Sanders v. State ( 1978 )

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault. Punishment was assessed by a jury at two years. The sufficiency of the evidence is not challenged.

In two grounds of error appellant argues that discussion of the parole law during jury deliberations constituted the receipt of other evidence by the jury after it had retired to deliberate, entitling him to a new trial under Article 40.03(7), V.A.C.C.P., and that such discussion constituted jury misconduct depriving him of a fair and impartial trial under Article 40.03(8), V.A.C.C.P. He relies on Heredia v. State, Tex.Cr.App., 528 S.W.2d 847, and Sweed v. State, Tex.Cr.App., 538 S.W.2d 119.

The State in reply contends the discussion of the parole law was not sufficient to deprive appellant of a fair and impartial trial, and, alternatively, that appellant was not harmed in that the effect of the discussion was to reduce the punishment assessed by the jury.

At the hearing on appellant’s motion for new trial eight of the jurors appeared and were sworn as witnesses. Appellant called to the stand the two jurors who had made affidavits in support of his motion for new trial. The State presented no witnesses on the issue, and none of the other jurors were called to testify.

Juror Rigdon testified that during deliberations at the punishment stage of appellant’s trial one of the jurors, known as the Colonel, stated he had served on court mar-tials and was familiar with the parole system. He told the jury that if appellant were given a two year sentence, he would not have to serve more than eight months. Rigdon testified she felt two years was too long a sentence and she was thinking of probation, but the Colonel’s statement on the parole laws caused her to change her position. She further testified that the Colonel “said he had been on a lot of court-martials and he knew a lot about the penitentiary system. . . . That he [appellant] would not have to serve more than eight months if he behaved himself, is the way he put it.” She stated she would not have voted for two years in the penitentiary if she had not been told these statements about the parole system. On cross-examination Rigdon testified her first vote was for eight years probation.

Juror Campbell was the other witness at the hearing on the motion for new trial. She testified that there was a great deal of discussion of the parole law and that a juror called Colonel and several other men on the jury “said that normally if we sentenced him to two years he would serve between six and eight months and be eligible for parole.” Prior to the discussion she voted for probation, and after the discussion she voted for the penitentiary term. On cross-examination she stated she had favored five years probation, and that the factors influencing her in changing her vote were the discussion of the parole law and her fear that another jury might give him greater punishment if he were retried.

The State cites McCartney v. State, Tex.Cr.App., 542 S.W.2d 156, for the propositions (1) that the trial court could resolve conflicts in the testimony of the jurors, and find that only the possibility of parole after eight months was discussed; and (2) that it is common knowledge that inmates are sometimes released on parole, and not every mention of the parole law requires reversal. In the record before us, however, there is no dispute ¹ that the parole law was discussed extensively, and that it did affect jury deliberations on the issue of whether to grant or deny probation.

Although not every mention of the parole law requires reversal, “[J]ury discussion of the parole laws is always misconduct,” Moore v. State, Tex.Cr.App., 535 S.W.2d 357. In Moore the Court continued:

whether the same constitutes such error as to mandate reversal depends upon the particular circumstances of each case. Heredia v. State, Tex.Cr.App., 528 S.W.2d 847.

“The trial court should always attempt to eliminate the possibility of such misconduct by instructing the jury at the punishment phase that it should not discuss or consider the possible effects of the parole laws or system.”

In Heredia v. State, supra, the Court stated:

“. . . discussion of the parole law, although common knowledge, would in every case constitute jury misconduct since the parole law is not for the jury’s consideration.⁴

It would be improper for punishment to be based on an expectation that clemency powers would be exercised, and it would be unconstitutional to attempt to delay the exercise of the clemency powers or to avoid the possible granting of parole by increasing punishment in anticipation thereof. Article II, Sec. 1 of the Texas Constitution provides for the separation of governmental powers among the three distinct departments, the executive, legislative, and judicial. It is well established under this Article that:

“[A] power which has been granted to one department of government may be exercised only by that branch to the exclusion of the others. . . And any attempt by one department of government to interfere with the powers of another is null and void.” Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774; Smith v. Blackwell, Tex.Cr.App., 500 S.W.2d 97. (Emphasis added.)

