Payne v. State

BAKER, Justice.

On this remand, the sole remaining issue to be determined is whether the trial court’s submission of the unconstitutional good time and parole instructions to the jury contributed to the punishment the jury assessed the appellant. We hold that the submission of the instructions was harmless beyond a reasonable doubt. We affirm the trial court’s judgment.

Appellant was originally convicted of murder and assessed a life sentence. On *586his appeal to this Court, he contended that the trial court erred in submitting good time and parole instructions to the jury on the grounds that the charge was predicated upon an unconstitutional statute. In an unpublished opinion, we rejected his challenge to the constitutionality of article 37.-07, section 4, of the Texas Code of Criminal Procedure. Payne v. State, No. 05-85-01244-CR (Tex.App.—Dallas, Dec. 9, 1986).

In his petition for discretionary review, appellant asserted two grounds of review, one of which was the constitutionality of article 37.07, section 4 of the Texas Code of Criminal Procedure. The Court of Criminal Appeals granted his petition on the constitutional issue only and agreed with his contention that the statute in question is unconstitutional. The court based this conclusion on its prior decision in Rose v. State, 752 S.W.2d 529 (Tex.Crim.App.1988). That court remanded this cause to this Court to conduct a harmless error analysis under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. See Rose, 752 S.W.2d at 554; Haynie v. State, 751 S.W.2d 878, 879 (Tex.Crim.App.1988).

Rule 81(b)(2) of the Texas Rules of Appellate Procedure provides the general harmless error test to be applied by appellate courts in criminal cases and states:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt-that the error made no contribution to the conviction or to the punishment.

TEX.R.APP.P. 81(b)(2). This standard requires a review of the entire record.

Appellant was convicted of murder. Because the charge was enhanced by a prior conviction for burglary of a building, the range of punishment was fifteen years minimum to a maximum of life or ninety-nine years with the possibility of a fine up to $10,000. The jury assessed a life sentence.

The voir dire of the prospective jurors was not transcribed. The evidence during the guilt/innocence phase of the trial reflected that appellant shot the brother of a person who had stabbed appellant’s aunt to death. Appellant shot the intoxicated, sleeping, crippled man three times at close range. Prior to the shooting, appellant had threatened another not to reveal that he was going to Mil the victim. Appellant also told other persons that he was going to Mil the victim.

During the punishment phase of the trial, in addition to the evidence of the enhancement paragraph of appellant’s indictment, the State introduced his prior record including three misdemeanor convictions for theft under $200.00, assault, and disorderly conduct. The trial court charged the jury on a deadly weapon finding in addition to the statutory good time and parole charges mandated by article 37.07 of the Texas Code of Criminal Procedure. No additional mitigating charge on good time and parole was requested or submitted to the jury. See Rose, 752 S.W.2d at 554.

During jury argument at the close of the punishment phase, neither State or defense counsel mentioned the parole instructions. The State argued the facts of the offense itself, appellant’s prior record, and requested a life sentence. Appellant’s counsel asked the jurors to consider the full range of punishment. During its deliberations, the jury sent a note which stated, “What is the earliest possible parole on a life sentence?” The trial court responded to the note by admonishing the jury to follow the instructions in the charge. Although the jury’s note showed they were considering the parole instructions included in the charge, it does not necessarily follow that such consideration contributed to appellant’s punishment in this case. The jury found appellant used a deadly weapon, found the enhancement paragraph true, and assessed the maximum of life.

Based upon the calculated, cold-blooded execution of a crippled, intoxicated, and sleeping man, together with the deadly weapon finding, and the appellant’s prior convictions (revealing a propensity for violence), we hold that beyond a reasonable doubt the error made no contribution to *587appellant’s punishment. We affirm the trial court’s judgment.

ENOCH, C.J., concurring.

McCLUNG, J., dissenting.