Arnold v. State

¶1dissenting.

¶2We granted review of the decision in Arnold v. State, 686 S.W.2d 291, at 293 (Tex.App.—Houston [14th] 1985), to examine propriety of reasons given for overruling the second ground of error. The opinion of this Court mentions them at pages 1-2, but does not directly address those reasons, so I shall.

¶3In finding that an objection to the charge on punishment was premature and thereby overruling the second ground of error, id., at 293, the Court of Appeals blinks reality of what occurred under the aegis of the trial court.

¶4The fact of the matter is that at the request of the State supplemented by a suggestion from appellant the trial court included in its charge on the issue of guilt an instruction in substantially the language of V.T.C.A. Penal Code, § 8.04(a), (b) and (d). After the jury returned its verdict the judge of the trial court convened a hearing outside the presence of the jury to determine in advance certain matters pertaining to the punishment phase, and from the record it is obvious that those matters vis a vis a prepared charge on punishment had already been reviewed by and discussed with the judge.

¶5The first was appellant’s motion to prohibit introduction of prior convictions. Once those issues were resolved, counsel for appellant “put on the record” the fact that after full explanation appellant freely and voluntarily made the decision not to testify. Then the judge directly addressed appellant on the subject of submitting to the jury a request for probation; upon ascertaining that matter also had been explored, the judge remarked, “It is my understanding you do not wish to have a Charge to the Jury for the jury to consider your eligibility for probation and probate any sentence they may give you,” and appellant personally answered affirmatively. At that point his attorney stated, “For the purpose of the record, the Defendant objects to the Court’s Charge, in that it does not contain a voluntary intoxication charge.” The court responded, “[Y]our request will be denied.” The hearing thus concluded, the court directed that the jury be brought in.

¶6The State promptly offered documentary evidence of prior convictions, there were stipulations as to identity, the prosecutor released his witnesses and interpreted the exhibits for the jury, and then announced, “[A]t this time the State would re-offer all the evidence introduced in the case in chief and rest.” Whereupon counsel called the mother of appellant who testified to facts the court of appeals opined “might have been sufficient to support the requested charge,” Arnold v. State, supra, at 393. Then the defense rested and the State closed, and the court informed the jury, “That concludes the evidence, members of the jury. I will now read you the Court’s charge at the Punishment stage of the trial.” And without giving counsel an opportunity to object immediately proceeded to do so.*

¶7Manifestly, the judge of the trial court did not follow the traditional practice of first taking evidence on punishment, then retiring the jury, presenting a proposed charge to the parties, allowing a reasonable time for them to examine the same and *18providing an opportunity for counsel for defendant to make objections. However, the judge and counsel should not be faulted for not following that practice since in fact the judge did literally comply with both Article 37.07, § 3(b) and the requirement stated in Article 36.14. From the record of the preliminary hearing it is clear that before the charge of the court was read to the jury the judge had not only presented a proposed charge on punishment to the parties but also had discussed with them matters that were not to be included, heard counsel’s objection for failure include an instruction on voluntary intoxication and denied his “request.”

¶8Accordingly, whether the Court of Appeals correctly analyzed the procedural posture of things in light of governing law, rather than notions of tradition and practice, before overruling the second ground of error is a live and important question of state law that ought to be resolved by this Court. Because the Court does not pursue that question to an answer, but takes a different route to affirm the judgment below, I respectfully dissent.