Clemency powers embodied in the parole system are beyond the reach of interference by the judicial branch, Art. IV, Sec. 11, Texas Const.; and any action by the judicial branch to frustrate or delay the exercise of that power by the executive branch is as much of an unconstitutional interference as is an attempted usurpation of that power. See, Ex parte Giles and Smith v. Blackwell, supra, for unconstitutional grants of authority to usurp clemency powers.

This is the constitutional basis for the established rule that discussion of the parole law is always jury misconduct. The issue remains, whether, in the terms of Art. 40.03(8), supra, the misconduct here was such that “the court is of opinion that the defendant has not received a fair and impartial trial.” The uncontradicted record shows that the parole law was discussed extensively, and that it did affect jury deliberations on the issue of whether to grant or deny probation, in that two jurors changed their votes from granting probation to denying probation.

The State argues that the effect of the discussion was to reduce the punishment assessed by the jury, and therefore appellant was not harmed. It is true that the two jurors who testified did reduce the term for which they would vote from eight and five years to two years. The assessment of a term of punishment, however, is only one of the issues that was before the jury. The issue of probation was also before the jury, and on that issue appellant was clearly harmed.

The State cites Lechuga v. State, Tex.Cr.App., 532 S.W.2d 581, for the proposition that five years probation is a greater punishment than three years confinement. That was not the holding in Lechuga. In the majority opinions on both original submission and on rehearing it was held that assessment of punishment at five years was greater than that of three years. Probation, the Court indicated, and on this point the dissenters agreed, is designed to serve for the benefit of the convicted defendant. It is designed to be rehabilitative and ameliorative. Some of these benefits are clear from the following excerpts from Art. 42.-12, V.A.C.C.P.:

“ ‘Probation’ shall mean the release of a convicted defendant by a court under conditions imposed by the court for a specified period during which the imposition of sentence is suspended.” [Section 2(b)]

“If probation is granted by the jury the court may impose only those conditions which are set forth in Section 6 hereof.” [Section 3a, last paragraph]

“Where probation is recommended by the verdict of the jury as provided for in Section 3a above, a defendant’s probation shall not be revoked during his good behavior, so long as he is within the jurisdiction of the court and his residence is known, except in accordance with the provisions of Section 8 of this Article.” [Section 3b]

“At any time, after the defendant has satisfactorily completed one-third of the original probationary period or two years of probation, whichever is the lesser, the period of probation may be reduced or terminated by the court. Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the court, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. In case the defendant has been convicted or has entered a plea of guilty or a plea of nolo contendere, and the court has discharged the defendant hereunder, such court may set aside the verdict or permit the defendant to withdraw his plea and shall dismiss the accusation, complaint, information, or indictment against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty, except that proof of his said conviction or plea of guilty shall be made known to the court should the defendant again be convicted of any criminal offense.” (Emphasis added.)

Punishment and probation are clearly distinct and separate issues, Woods v. State, Tex.Cr.App., 532 S.W.2d 608, and the State misreads Lechuga, supra, when it argues the reduction in punishment shows appellant was not harmed. Both in Lechuga and here, as also held in Woods, supra, probation is a separate issue. The defendant has a right to have that issue determined by the jury. Blount v. State, Tex.Cr.App., 509 S.W.2d 615.

We conclude from this record that the jury misconduct of discussion of the parole law was harmful and denied appellant a fair and impartial trial. The discussion was extensive and adversely affected two jurors’ consideration of the probation issue. We need not address the issue raised under Article 40.03(7), supra.

The judgment is reversed and the cause remanded.

4 “4 . The determination to grant parole, if and when made, rests upon many facts and events not known to the jury, not proper for consideration by the jury, and not having occurred at the time of trial. Article 42.12, Sec. 12 et seq., V.A.C.C.P. The decision to parole, if and when made, is beyond the province of the courts . and therefore of the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulation by the legislative branch. Article IV, Section 11, Texas Constitution.” (Emphasis added.)

1 . Six of the jurors who appeared at the hearing and were sworn as witnesses did not testify.