Johnny D. Blaylock A/K/A Johnny D. Baylock v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00274-CR
JOHNNY D. BLAYLOCK A/K/A APPELLANT
JOHNNY D. BAYLOCK
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
Appellant Johnny D. Blaylock a/k/a Johnny D. Baylock appeals his
conviction for possession with the intent to deliver a controlled substance;
namely, methamphetamine in a quantity of more than four grams but less than
1
See Tex. R. App. P. 47.4.
200 grams.2 In five points, Blaylock contends that the evidence is insufficient to
support his conviction; that the trial court erred by including parole instructions in
the jury charge; and that the trial court erred by overruling his objections to the
admissibility of certain evidence. We will affirm.
II. BACKGROUND
Detective Mike Bali of the Arlington Police Department testified that prior to
executing a no-knock warrant on September 11, 2008, a confidential informant
had told him that methamphetamine was being sold out of a duplex located at
811 Houston Street, Arlington, Texas. Bali placed the duplex under surveillance
and observed the informant purchase methamphetamine there. Bali also
observed that the duplex had its own surveillance equipment, which according to
Bali is consistent with “people dealing narcotics, so they can be aware of other
people’s presence or law enforcement’s presence, they’ll be aware that it’s
there.” Bali said that the informant believed that he had purchased the
methamphetamine from a person named Jonathan Coffey.
Based on this information, Bali obtained a search warrant for the duplex
located at 811 Houston Street. The affidavit and warrant list “Jonathan Coffey”
as the person the confidential informant purchased the methamphetamine from.
After SWAT executed the no-knock warrant, Bali went into the residence and
found a man later identified as Blaylock along with a woman named Lori Martin.
2
See Tex. Health & Safety Code Ann. § 481.112(a), (d) (West 2010).
2
According to Bali, there was only one bed found in the single bedroom in the
duplex. While executing the search warrant, Bali found over $2,000 cash on
Blaylock, $100 in a safe, and mail addressed to Blaylock at the duplex’s address.
Bali testified that the large amount of cash, consisting almost entirely of
denominations of $10 and $20 bills, was consistent with drug dealing. Bali said
that Blaylock told him that the duplex was his residence and that Martin was his
girlfriend but that she did not stay at the duplex. He also stated that Blaylock
never mentioned anyone named Coffey during the execution of the search
warrant.
Bali asked and received written permission from Blaylock to search a
“green Chrysler car” parked outside the duplex. By Bali’s account, Blaylock told
him that the vehicle was his and directed Bali to the keys so that he could search
it. Blaylock said that in the trunk of the car, he found a “tire fix-a-flat can” with a
hidden compartment. He found methamphetamine and baggies inside the
compartment. The methamphetamine weighed approximately 20.3 grams. Bali
stated that during his investigation and procuring of the warrant, Blaylock’s name
had never come up. Bali testified that at some point during the investigation, he
did learn that Blaylock and Coffey were two different people.3
Arlington Police Officer Juan Duran also testified at trial. Duran had
conducted surveillance of the duplex in anticipation of the warrant. According to
3
The record indicates that Coffey is Blaylock’s son.
3
Duran, Blaylock drove the green Chrysler into the duplex’s driveway about ten
minutes before the warrant was executed. Blaylock exited the car and went into
the duplex.
Detective Pamela Gold of the Arlington Police Department testified that
she was at the duplex when officers searched it. Gold said that during the
search, she found a jacket in the hall closet with an envelope containing over
$1,400 in its pocket.
Officer Matthew Clopton of the City of Arlington Police Department testified
that he also participated in executing the search warrant. Clopton was
responsible for searching the bedroom and the back portion of the duplex.
Clopton said that in the bedroom’s dresser, he found two firearms, a magazine
clip, two digital scales, baggies, and $635 cash. He also found $100 on top of a
chest of drawers and 1.7 grams of methamphetamine in a shot glass sitting on
the bed’s headboard. The search also revealed a glass pipe used for smoking
methamphetamine. Pictures of these findings were introduced into evidence and
published for the jury.
Next to testify was Arlington Police Department’s Officer Brad Pearce.
