Renner v. State

NYE, Chief Justice,

dissenting.

I respectfully dissent because I do not find that the parole instruction 'made any contribution to the punishment assessed by the jury. Tex.R.App.P. 81(b)(2) provides that if the record in a criminal case reveals error, we shall reverse the judgment, unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

In the instant case, the jury found appellant guilty of aggravated sexual assault of a child and assessed the maximum sentence provided for this crime by our legislature, life imprisonment. In applying the harmless error test of Rule 81(b)(2), I believe that there are several factors which indicate that the error was harmless. First, upon examining the punishment charge, I notice that after the statutory parole instruction was given to the jury, the trial judge also delivered the following curative instructions:

You shall not discuss how long the Defendant will be required to serve the punishment you impose. Such matters come within the exclusive jurisdiction of the Texas Board of Pardons and Paroles.

In giving this instruction, the trial judge warned the jury not to use information concerning parole in assessing appellant’s punishment. The trial judge also told the jury that parole was not their concern. See and compare Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1988). In Rose, the Texas Court of Criminal Appeals determined beyond a reasonable doubt that a parole law instruction made no contribution to a defendant’s conviction or punishment. The Court relied upon the fact that the trial judge gave the jury a curative instruction akin to the one given to the jury in the case before us. This Court must presume that *893the jury followed this instruction. Gamez v. State, 737 S.W.2d 315, 324 (Tex.Crim.App.1987); Barry v. State, 700 S.W.2d 271, 272 (Tex.App.—Corpus Christi 1985, pet. ref’d); see also Tex.R.App.P. 80(d).

Additionally, the nature of the crime and the revolting conduct of appellant most certainly contributed to the jury’s assessment of punishment. In the early morning, appellant entered a residence without consent and went into a bedroom occupied by a sleeping twelve-year-old girl. Appellant got into the child’s bed and began touching her body. The child screamed. Appellant subdued the child by covering her mouth, raising his fist, and threatening to hurt her if she did not obey him. He then touched her sexual organ with his hand and with his sexual organ. At one point, he actually penetrated her sexual organ with his finger and tried to do the same with his sexual organ. The child managed to get out of the bedroom, but appellant continued his attack by chasing her with a rake. He struck her on the head, hard enough for her to lose consciousness. Using the rake and his fist, appellant also struck the child’s mother, sister, and another girl. Before leaving the crime scene, he warned them that he had a knife on his person. He threatened to kill the child and her family if they called the police.

Finally, appellant’s prior criminal record also lends support to the sentence imposed by the jury. A Michigan Department of Corrections probation officer testified during the sentencing phase that appellant had two prior felony convictions. One conviction was for attempted breaking and entering with intent to commit larceny. He served one year in prison for this conviction. The other conviction was for attempted unlawful driving away of an automobile. For this conviction, he was placed on probation. He flagrantly violated his probation by leaving the State of Michigan without permission from his probation officer. He also violated his probation by committing the offense in the case before us.

The presumption that the jury followed the trial judge’s instruction to disregard parole, combined with appellant’s criminal record and the shocking facts of the crime, lead me to conclude that the statutory parole instruction did not affect appellant’s sentence. I find, beyond a reasonable doubt, that the error made no contribution to appellant’s punishment. Tex.R.App.P. 81(b)(2); Rose v. State, 752 S.W.2d at 555. I would affirm the judgment of conviction by the jury and the trial court.