Rose v. State

• Decision Date: 01 December 1986
• Docket Number: No. 05-85-01136-CR,05-85-01136-CR
• Citation: Rose v. State, 724 S.W.2d 832 (Tex. App. 1986)
• Parties: Vernon Lee ROSE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 832

724 S.W.2d 832

Vernon Lee ROSE, Appellant, v. The STATE of Texas, Appellee.

No. 05-85-01136-CR.

Court of Appeals of Texas Dallas.

Dec. 1, 1986.

Rehearing Denied Jan. 7, 1987.

Kerry P. Fitzgerald, Dallas, for appellant.

John Nation, Dallas, for appellee.

Before the court en banc.

ON MOTION FOR REHEARING

STEWART, Justice.

Appellant was convicted of aggravated robbery, and the jury assessed punishment at confinement for life in the Texas Department of Corrections. He contends in two points of error that the trial court committed reversible error by: (1) admitting evidence of extraneous offenses occurring at the time of appellant's arrest; and (2) charging the jury on the law of parole pursuant to Code of Criminal Procedure article 37.07, section 4(a), because this instruction violates the separation of powers doctrine and the due process clauses of the State and Federal Constitutions. We disagree with both contentions; accordingly, we affirm.

The sufficiency of the evidence is not disputed. It shows that on the afternoon of October 17, 1984, appellant and two other men entered complainant's textile company in Dallas, robbed him at gunpoint, and left him tied up on the floor. Appellant took complainant's pistol and approximately $160 in cash. Shortly before noon, eight days later, Officer Reno was at an apartment complex in Ennis when he saw a goldish-yellow Pontiac Sunbird that the police were seeking. He observed appellant and his companion, George Fitch, Jr., get out of the car and walk toward the apartments. He approached the two men and asked them to show their identification. As Reno began his questioning, Officer Shoquist arrived and discovered that appellant had a concealed handgun later identified as the pistol stolen in the Dallas robbery. Reno then drew his revolver on Fitch, removed a pistol Fitch was carrying in the waistband of his trousers, and placed Fitch on the ground without handcuffs. Reno then turned to aid Shoquist who was struggling with appellant for the latter's pistol. As appellant and the two officers struggled, Reno lost possession of Fitch's pistol, and Fitch recovered it. Fitch shot and wounded Reno. During the ensuing confusion, appellant escaped in a squad car; he was caught after a high speed chase, which ended when appellant crashed into a concrete median marker.

I. EXTRANEOUS OFFENSES

Appellant's first point of error complains of the trial court's admission of evidence that he assaulted the police officers at the time of his arrest. He contends that these extraneous offenses are irrelevant to any material issue in the case at bar and also that the inflammatory and prejudicial potential of this evidence clearly outweighs any relevancy value that the evidence may have had. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). We disagree. The State is entitled to prove the circumstances surrounding a defendant's arrest, unless such evidence is "inherently prejudicial and has no relevance to any issue in the case." Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim.App.1985). The issue on appeal is whether the trial judge clearly abused his discretion in admitting the evidence. Hernandez v. State, 484 S.W.2d 754 (Tex.Crim.App.1972).

Appellant's possession of the stolen pistol at the time of his arrest connects him to the aggravated robbery under prosecution. In addition, evidence of appellant's escape from custody and flight to avoid arrest is admissible to prove his guilt of the offense charged. Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App.1982). We conclude that appellant's assault on the police officers was part and parcel of appellant's flight. Consequently, we hold that the trial court did not abuse its discretion by admitting into evidence proof that appellant assaulted two police officers. We overrule appellant's first ground of error.

II. CONSTITUTIONALITY OF PAROLE LAW CHARGE

Having overruled appellant's first point of error, we must address the constitutional issue he raises. Appellant contends in his second point of error that Texas Code of Criminal Procedure article 37.07, section 4(a), requiring special jury instructions explaining state parole laws, is unconstitutional because it violates the separation of powers doctrine and the due process clauses of the United States and Texas Constitutions. Appellant also urges that the instructions required by this statute are in irreconcilable conflict with one another.

Appellant concedes that he failed to object to the trial court's parole law and good conduct time instructions; consequently, he necessarily contends that giving these instructions to the jury at the punishment phase constitutes fundamental error. Fundamental error in the court's charge is error so egregiously harmful that it deprives defendant of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (On State's Motion for Rehearing). Because a contention of fundamental error incorporates a defendant's due process rights as guaranteed by article I, section 19, of the Texas Constitution, article 1.04 of the Texas Code of Criminal Procedure, and the Fourteenth Amendment to the United States Constitution, appellant's fundamental error and due process arguments will be treated together.

With respect to the separation of powers argument, it is clear that this statute and these instructions potentially offend only the governmental powers of the State of Texas. Therefore, we overrule appellant's contention that the instructions violate the separation of powers doctrine of the United States Constitution.

At the 1985 session of the Texas Legislature, article 37.07, section 4, was enacted, to become effective on September 1, 1985. This provision requires the trial court to submit certain instructions regarding good conduct time and parole eligibility to the jury at the punishment phase of trial. The instructions included in the charge to the jury at punishment in this case read as follows:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the sentence 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-third of the sentence imposed or 20 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 six 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.

TEX.CODE CRIM.PROC.ANN. art. 37.07, § 4(a) (Vernon Supp.1986). Appellant contends that these instructions are unconstitutional because (1) they violate the separation of powers doctrine by (a) authorizing the jury to interfere with the clemency powers of the executive branch of government and (b) authorizing the jury to review the statutory range of punishment and, acting legislatively, to adjust the range in its discretion; and (2) they violate the due process clause because (a) they deny him a fair and impartial trial by jury and (b) they deny him due process of law.

In determining the constitutionality of a statute, we begin with the presumption that the statute is constitutional. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979). Courts should seek an interpretation that supports the constitutionality of legislation. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Faulk v. State, 608 S.W.2d 625, 630 (Tex.Crim.App.1980). Before a court can set aside a statute, its validity must clearly be unsupported by a reasonable intendment or allowable presumption. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978). Courts should not assume that the legislature would intend an unreasonable result if the statute is capable of a construction that would prevent such a result. Wade v. State, 572 S.W.2d 533, 535 (Tex.Crim.App.1978). Courts will not declare an act unconstitutional unless it is clearly made to appear in its enactment that the legislature has exceeded its powers. Lyle v. State, 80 Tex.Cr. 606, 193 S.W. 680 (1917).

With these principles in mind, we address the separation of powers issue under the Texas Constitution. Article II, section 1, of the Texas Constitution provides for the separation of governmental powers among the three distinct departments--the executive, judicial and legislative. It further provides that no branch is to exercise any power properly delegated to another branch. Ex parte Giles, 502 S.W.2d 774, 780 (Tex.Crim.App.1973). Appellant relies on article IV, section 11, of the Texas Constitution to support his position that parole is a component of the clemency powers vested in the executive branch of government and,...