Sato v. State

¶1dissenting.

¶2We granted review to determine whether the Court of Appeals correctly concluded that the parole law instruction, given under Art. 37.07, sec. 4(a), V.A.C.C.P., beyond a reasonable doubt made no contribution to the punishment. I would reverse.

¶3The Court of Appeals observed that the prosecutor mentioned the parole instructions during jury argument in the punishment phase, and the court noted that the jury rejected the State’s request for a sixty-year sentence. On this basis, the court concluded beyond a reasonable doubt that the parole law instruction made no contribution to the punishment.

¶4The Court of Appeals set out the following facts:

The evidence during the guilt/innocence phase of the trial reflected that the victim had stopped in a self-service gas station and filled up his car with gas, [and] left the keys on the trunk of the car while going inside to pay. While the victim was inside, appellant got in the car and began driving away. The victim saw him driving off and attempted to stop him by jumping on the hood. Appellant sharply accelerated the car, causing the victim to slide off onto [the] driveway. Appellant then veered the car causing it to run over the victim, breaking both his legs, and escaped. Appellant was later arrested in possession of the vehicle.

¶5In Arnold v. State, 784 S.W.2d 372 (Tex.Cr.App.1990), this Court discussed factors that are relevant to punishment and to the *40determination of the likelihood that the constitutionally infirm parole law instruction infected the jury’s assessment of punishment. Each case, of course, must be analyzed individually in light of the relevant factors discussed in Arnoldand the burden placed on the State as the beneficiary of the error to show beyond a reasonable doubt that the error did not contribute to the punishment. Id. at 375, 388.

¶6In the instant case neither party adduced any evidence on punishment; thus no prior criminal record was shown. The charge, to which appellant did not object, contained a § 4(a) instruction; it did not include a Rose “curative instruction.” See Rose v. State, 752 S.W.2d 529, at 554 (Tex.Cr.App.1987-1988). Only the lead prosecutor argued, and her remarks cover just some two and a half pages of the statement of facts. We summarize and quote them in the margin, bracketing the portion isolated by the court of appeals.1

¶7It was not error for the State to argue the law of parole to the jury, but the argument was “one made in terms tending to induce consideration of the eligibility formula and other teachings of a § 4 instruction [that] compounds Roseerror and may influence the jury in its deliberation on punishment.” Arnold, 784 S.W.2d at 379.

¶8The Court of Appeals affirmed appellant’s case based on the jury’s assessment of a sentence lower than that asked for by the prosecutor. Certainly the jury rejected the State’s argument for a sixty-year sentence. It does not necessarily follow that the jury also rejected the State’s argument inducing consideration of parole law and good conduct time. The prosecutor’s argument pointedly told the jury the State was asking for sixty years because appellant “is eligible in one-third of the time or 20 years, whichever is less.” The tenor of her entire argument supports an inference that the jury did indeed consider the parole law is assessing punishment. Arnold, n. 26, at 390. While the jury did not accept the recommendation of the prosecutor, neither did it assess a minimum term of years. Given to understand how the parole law would affect any punishment assessed against appellant, that the jury settled on twenty years comports with experience. See Arnold, at 383.2 Thus the term as*41sessed does not indicate beyond a reasonable doubt that the error made no contribution to the verdict on punishment.

¶9We previously noted that appellant did not object to the inclusion of the parole law instruction in the charge. The existence of an objection serves to dispel any speculative notion that defense counsel might be seeking to gain some advantage from the instruction. Arnold, at 379. The absence of an objection, without more, neither confirms nor disproves that possibility. Here, defense counsel presented no evidence and made no argument during the punishment phase.

¶10The State argues that the parole law instruction made no contribution to the punishment because of the brutal facts of the case, including the deliberate nature of appellant in running over the victim, and the statutory “curative” instruction. None of these factors demonstrate harmless error in this case.

¶11“ ‘Heinousness’ is a slippery indicator for gauging how a jury evaluated conduct of appellant in assessing punishment. In other words, to find the facts are so aggravating that the punishment is appropriate is simply not a satisfactory conclusion.” Arnold, at 388-389. The heinous facts of an offense cannot rule out the possibility that a jury may have taken into account the parole law instruction in assessing punishment. Id. {Payne), at 398. That a jury considers the evidence of guilt and the existence of parole and good conduct time, does not show beyond a reasonable doubt that the parole law instruction made no contribution to the punishment. Id., at 389.

¶12As to the State’s argument about the “curative” instruction, no part of the instruction provided for in Art. 37.07, sec. 4 can be considered “curative.” Id., at 388.

¶13Having evaluated the factors present in this case, we are satisfied that a rational appellate court cannot determine and declare beyond a reasonable doubt that the constitutional error in allowing the jury to consider the parole instruction made no contribution to the punishment.