Pearce testified that he was the custodian of the evidence gathered at the
duplex. He is also a trained narcotics investigator. Pearce said that a number of
the items collected at the duplex, including firearms, scales, baggies, and
surveillance cameras, were items consistent with the sale of methamphetamine
and not the type of items you would expect to find from a typical “user” of the
4
drug. Pearce also averred that the amount of methamphetamine found in the
vehicle was consistent with a seller of methamphetamine. According to Pearce,
the amount of cash was consistent with a person who was “doing extremely well
with their sales” of methamphetamine.
The State also called John Harris, a forensic chemist for the Tarrant
County Medical Examiner’s Office. Harris testified that he had conducted
laboratory analysis of the substances seized during the search of the duplex.
Harris testified that the amount of methamphetamine seized was greater than
four grams but less than 200 grams in weight.
The trial court’s coordinator, Dawn Gallagher, testified that Blaylock had
missed three court hearings related to this trial over an almost two-year period
and that because of this, an arrest warrant was issued for Blaylock. Gallagher
stated that Blaylock had a warrant out for his arrest between August 2009 and
April 2011 related to his failure to come to court on these charges.
The defense called Blaylock’s neighbor, Lilly Thompson. Thompson
testified that she had been Blaylock’s neighbor for more than three years and
that “in and out” traffic increased significantly at times that Blaylock was gone but
his son, Coffey, was present. She also testified that Blaylock drives a green
Chrysler.
Blaylock testified in his own defense. Blaylock denied selling drugs out of
his duplex. According to Blaylock, both Martin and Coffey lived with him at the
time the police executed their warrant. He said that the green Chrysler belonged
5
to his daughter and that his daughter allowed him to drive it. Blaylock also said
that once his son began to live with him, his son also drove the vehicle. Blaylock
said that other people, including his girlfriend, drove the vehicle as well. He said
that when his son moved in with him, he had specifically instructed his son not to
have drugs in the house. Blaylock testified that he was the person who pulled
the green Chrysler into the driveway the night of the search. Blaylock said that
he had twice previously served prison time for selling drugs, in 1980 and again in
2000. He also said that at the time of trial, both Martin and Coffey were in prison
for drug-related offenses. Blaylock testified that because of signs that Martin was
doing drugs and having an affair with Coffey, he had given her a two-week
ultimatum to move out shortly before the search was conducted.
By Blaylock’s account, the affidavit in support of the warrant not only did
not have his name on it, it did not have his son’s name on it; rather, according to
Blaylock, the affidavit had his cousin’s name on it—Jonathan Coffey, who at the
time of trial was doing “fed time.” Blaylock said he never sold drugs out of the
duplex. He said that the surveillance system was nonfunctioning and that he had
installed it because people kept stealing his solar-powered decorative lights.
Blaylock said that he only had $163 on his person when the police searched him
and that Bali’s testimony that he found over $2,000 on Blaylock’s person was “a
lie.” He said that the money found in the jacket from the closet belonged to
Martin. Blaylock testified on direct that he no longer used or sold drugs: "I came
out [of prison] in 2005 this time, and I was done, didn’t want to have anything to
6
do with it, had a new life, everything.” But on cross-examination, and over his
objection to the prosecutor’s question, he admitted that while on bond, he tested
positive for methamphetamine. He also confirmed that he had been arrested for
possession of methamphetamine in March 2011, but he insinuated that the police
had planted the drugs on him. He also said that when the warrant was being
executed, he overheard the officer talk to his son and that after confirming the
son was Johnny and not Jonathan, “the officer let him go.” Blaylock said that the
same officer came into the room where the police were holding him and declared
that Blaylock looked “just like the guy” the officer had let go.
Blaylock admitted that he failed to come to the three trial court hearings.
He said he did so because he “got scared and ran.” Blaylock said that none of
the drugs, guns, or paraphernalia were his. He testified that by the time the
warrant was executed, he only occasionally slept on the couch but that otherwise
he had ceased living at the duplex while Martin and Coffey were there.
