Jay A. Jackson A.K.A Jay Allen Jackson A.K.A. Jay Allan Jackson v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00346-CR
JAY A. JACKSON A.K.A. JAY APPELLANT
ALLEN JACKSON A.K.A JAY
ALLAN JACKSON
V.
THE STATE OF TEXAS STATE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CR13-0752
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MEMORANDUM OPINION1
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I. INTRODUCTION
A jury found Appellant Jay A. Jackson a.k.a. Jay Allen Jackson a.k.a. Jay
Allan Jackson guilty of the state jail felony offense of possession of less than one
gram of a controlled substance. See Tex. Health and Safety Code Ann.
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See Tex. R. App. P. 47.4.
§§ 481.102(2), .115(b) (West 2010). At the punishment trial, the jury found two
enhancement allegations to be true, and assessed Jackson’s punishment at
seventeen years’ confinement. The trial court sentenced him accordingly, and
Jackson perfected this appeal. He raises one issue, asserting error in the
punishment charge submitted by the trial court because, over Jackson’s
objection, it included the parole-law instruction mandated by code of criminal
procedure article 37.07, section 4(c). See Tex. Code Crim. Proc. Ann. art. 37.07,
§ 4(c) (West Supp. 2014). Because the trial court did not err by submitting the
specific parole-law instruction utilized in Jackson’s punishment charge, we will
affirm.
II. JACKSON’S ISSUE AND ARGUMENTS
Jackson claims that the inclusion of the parole-law instruction in his
punishment charge violated his right to due course of law guaranteed by article I,
sections 13 and 19 of the Texas constitution. He asserts four arguments: first,
he asserts that the court of criminal appeals in Rose v. State, 752 S.W.2d 529,
537 (Tex. Crim. App. 1987), correctly declared “substantially the same” parole-
law instruction unconstitutional; second, he argues that the mere fact that a
constitutional amendment was passed after Rose authorizing the legislature to
enact the current parole-law instruction does not mean it is constitutional; third,
he asserts that the parole-law instruction precluded his fair and impartial trial on
punishment; and finally, he urges this court to reconsider Oakley v. State, 830
S.W.2d 107, 109 (Tex. Crim. App. 1992), a case from the court of criminal
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appeals holding that the constitutional amendment authorizing the reenactment
of article 37.07, section 4 cured the constitutional infirmity previously found to
exist in the prior statute––that constitutional infirmity being a violation of the due
course of law provisions of the Texas constitution.
III. THE PAROLE-LAW INSTRUCTION
AND ITS INCLUSION IN JACKSON’S PUNISHMENT CHARGE
The court of criminal appeals and this court have previously ruled that the
parole-law instruction—reenacted after the Rose decision and after Texas voters
approved a constitutional amendment authorizing the legislature to require courts
to inform juries about the effect of eligibility for parole or good time credit on the
defendant’s period of incarceration—does not violate the Texas constitution’s
due course of law provisions. See, e.g., Luquis v. State, 72 S.W.3d 355, 362
(Tex. Crim. App. 2002) (explaining––in response to argument that reenactment
of parole-law instruction following constitutional amendment authorizing same
was nonetheless unconstitutional––that “this Court determined that the re-
enacted statute did not violate a defendant’s due course of law rights under the
Texas [c]onstitution”) (citing Oakley, 830 S.W.2d at 109); Thomas v. State, No.
02-09-00341-CR, 2010 WL 3377792, at *1–2 (Tex. App.––Fort Worth 2010, pet.
ref’d) (mem. op., not designated for publication) (rejecting same argument);
Sanders v. State, 255 S.W.3d 754, 765–66 (Tex. App.––Fort Worth 2008, pet.
ref’d) (rejecting same argument). Based on these holdings, Jackson’s first and
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second arguments do not establish error in the submission of the parole-law
instruction in his punishment charge.
To the extent that Jackson’s third argument may be construed as raising
an as-applied constitutional challenge to the parole-law instruction given in his
punishment charge, Jackson shoulders the burden to establish that the parole-
law instruction given in his case operated in an unconstitutional manner. Luquis,
72 S.W.3d at 366–67. In determining whether Jackson met this burden, we are
to determine whether, in light of the entire record, there is a reasonable likelihood
that the jury applied the challenged instruction in a way that violates the
constitution. Id. Jackson makes no such arguments, and reviewing the entire
record before us, there is nothing in the record suggesting that the jury was
confused in any way by the parole-law instruction. There is no evidence that the
jury did not follow the trial court’s clear and explicit direction to not apply the
general concepts of parole in assessing Jackson’s sentence. See id. at 368.
And, as pointed out by the State, Jackson’s counsel in his closing argument at
punishment informed the jury that the “most important” part of the parole-law
instruction is as follows:
You may consider the existence of the parole law and good
conduct time. You are not to consider the extent to which good
conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which parole may
be applied to this particular defendant.
And why is that? Because sometimes they serve their entire
time in jail. And you know from his past that’s kind of what’s
happened to him.
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So I’d advise you, follow the judge’s instruction, don’t consider
the manner in which good conduct time and the parole law will affect
him. Sentence him to whatever sentence you believe is appropriate,
okay?
Viewing the entire record before us, we hold that there is no evidence showing a
reasonable likelihood that the jury applied the parole-law instruction given in
Jackson’s case in a way that violates the constitution. Thus, Jackson’s third
argument does not establish error in the submission of the parole-law instruction
in his punishment charge.
Jackson’s fourth argument urges this court to reconsider the holdings set
forth in Oakley. See 830 S.W.2d at 109. But Oakley is an opinion from the
Texas Court of Criminal Appeals; the opinions from that court are binding on us.
See, e.g., Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964) (holding that once
the highest court of the State having jurisdiction of a matter decides a principle,
rule, or proposition of law, that court and all other courts of lower rank must
accept the decision as binding precedent); Southwick v. State, 701 S.W.2d 927,
929 (Tex. App.––Houston [1st Dist.] 1985, no pet.) (same). We therefore decline
to review the holdings of the court of criminal appeals in Oakley. Jackson’s
fourth argument does not establish trial-court error in the submission of the
parole-law instruction in Jackson’s punishment charge.
Having addressed each of Jackson’s arguments made in support of his
sole issue, and having determined that the trial court did not err by including the
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parole-law instruction mandated by code of criminal procedure article 37.07,
section 4(c), we overrule Jackson’s sole issue.2
IV. CONCLUSION
Having addressed each of Jackson’s arguments and having overruled his
sole issue, we affirm the trial court’s judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 27, 2015
2
Because we have determined that the trial court did not err by including
the parole-law instruction in Jackson’s punishment charge, we need not address
the second prong of a charge-error analysis––whether sufficient harm resulted
from the error to require reversal. See, e.g., Middleton v. State, 125 S.W.3d 450,
453 (Tex. Crim. App. 2003) (setting forth two-pronged charge error analysis);
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994) (same).
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