Torres v. State

• Decision Date: 27 January 1987
• Docket Number: No. 07-85-0257-CR,07-85-0257-CR
• Parties: Lazaro Guanes TORRES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 380

725 S.W.2d 380

Lazaro Guanes TORRES, Appellant, v. The STATE of Texas, Appellee.

No. 07-85-0257-CR.

Court of Appeals of Texas Amarillo.

Jan. 27, 1987.

Discretionary Review Granted April 15, 1987.

Pamela C. Oglesby, Amarillo, for appellant.

Rebecca Baker, Amarillo, for appellee.

Before DODSON, COUNTISS and BOYD, JJ.

COUNTISS, Justice.

Appellant was convicted of voluntary manslaughter under an enhanced indictment, Tex.Penal Code Ann. § 19.04(a) (Vernon 1974), and sentenced to serve 99 years in the Texas Department of Corrections and pay a $10,000 fine. He attacks the judgment of conviction by two grounds of error, contending (1) the trial court's parole law instruction to the jury was unconstitutional, and (2) the prosecutor improperly commented to the jury on appellant's failure to testify. We affirm.

By his first ground, appellant contends the parole law instruction mandated by Tex.Code Crim.Proc.Ann. art. 37.07, § 4 (Vernon Supp.1986) ¹ improperly places the matter of parole before the jury, violates his due process rights under the Texas and U.S. Constitutions and violates his right under the eighth amendment to the U.S. Constitution to be free from cruel and unusual punishment. We will resolve each contention in the order stated.

The Court of Criminal Appeals has consistently condemned jury discussion of parole eligibility. See, e.g., Price v. State, 150 Tex.Crim. 161, 199 S.W.2d 168, 171 (1947); Pena v. State, 137 Tex.Crim. 311, 129 S.W.2d 667, 669 (1939); Clark v. State, 76 Tex.Crim. 348, 174 S.W. 354, 356-57 (1915). ² The Court has, however, permitted the trial judge to instruct the jury not to consider or discuss any possible actions of the Board of Pardons and Paroles or of the Governor or how long a defendant would be required to serve in order to satisfy his sentence. Williams v. State, 668 S.W.2d 692, 701 (Tex.Crim.App.1983); Freeman v. State, 556 S.W.2d 287, 304 (Tex.Crim.App.1977); Speights v. State, 499 S.W.2d 119, 122 (Tex.Crim.App.1973); Harris v. State, 457 S.W.2d 903, 914 (Tex.Crim.App.1970), rev'd on other grounds, 403 U.S. 947, 91 S.Ct. 2291, 29 L.Ed.2d 859 (1971). Recently, in Sneed v. State, 670 S.W.2d 262, 264-66 (Tex.Crim.App.1984), the Court made it clear that any error in jury discussion of the parole laws is grounded on a violation of §§ 7 and 8 of article 40.03 of the Code of Criminal Procedure. ³

Thus, our initial inquiry is whether the legislative mandate in section 4 of article 37.07, to instruct the jury on parole eligibility can be permitted in contravention of the foregoing authorities. In resolving that question, we must follow certain well established principles. The Code Construction Act provides that a statute is presumed to be in compliance with state and federal constitutions. Tex.Gov't Code, § 311.021 (Vernon Pamph.1986). It further states that "if statutes enacted at the same or different sessions of the legislature are irreconcilable, the statute latest in date of enactment prevails." Id. § 311.025. The Code Construction Act is pertinent to "each amendment ... of a code or code provision by the 60th or a subsequent legislature." Id. § 311.002(2). And it is applicable to the Code of Criminal Procedure. Barbee v. State, 432 S.W.2d 78, 82 (Tex.Crim.App.1968), cert. denied, 395 U.S. 924, 89 S.Ct. 1779, 23 L.Ed.2d 241 (1969); Ceaser v. State, 624 S.W.2d 669, 671 (Tex.App.--Beaumont 1981, no pet.). The courts are bound to ascertain the legislative intent from the language of the statute. Faulk v. State, 608 S.W.2d 625, 631 (Tex.Crim.App.1980); Newsom v. State, 372 S.W.2d 681, 683 (Tex.Crim.App.1963).

By enacting section 4 of article 37.07, the legislature has evidenced its intention to override common law decisions and statutory provisions that prohibit instructions to the jury on the parole laws. Unless there is a constitutional bar to such an instruction (and we conclude in subsequent paragraphs of this opinion that there is not) the legislature clearly has the right to direct such an instruction. Thus, prior decisions of the Court of Criminal Appeals, and §§ 7 and 8 of article 40.03 of the Code of Criminal Procedure, must be subordinate to the new statute. We conclude, therefore, that it is no longer improper to instruct a jury on the parole laws in the manner directed by section 4 of article 37.07.