Over Blaylock’s objection, the State called Arlington Police Department’s
officer Patrick Knight as a rebuttal witness. Knight testified regarding Blaylock’s
arrest for possession of methamphetamine in March 2011. He described how he
had been dispatched to investigate a shoplifting call that was completely
unrelated to Blaylock when he was contacted by a manager about a couple
attempting to pass forged currency at a Wal-Mart. According to Knight, Blaylock
was with the individual attempting to use counterfeit currency and Knight
detained Blaylock and discovered that he had warrants for his arrest. He said
7
that despite having previously checked for contraband or weapons, he found a
baggie of methamphetamine under where he had seated Blaylock. While
securing him, Knight said that he pulled the baggie away from Blaylock with his
foot.
As a surrebuttal witness, Blaylock called his girlfriend at the time of trial,
Holli Wasson. Wasson was with Blaylock when he was arrested for possession
in March 2011. According to Wasson, Knight made “a lot of accusations . . .
about drugs” the day Blaylock was arrested in Wal-Mart. Wasson testified that
Knight actually pushed the drugs “towards” Blaylock prior to arresting him, not
away from him.
The jury returned a verdict of guilty and a finding of true to the indictment’s
habitual offender paragraph. After a punishment hearing, the jury sentenced
Blaylock to forty years’ incarceration. The trial court entered judgment
accordingly, and this appeal followed.
III. DISCUSSION
A. Sufficiency of the Evidence
In his first point, Blaylock argues that the evidence is insufficient to support
his conviction for possession with intent to deliver a controlled substance;
namely, methamphetamine greater than four grams but less than 200 grams.
Specifically, Blaylock argues that because the confidential informant informed
officers that it was Coffey who sold drugs from Blaylock’s residence, and
because the “evidence is [] just as consistent that [] Coffey sold”
8
methamphetamine from Blaylock’s residence, the evidence is insufficient to
support the jury’s verdict. Blaylock does not analyze why he believes the
evidence is not sufficient to uphold his conviction nor does he cite any authority
in support of his position. The State counters that the evidence is amply
sufficient to support Blaylock’s conviction. We agree with the State.
1. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole
judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.
Ann. art. 38.04 (West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.
App. 2008), cert. denied, ––– U.S. –––, 129 S. Ct. 2075 (2009). Thus, when
performing an evidentiary sufficiency review, we may not re-evaluate the weight
and credibility of the evidence and substitute our judgment for that of the
factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Instead, we determine whether the necessary inferences are reasonable based
9
upon the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.
Crim. App. 2007).
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor. Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. In
determining the sufficiency of the evidence to show an appellant’s intent, and
faced with a record that supports conflicting inferences, we must presume—even
if it does not affirmatively appear in the record—that the trier of fact resolved any
such conflict in favor of the prosecution, and we must defer to that resolution.
Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
2. The Law on Possession with Intent to Deliver
A person commits the offense of possession of a controlled substance with
intent to deliver if the person (1) possesses a controlled substance, (2) knows
that the substance is a controlled substance, and (3) intends to deliver the
substance. Tex. Health & Safety Code Ann. § 481.112(a) (West 2010). A
person possesses an object if he has actual care, custody, control, or
management of that object. Id. § 481.002(38) (West 2010). Possession need not
be exclusive. Evans v. State, 202 S.W.3d 158, 162, 166 (Tex. Crim. App. 2006).
When the accused is not in exclusive possession of the place where the
controlled substance is found, then additional, independent facts and
circumstances must link the accused to the substance in such a way that it can
10
reasonably be concluded that the accused possessed the substance and had
knowledge of it. Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App.
2005); Kibble v. State, 340 S.W.3d 14, 18 (Tex. App.—Houston [1st Dist.] 2010,
pet. ref’d). The following are some links that may circumstantially establish the
sufficiency of the evidence to prove knowing possession: (1) the defendant’s
presence when a search is conducted; (2) whether the substance was in plain
view; (3) the defendant’s proximity to and the accessibility of the substance;
(4) whether the defendant was under the influence of narcotics when arrested;
(5) whether the defendant possessed other contraband or narcotics when
arrested; (6) whether the defendant made incriminating statements when
arrested; (7) whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present; (11) whether
the defendant owned or had the right to possess the place where the substance
was found; (12) whether the place where the substance was found was enclosed;
(13) whether the defendant was found with a large amount of cash; and
(14) whether the conduct of the defendant indicated a consciousness of guilt.
