about eleven wounds. Both the manager and clerk survived.

The real security videotape recorded the event and appellant's acts. Appellant, thirty years old at the time of the offense, was the initiator of the robbery. His accomplices were his sixteen-year-old nephew and the nephew's friend of the same age. He got the juveniles drunk on beer and then proposed that they do a robbery. Appellant gave his nephew a pistol to use, and the other juvenile and appellant had knives. Appellant drove them to the pawn shop in his car.

The Controversy

In two points of error, appellant contends that the trial court erred by giving the required instruction on parole and good conduct time in the court's charge on punishment. See Tex.Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp.1998). Appellant contends that giving this instruction violated his right to due course of law. Tex. Const. art. I, §§ 10, 13, 19; Tex.Code Crim. Proc. Ann. arts. 1.04 (West 1977) & 39.19 (West 1981). He argues in his second point of error that giving this instruction also violated his right to due process of law guaranteed by the Fourteenth Amendment to the Constitution of the United States and his right to a jury trial as guaranteed by the Sixth Amendment. Appellant's objection at trial did not specify these constitutional and statutory provisions as the basis for his objection; he simply objected to portions of the court's charge mentioning good conduct time. His argument was that because of the nature of his offense, he is not eligible for release on mandatory supervision and therefore any mention of good conduct time makes the instruction misleading to the jury by implying that he may be able to earn time off his sentence through good conduct time. ¹ We will consider appellant's objection at trial that the charge was "misleading" as a sufficient invocation of a violation of due course of law under the Texas Constitution in his first point, and a complaint of violation of due process under the United States Constitution in his second. We need not consider his Sixth Amendment claim. Appellant did not make a sufficiently specific reference to the Sixth Amendment of the United States Constitution to preserve any issue based on that Amendment. See Tex.R.App. P. 33.1(a)(1)(A). In addition, another issue would make the second point multifarious. See Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App.1996) (combining due process and ineffective assistance of counsel claims is multifarious); Rainey v. State, 949 S.W.2d 537, 542 n. 1 (Tex.App.--Austin 1997, pet. ref'd) (combining state and federal points is multifarious).

Appellant contends that the parole law instruction misstates the law and was misleading to the jury. The instruction given by the trial court in its charge on punishment was as follows:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See Tex.Code Crim. Proc. Ann. art. 37.07, § 4(a) (West Supp.1998) (emphasis added).

Giving this instruction is mandatory. Id.; see Cormier v. State, 955 S.W.2d 161, 164 (Tex.App.--Austin 1997, no pet.). A predecessor of this instruction was held unconstitutional in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1987). The court held that it violated the separation of powers provision in article II, section 1, and the due course of law provisions in article I, sections 13 and 19 of the Texas Constitution. Rose, 752 S.W.2d at 552-53 n. 2. In response to this holding, the legislature submitted a constitutional amendment, which was approved by Texas voters on November 7, 1989, to authorize giving jurors this type of information. The constitution now provides:

The Legislature shall by the law establish a Board of Pardons and Paroles and shall require it to keep records 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.

Tex. Const. art. IV, § 11(a) (emphasis indicates portion added by constitutional amendment).

The parole instruction was upheld against a due course of law challenge in a case tried after reenactment of the statute pursuant to the constitutional amendment. Oakley v. State, 830 S.W.2d 107 (Tex.Crim.App.1992). The court held that the constitutional amendment removed the Texas Constitution due course of law constraints that plagued the former article 37.07, section 4. Id. at 111. The court also held that the separation of powers problem was corrected by the amendment. In a companion case, the court held that the parole instruction does not violate federal due process. Muhammad v. State, 830 S.W.2d 953, 956 (Tex.Crim.App.1992). The instruction in the instant case is the same as the one upheld in Oakley and Muhammad except for changes made in 1993 to reflect the increase in the number of years and portion of sentence required to be served before parole eligibility. See Act of June 19, 1993, 73d Leg., R.S., ch. 900, § 5.02, 1993 Tex. Gen. Laws 3586, 3743-44.

Appellant argued at trial that the instruction was misleading because the "charge deals with the inmate's release to mandatory supervision...." The instruction does not mention the term mandatory supervision nor does it deal with that program. As the State's brief points out, it is not reasonable to assume a jury will be misled regarding a subject of which it is not aware. Appellant also argued that the instruction is "misleading to the jury in implying that he may be able to earn time off his sentence through the award of good conduct time," whereas he is not eligible for good conduct time to shorten his sentence because of the nature of the offense he committed and because he exhibited and used a deadly weapon while committing it. The instruction only mentions the term "good conduct time" generally and as a possibility, not a certainty. The Court of Criminal Appeals has said: "The inclusion of the parole instruction under Article 37.07, Section 4, simply informs the jury that good conduct time and parole exist, and admonishes the jury that it may not consider the manner in which the parole law may be applied to the defendant." French v. State, 830 S.W.2d 607, 608 (Tex.Crim.App.1992). The State suggests the "basic thought conveyed by this paragraph is to the effect that if you're good, you may get out earlier than if you're bad." The jury was told that the defendant will not...