We next consider appellant's due process attack on the instruction. In Clark v. Lockhart, 512 F.2d 235 (8th Cir.) cert. denied, 423 U.S. 872, 96 S.Ct. 139, 46 L.Ed.2d 103 (1975), an Arkansas prisoner sought habeas corpus relief, contending an instruction regarding parole eligibility was a violation of the due process clause of the fourteenth amendment. In that case, the trial judge instructed the jury on the rules concerning good time credits and parole eligibility under a sentence for a definite term of years. Later, upon questioning from the foreman and another juror, the judge orally informed the jury that there was no provision for parole on a life sentence. He additionally informed them that only the governor could commute a life sentence to a definite term of years, thereby making the accused parole eligible. The prisoner received a seventy-five year sentence for rape. On appeal the Arkansas Supreme Court ruled that such instructions were prejudicial but limited its ruling to prospective operation. Under the circumstances, the Eighth Circuit concluded, the instructions did not deny the accused fundamental fairness nor due process of law. Id. at 237.

We reach the same conclusion here. The instructions are accurate and we find nothing in this record to indicate that they deny appellant fundamental fairness or due process, under either the United States or Texas Constitutions. Accord : Clark v. State, 721 S.W.2d 424 (Tex.App.--Houston [1st Dist.] 1986, pet. pending); California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).

Our final inquiry is whether the instruction violates the eighth amendment to the U.S. Constitution, which prohibits cruel and unusual punishment. Appellant contends the only purpose of the instruction is to increase the amount of punishment a jury assesses. ⁴

Initially, we observe that the eighth amendment is not violated because a state reaches a conclusion different from the majority of other jurisdictions over how to administer its criminal laws. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3165, 82 L.Ed.2d 340 (1984). The amendment has been interpreted in a flexible manner, but it is primarily concerned with prohibiting torture and other barbarous methods of punishment. The eighth amendment also prohibits punishments that involve wanton and unnecessary infliction of pain or are grossly disproportionate to the severity of the crime. Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2398, 69 L.Ed.2d 59 (1981). Additionally, the amendment imposes a substantive limit on what can be made and punished as a crime. See Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). There is no static test for deciding whether the amendment is violated, Rhodes v. Chapman, 452 U.S. at 346, 101 S.Ct. at 2398; Gregg v. Georgia, 428 U.S. 153, 172-3, 96 S.Ct. 2909, 2924-25, 49 L.Ed.2d 859 (1976), but in construing the amendment, the Supreme Court has concluded that procedures and penalties more severe than the instruction in question are constitutional. Spaziano v. Florida, supra; Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Consequently, we find no authority or rationale which would compel us to find an eighth amendment violation. Ground of error one is overruled.

By his second ground of error, appellant contends the prosecutor commented, during the punishment argument, on appellant's failure to testify at the punishment phase as follows:

The amount of justice that he has learned is that you can get away with it, because they ain't going to punish you; and that's what that man thinks, and that's what his acts have shown.

Appellant immediately objected that the argument was a comment on his failure to testify and the trial court overruled this objection.

A prosecutor's comment on an accused's failure to testify offends the federal constitution, the state constitution and article 38.08 of the Code of Criminal Procedure, unless the accused testifies at his trial. However, when the accused takes the stand as a witness, he waives his right to remain silent and is subject to the same rules as other witnesses. Bridges v. State, 624 S.W.2d 718, 719 (Tex.App.--Houston [14th Dist.] 1981, pet. ref'd), cert. denied, 456 U.S. 1010, 102 S.Ct. 2304, 73 L.Ed.2d 1306 (1982). See Paster v. State, 701 S.W.2d 843, 849 (Tex.Crim.App.1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348; Simpkins v. State, 590 S.W.2d 129, 136 (Tex.Crim.App.1979).

In this case, appellant testified during the guilt or innocence phase of the trial. Consequently, the prosecutor's argument, although made at the punishment stage, must be tested by the same rules that are applied to argument derived from the testimony of other witnesses.

It is axiomatic that the approved areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement. Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App.1980). However, argument outside these areas will not constitute reversible error unless, in examining the record as a whole, the court can conclude that the argument is extreme or manifestly improper, violative of a statute, or injects new facts harmful to the defendant. Id. at 297. We also note that in assessing punishment the jury may consider all the evidence adduced at trial on guilt or innocence. Duffy v. State, 567 S.W.2d 197, 208 (Tex.Crim.Ap...