Evans, 202 S.W.3d at 162 n.12. Not all of these factors must be proved; rather,
it is the cumulative logical force the factors have in proving possession that we
must consider. See James v. State, 264 S.W.3d 215, 219 (Tex. App.—Houston
[1st Dist.] 2008, pet. ref’d). Additionally, absence of some of the factors is not
11
evidence of innocence that must be weighed against the factors that are present.
Id.
A person intends to deliver a substance if it is his conscious objective or
desire to transfer, actually or constructively, the substance to another. Tex.
Health & Safety Code Ann. § 481.002(8); Tex. Penal Code Ann. § 6.03(a) (West
2011). Intent to deliver can also be proved by direct or circumstantial evidence.
Rhodes v. State, 913 S.W.2d 242, 251 (Tex. App.—Fort Worth 1995), aff’d, 945
S.W.2d 115 (Tex. Crim. App.), cert. denied, 522 U.S. 894 (1997). Courts also
infer the intent with which a person is acting from his acts, words, and conduct.
Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995), cert. denied, 517
U.S. 1106 (1996). With regard to the intent to deliver drugs, pertinent factors
include (1) the nature of the location where the defendant was arrested, (2) the
quantity of drugs the defendant possessed, (3) the manner of packaging of the
drugs, (4) the presence or absence of drug paraphernalia, (5) whether the
defendant possessed a large amount of cash in addition to the drugs, and (6) the
defendant’s status as a drug user. Williams v. State, 902 S.W.2d 505, 507 (Tex.
App.—Houston [1st Dist.] 1994, pet. ref’d). These are evaluative factors;
evidentiary sufficiency does not require the presence of each factor. Gaither v.
State, No. 07-10-00669-CR, 2012 WL 280573, at *1 (Tex. App.—Amarillo
Jan. 31, 2012, no pet.)
12
3. Analysis
Regarding the links confirming Blaylock’s possession of the
methamphetamine, the record reveals that Blaylock was present at his residential
duplex when officers executed the search warrant. Multiple officers also saw
Blaylock arrive at the duplex prior to the execution of the search warrant and exit
his green Chrysler—the vehicle where a large amount of methamphetamine and
paraphernalia was secreted away in a hidden compartment. The remaining
methamphetamine and paraphernalia (including baggies, digital scales, guns,
and a pipe) were found in the lone bedroom in Blaylock’s residence. Blaylock
had access to and the right to possess both locations where the
methamphetamine and paraphernalia were found—his vehicle and his residence.
He even gave police written consent to search his vehicle and provided them
with keys. And large amounts of cash were found on Blaylock’s person, in a
jacket pocket found in a closet of his residence, and in the lone bedroom.
Regarding the evidence supporting the verdict that Blaylock intended to
deliver the methamphetamine, the location of Blaylock’s arrest points to intent to
deliver. Blaylock’s duplex had surveillance cameras, a factor that Bali testified to
as being consistent with a house where drugs are sold. Bali observed a
confidential informant purchase methamphetamine from Blaylock’s duplex.
When the warrant was executed, Bali discovered mail addressed to Blaylock at
the duplex. Multiple officers testified that Blaylock arrived in a green Chrysler,
exited the vehicle, and went into the duplex prior to the execution of the warrant.
