ROBERT ARTHUR HUPP,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-86-00531-CR
NO. 05-86-00532-CR
                                
 
 
ROBERT ARTHUR HUPP,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE THE COURT EN BANC
DISSENTING OPINION BY JUSTICE ROWE
JUNE 20, 1989
 
        I dissent. I am unable to agree with the majority's conclusion that beyond a reasonable doubt the error in question made no contribution to the punishment of life imprisonment which the jury assessed for appellant. In my opinion the majority has placed unwarranted emphasis upon certain "curative" instructions by the trial judge.
        At the outset I note that the presumption relied upon by the majority, i.e. that a jury has followed the trial judge's instructions, is not a presumption of the evidentiary type which itself constitutes some proof if not rebutted by contradictory testimony. Rather, the presumption in question is procedural in nature. It is a device utilized by appellate courts to affirm a judgment after it has been determined that the potential for prejudice flowing from the introduction of objectionable material is capable of being cured by a subsequent instruction to disregard. As the Court of Criminal Appeals wrote in Gardner v. State.
        In the vast majority of cases in which argument is made or testimony comes in, deliberately or inadvertently, which has no relevance to any material issue in the case and carries with it some definite potential for prejudice to the accused, this court has relied on what amounts to an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury. See 1 R Ray, Texas Practice, Law of Evidence, § 29 (3rd ed. 1980); Thompson v. State, 612 S.W.2d 925 (Tex. Crim. App. 1981). In essence this Court puts its faith in the jury's ability, upon instruction, consciously to recognize the potential for prejudice and then consciously to discount the prejudice, if any, in its deliberations.
 730 S.W.2d 675, 696 (Tex. Crim. App. 1987).
        In assessing the potential for prejudice which arose from the giving of the statutory parole instructions, I would treat this acknowledged error as being what it substantively is--the introduction of inadmissible evidence. Further, since the Court of Criminal Appeals has held that no specific objection is necessary to preserve error in this instance, I would treat the introduction of this evidence as having occurred after due objection.
        After the trial judge had given his unconstitutional jury instruction detailing the essential aspects of parole, appellant's counsel sought to convince the jury that rather than assess a lengthy prison term, it should grant his client probation. Counsel sought probation upon condition that appellant be placed in a mental institution for psychiatric treatment and hopefully for a cure of appellant's sexual disfunction. Appellant had already testified that he feared that imprisonment would turn him into a hardened criminal--maybe even a murderer after his release from prison. In this context, for the purpose of thwarting the jurors' adverse consideration of early release for good conduct time, appellant's counsel argued as follows:
        Now, even if you were to put a life sentence on him, like what is possible, it has been explained to you it didn't used to be the law, but now you are allowed to really understand what's going on and see the whole picture. And it just comes down like this: With him being about twenty, unless things were just stacked up, he could easily be out long about the time that he was forty. And if he didn't have the problems addressed, he would still be a menace to society.
These remarks called the jurors' attention to a significant consequence of the parole law with respect to the offender in this particular case. FN:1
        We know from Rose that the prejudice flowing from the introduction of parole related evidence is capable of being ameliorated, although not entirely cured, by subsequent instruction. The problem with the case before us, however, is that certain parole related evidence was heard by the jury after all curative instructions had been given. After the new evidence had come in, there was no additional instruction to disregard. Thus, to my way of thinking, this procedural appellate device cannot be utilized at all in connection with our harm analysis. To state the matter simply, the majority should have conducted its analysis without resort to this prop. Undoubtedly, if it had done so, the result would have been different.
        Although the evidence in the record overwhelmingly supports the conviction of guilt and the offenses charged are heinous, the facts do not entirely militate in favor of the harshest possible sentence of life on both counts. Appellant was a young uncle of both complainants. He was of subnormal intelligence and lived with them of economic necessity in cramped family accommodations. He was capable enough, however, to keep for several years a menial job at minimal wages--most of the gain from which he contributed regularly to family upkeep. While threats were used to conceal the offensive conduct from adult family members, no threats or physical violence were used in commission of the offenses. To the contrary, appellant's general behavior within the family unit appeared to be harmonious albeit withdrawn. Even the two psychiatric experts who were called gave no testimony that appellant should be considered violent. Further, the gravity of the offenses for purposes of punishment was not compounded by any prior criminal misconduct. For these considerations, I am unable to find beyond a reasonable doubt that the error made no contribution to the punishment assessed. TEX. R. APP. P. 81(b)(2). I would reverse the sentence of life imprisonment and remand the cause for another trial.                
 
                                                          __________________________
                                                          GORDON ROWE
                                                          JUSTICE
PUBLISH
TEX. R. APP. P. 90
86-00531.DF
 
FN:1 I note that these remarks of appellant's counsel do not constitute invited error because an exception to the rule of curative admissibility is applicable here. Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985). Appellant had the right of neutralizing the prejudicial effect on him of the parole related materials by emphasizing some different feature of their prejudicial impact, to wit: appellant's earlier return to society as an untreated sex criminal. Contrary to what is thought to be the chief result of disclosing the truth about the parole laws, i.e. imposition of stiffer penalties, appellant's counsel certainly did not want his remarks to increase his client's sentence. What he was patently attempting to do was to meet and divert the normally expected result. Such a maneuver is privileged under the circumstances.
File Date[01-02-89]
File Name[860531DF]