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643 S.W.2d 443

Brass v. State

Court of Appeals of Texas

Decided November 3, 1982

Court of Appeals of Texas · decided 1982-11-03

Key passage — most relied on by later courts

“... While it is considered good practice to enumerate in the court’s charge the probationary conditions which the court may impose if probation is recommended by the jury, the failure to so enumerate the said conditions is not harmful to the accused or restrictive of the court’s authority under the statute.”

quoted by 2 later decisions, including Yarbrough v. State, McNamara v. State

“In this case, the Defendant has filed, before trial, his sworn motion in which he prays that in the event he be convicted, he be granted probation. If you find that the Defendant has not ever been convicted of a felony in this or any other State, and if you assess the punishment of the Defendant at confinement in the penitentiary for a term of not more than 10 years and you recommend that probation be granted in this case, then let your verdict show the punishment which you assess, and show that the Defendant has never before been convicted of a felony in this or any other State, and further show that you recommend that his sentence be suspended and that he be placed on probation. Also, you will show the period of probation which you recommend the Defendant shall serve, which shall be any term of years authorized for the offense for which the [Defendant has been convicted, but in no event for more than 10 years. If you choose to recommend that the Defendant be placed on probation, the Court will set the conditions of probation. You may NOT recommend that part of the period of confinement be served by incarceration and part by probation. Should the punishment assessed by you include a fine, a recommendation of probation should state whether or not the fine be paid, or be suspended and probated. Whether you do or do not recommend probation for the Defendant is a matter that rests within the sound discretion of the jury; however, if your do recommend probation, the Court is requ”

quoted by 1 later decision, including McNamara v. State

Relies on Flores v. State · Kemner v. State · Henderson v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1982-11-03

How this case has been cited

Cited by 10 later decisions — most recently September 2004

10 state decisions

60198219902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

J. CURTISS BROWN, Chief Justice.

¶1 Willie Mayes Brass, appellant, was convicted of murder. The jury assessed punishment at confinement in the Texas Department of Corrections for twenty years. Appeal has been perfected to this Court on a single ground of error.

¶2 Appellant claims reversible error was committed by the trial court in overruling his objection to the portion of the court’s charge to the jury concerning probation. The pertinent portion of the charge is as follows:

The Defendant has filed his sworn motion for probation herein, alleging that he has never before been convicted of a felony in this State or any other State. Our law provides that where a person is charged with an offense and the jury finds him guilty and assesses the punishment at imprisonment for any term of years not more than ten years, or both such fine and imprisonment, and the jury further finds that the Defendant has never been convicted of a felony in this State or in any other State, the jury may cause the imposition of sentence to be suspended and the Defendant to be placed on probation under supervision of the Court during his good behavior. (Emphasis added.)

¶3 Appellant contends the court erred by failing, in response to his objection, to enumerate the statutory terms and conditions which would be imposed if the jury recommended probation. Appellant argues that the charge is “fundamentally misleading” *444 in that it infers the only condition of probation is “good behavior.”

¶4 It does not appear that the Court of Criminal Appeals has decided the specific issue before us. That is, whether a trial court is required to enumerate the specific statutory terms and conditions of probation that may be imposed upon a proper objection to a charge which generally states that probation, if recommended by the jury, will be conditioned on good behavior.

¶5 In Flores v. State, 513 S.W.2d 66, 69 (Tex.Cr.App.1974), it was stated:

While it is considered good practice to enumerate in the court’s charge the probationary conditions which the court may impose if probation is recommended by the jury, the failure to so enumerate the said conditions is not harmful to the accused or restrictive of the court’s authority under the statute.

¶6 We acknowledge, however, that Flores concerned a charge including most of the terms of probation a court is authorized to impose. The holding was that a trial court is not limited to the terms and conditions set out in the charge in deciding those which should actually be imposed. Apparently, no objection to the charge was made. We also note the case of Henderson v. State, 617 S.W.2d 697 (Tex.Cr.App.1981) in which the accused’s complaint on appeal was similar to the one before us, but there was no objection. The Court of Criminal Appeals held there was no fundamental error. See also Kemner v. State, 589 S.W.2d 403 (Tex.Cr.App.1979).

¶7 We are of the opinion that an accused should be entitled to have all of the allowable statutory terms and conditions of probation enumerated in the court’s charge to the jury upon a proper objection or request. Terms and conditions of probation are proper for consideration by the jury in their determination of whether or not to recommend probation. The Court of Criminal Appeals has labeled this a good practice. Therefore, we hold it was error for the trial court to overrule appellant’s proper objection.

¶8 However, the Legislature has enacted Tex.Code Crim.Pro.Ann. art. 36.19 (Vernon 1981), which provides that reversal on appeal for errors in the charge shall not occur unless the record indicates such error was calculated to injure the rights of an accused or if it appears that an accused has not had a fair and impartial trial.

¶9 In the situation before us, the jury assessed punishment at twenty years confinement. This length of time is double that which would be necessary for probation to have been recommended by the jury. Considering the entire record, we hold appellant has not shown that the error of the trial court is reversible error under article 36.19. See O'Neal v. State, 421 S.W.2d 391 (Tex.Cr.App.1967).

¶10 Appellant further argues that the charge is “fundamentally misleading” because it is ambiguous as to whether the fine assessed, if any, would be probated along with the sentence in contravention of interpretations of Tex.Code Crim.Pro.Ann. art. 42.12 (Vernon Supp.1982). We find this argument to be without merit. Finding no reversible error in the charge, appellant’s ground of error is overruled.

¶11 The conviction is affirmed.

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