13
And Blaylock gave the officers permission to search the vehicle. Regarding the
quantity of drugs found, Bali discovered over twenty grams of methamphetamine
hidden in the trunk of Blaylock’s vehicle. Clopton found an additional 1.7 grams
of methamphetamine in plain view in the only bedroom in Blaylock’s duplex. The
manner in which the methamphetamine was found in Blaylock’s car was
consistent with delivery of the drug—hidden in a “false” compartment along with
small baggies. Additionally, Bali found roughly $2,000 cash on Blaylock’s
person, Gold discovered another $1,400 cash in a closet inside Blaylock’s
duplex, and Clopton found $635 cash in the bedroom. The money was largely in
the denominations of $10 and $20 bills. Officers testified that these
denominations are consistent with a person who sells methamphetamine and
that given the amount of cash found on Blaylock and at his residence, he was
doing “well” as a methamphetamine seller. Police discovered drug paraphernalia
in Blaylock’s duplex and in his vehicle. And Blaylock testified that he had twice
previously served prison time for delivery of a controlled substance and that he
had recently tested positive for methamphetamine. Furthermore, the jury was
free to disbelieve Blaylock’s testimony that the drugs were not his, that Coffey
lived with him and he had told Coffey not to sell drugs out of his home, that he no
longer sold drugs, and that the methamphetamine belonged to Coffey and
Martin. See Clayton, 235 S.W.3d at 778–79.
Considering the necessary reasonable inferences based upon the
combined and cumulative force of all the evidence deduced at trial and viewing
14
the evidence in light most favorable to the verdict, a reasonable trier of fact could
have found beyond a reasonable doubt that Blaylock possessed the
methamphetamine with intent to deliver. See Cadoree v. State, 331 S.W.3d 514,
524 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (reasoning that sufficient
evidence existed to support intent to deliver where, among other facts, a witness
reported that defendant sold drugs out of house where defendant was arrested
and defendant was seen by police leaving room where drugs and drug
paraphernalia were discovered). We overrule Blaylock’s first point.
B. Prosecutor’s Questioning Officer about What Blaylock Said
In his second point, Blaylock argues that the trial court erred by overruling
his objection to the prosecutor’s question posed to one of the testifying officers,
“Did Mr. Blaylock ever indicate to you that when you’re there executing this
warrant, that this is all Jonathan Coffey and this all belongs to him?” This
question was asked during redirect examination of the witness and after defense
counsel had asked the witness a series of questions regarding what Blaylock had
said to the officer. The State argues that Blaylock has failed to preserve this
issue for your review. We agree with the State.
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687,
691–92 (Tex. Crim. App. 2009). An objection must be made as soon as the
15
basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); Lovill, 319
S.W.3d at 692; Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App.), cert.
denied, 522 U.S. 917 (1997).
Here, Blaylock did not object to the prosecutor’s question until after the
witness had answered the question, the State had passed the witness, and the
trial court asked of defense counsel whether there was, “Anything further.” We
conclude that Blaylock did not object to the prosecutor’s question as soon as the
basis for the objection became apparent and thus failed to present the objection
timely. We overrule Blaylock’s second point.
C. Impeachment Testimony
In his third and fourth points, Blaylock argues that the trial court erred by
overruling his objections to testimony elicited by the prosecutor. Blaylock argues
that during cross-examination, the prosecutor was improperly allowed to ask him
about having tested positive for methamphetamine while awaiting trial. He
further argues the prosecutor was improperly allowed to call rebuttal witness
Knight. The State argues that Blaylock created a false impression by testifying
that after his prior periods of incarceration, he was “done” with drugs and had “a
new life, everything.” Thus, the State contends that it was properly allowed to
impeach Blaylock’s testimony by questioning him and by calling its rebuttal
witness.
We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Orona v. State, 341 S.W.3d 452, 464 (Tex. App.—
16
Fort Worth 2011, pet. ref’d). A trial court does not abuse its discretion as long as
the decision to admit or to exclude the evidence is within the zone of reasonable
disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.
App. 1990) (op. on reh’g); Howell v. State, 175 S.W.3d 786, 790 (Tex. Crim. App.
2005).
An accused puts his character for veracity in issue by taking the stand, and
he may be impeached in the same manner as any other witness. See Hammett
v. State, 713 S.W.2d 102, 105 (Tex. Crim. App. 1986); West v. State, 169
S.W.3d 275, 279–80 (Tex. App.—Fort Worth 2005, pet. ref’d). Generally, prior
offenses are inadmissible for impeachment purposes unless the offense resulted
in a final conviction for either a felony or a crime involving moral turpitude and the
conviction is not too remote in time. See Ochoa v. State, 481 S.W.2d 847, 850
(Tex. Crim. App. 1972); Turner v. State, 4 S.W.3d 74, 78–79 (Tex. App.—Waco
1999, no pet.); see also Tex. R. Evid. 608, 609. But an exception arises when a
defendant testifies and leaves a “false impression” as to the extent of his prior
arrests, convictions, charges against him, or trouble with the police generally.
See Prescott v. State, 744 S.W.2d 128, 131 (Tex. Crim. App. 1988); Ochoa, 481
S.W.2d at 850. In such a case, the defendant is deemed to have “opened the
door” to an inquiry into the veracity of his testimony, and evidence of the
defendant’s prior criminal record is admissible to correct the false impression.
See Martinez v. State, 728 S.W.2d 360, 362 (Tex. Crim. App. 1987); Turner,
4 S.W.3d at 79. As a general rule, the false impression the State seeks to rebut
17
must be created by the defendant through direct examination. Wheeler v. State,
67 S.W.3d 879, 885 (Tex. Crim. App. 2002).
Here, on direct examination, Blaylock left the impression that he had
moved on from his previous life of drugs and that he no longer used or sold them.
Blaylock specifically said that he was “done” with drugs and that he had “a new
life, everything.” The trial court allowed the State to elicit testimony that contrary
to this claim, Blaylock had recently tested positive for methamphetamine.
Blaylock had also testified that the methamphetamine found under him when he
was arrested during the pendency of this trial was not his and that the police had
told him, “you’re wanted for a drug charge. [The packet of methamphetamine is]
going with you.” The State was allowed to call a rebuttal witness, the arresting
officer, to rebut the impression Blaylock gave the jury that he no longer used
drugs and that the methamphetamine was not found under him but rather planted
near him by the police. In light of the impression Blaylock left with the jury, we
conclude and hold that the trial court did not abuse its discretion by allowing the
State to impeach Blaylock’s testimony by asking him questions related to having
tested positive for methamphetamine and by calling Knight as a rebuttal witness.
See Townsend v. State, 776 S.W.2d 316, 318 (Tex. App.—Houston [1st Dist.]
1989, pet. ref’d) (“The two extraneous offenses were admissible to controvert the
false impression left by [the defendant] that he was not the type of person who
would commit a sexual offense against a child, and that he was simply the
18
innocent victim of the children's anger and their overactive imaginations.”). We
overrule Blaylock’s third and fourth points.
D. Parole Instruction in Jury Charge
In his fifth point, Blaylock argues that the trial court erred by overruling his
objection to the jury charge’s parole instruction. Blaylock does not make a
cogent argument as to why the trial court erred by including the parole instruction
in the jury charge; rather, Blaylock makes tacit references to the right to a fair trial
under the Texas Constitution, the federal due process clause, and the separation
of powers doctrine. We conclude that the trial court did not err by including the
parole instruction in the jury charge.
Article 37.07, section 4 of the Texas Code of Criminal Procedure requires
the trial court to submit a parole instruction to the jury at the punishment stage of
trial and sets out the instruction to be submitted. See Tex. Code Crim. Proc.
Ann. art. 37.07, § 4 (West Supp. 2012). Here, the trial court’s instruction on
parole law in the jury charge tracked the language of the statutory instruction.
See id. The parole charge is mandatory, and the trial court has no discretion to
avoid the statutory requirement that it be submitted to the jury. Luquis v. State,
72 S.W.3d 355, 363–64 (Tex. Crim. App. 2002). Various constitutional
challenges to the mandated parole charge have been rejected in Texas courts.
See, e.g., id. at 364–66 (holding parole instruction as sanctioned in article 37.07
does not violate the due course of law provision in article I, section 19 of the
Texas Constitution or the federal constitution’s due process clause). We hold
19
that the trial court did not err by giving the statutorily required instruction.
Blaylock’s fifth point is overruled.
IV. CONCLUSION
Having overruled all five of Blaylock’s points on appeal, we affirm the trial
court’s judgment.
BILL MEIER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 1, 2012
20