Jury Misconduct by Considering Parole

Facts:

John Doe (Doe) was convicted for committing burglary of a habitation. During the sentencing phase of trial, as the jury deliberated, the jurors requested an explanation of operation of parole and a black board so they could “organize their thoughts.” At the conclusion of the trial, the Bailiff of the 7th Judicial District Court retrieved several papers listing in chart form particular sentences and time actually served after parole credit. On one of these papers, one of the jurors had written thirty-seven (37) years and $4,000.00 fine. The jury eventually assessed Doe’s punishment at thirty-six (36) years and $4,000.00 fine.

I. The Five Factors Articulated in Sneed v. State, 670 S.W.2d 262 (Tex. Crim. App. 1984), to Determine Whether a Jury’s Deliberation of Parole Violate the Separation of Powers Under the Texas Constitution, and Sneed Must Be Overruled.

The Texas Constitution divided Texas’ sovereign power into the Executive, Legislative, and Judicial branches, and no one exercising the power of one of these branches can lawfully exercise the power reserved to a different branch of government, unless the Texas Constitution permits it. Tex. Const. art. II, § 1. The Texas Constitution mandated that the legislature create a Board of Pardons and Paroles and allowed the legislature to enact laws governing the operation of parole. Id. at art. IV, § 11. The Board of Pardons and Paroles is an agency within the executive branch,[1] and the power to grant pardons and paroles rests solely within the power of the executive branch of the Texas Government. Id. But the Texas Constitution does allow the legislature to enact legislation permitting a trial court to inform juries about the effect of good conduct time and parole eligibility. Id. And the legislature has done so. See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon 2003 & Supp. 2006).

Juries belong to the judicial branch of the Texas Government.[2] Tex. Const. art. V, § 10. Although it has the right to know of the possibility parole and the effect of good time credit on eligibility for parole, a jury cannot discuss the operation of parole while it deliberates about the sentence to be imposed upon a defendant. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). But as the law currently stands, when a jury deliberates about the operation of parole, it does not commit reversible error unless there was a “(1) misstatement of law; (2) asserted as fact, (3) by one professing to know the law; (4) relied upon by other jurors, and (5) who for that reason changed their vote to a harsher punishment.” Sneed v. State, 670 S.W.2d 262, 265-66 (Tex. Crim. App. 1984). In other words, a jury is free to deliberate about the operation of parole—and alter an offender’s sentence accordingly—as long as the juror or jurors explaining its operation do so accurately or qualify the explanation with “but I’m not really sure.” Sneed, 670 S.W.2d at 267-68 (Odom, Judge, dissenting).

And by discussing the operation of parole as applied to a particular defendant, the jury is usurping the power reserved to the executive branch in the Texas Constitution. When a jury deliberates about the operation of parole law and sentences a defendant with a harsher penalty than it would have if it had not deliberated about the operation of parole, it is determining when the defendant will be parole eligible. Id. But the power to determine when a person is parole eligible belongs to the Texas Board of Pardons and Paroles. Tex. Const. art. 4, § 11. Therefore, when a jury deliberates about the operation of parole and determines when the defendant should be parole eligible, it is exercising powers reserved to the executive branch in violation of Article II section 1 of the Texas Constitution, even if no juror makes a misstatement of the law as the jury discusses the operation of parole. Id.

Because it allows the jury to exercise the power to determine a defendant’s eligibility for parole, a power reserved to the executive branch, the standard articulated in Sneed to determine when a jury’s deliberations about the operation of parole constitutes reversible error violates the separation of powers guaranteed in the Texas Constitution.

II. Even Following the Five Sneed Factors, the Jury’s Deliberation of the Operation of Parole in Doe’s Case Deprived Doe of a Fair Trial.

It is improper for a jury to discuss the operation of parole when assessing the penalty to be imposed on a defendant who has been found guilty. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). But for a defendant to prevail, he must prove (1) the jury actually deliberated about the operation of parole and (2) the jury’s deliberation deprived him of a fair trial. Id. at 519-20. And the trial court’s instruction not to consider the operation of parole during jury deliberations creates a rebuttable presumption that the jury did not discuss the operation of parole. Id. at 520. But a simple note inquiring about parole eligibility is insufficient to rebut this presumption. Id.; Graham v. State, 96 S.W.3d 658, 661 (Tex. App.—Texarkana 2003, pet. ref’d). If a defendant succeeds in rebutting this presumption, his sentence will not be reversed unless the jury’s deliberation about the operation of parole deprived him of a fair trial. Sneed v. State, 670 S.W.2d 262, 265-66 (Tex. Crim. App. 1984). And the mere discussion of the operation of parole does not deny a defendant of a fair trial. Dawkins v. State, 822 S.W.2d 668, 673-74 (Tex. App.—Waco 1991, pet. ref’d) (stating jurors are free to discuss things within the realm of common knowledge such as the fact that many people convicted of crimes do not serve their entire sentences in prison). Rather, a defendant is deprived of a fair trial if during jury deliberations there was a “(1) misstatement of law; (2) asserted as fact, (3) by one professing to know the law; (4) relied upon by other jurors, and (5) who for that reason changed their vote to a harsher punishment.” Sneed, 670 S.W.2d at 266.

First, there is sufficient evidence to rebut the presumption that the jury did not discuss parole during its deliberations. In Colburn, while it considered whether Colburn should receive the death penalty or a life sentence, the jury sent a note to the court asking, “Given a life sentence, is there a possibility of parole in this case?” 966 S.W.2d at 519. The trial court responded that the Texas Constitution prohibited the jury from discussing parole during its deliberations. Id. The court held the note was evidence the jury considered parole as a preliminary topic, but the note was insufficient to rebut the presumption that the jury obeyed the trial court’s instruction in response to the jury’s note. Id. at 520. Like the jury in Colburn, the jury considering Doe’s sentence sent a note to the trial court inquiring about the operation of parole.[3] But unlike the jury in Colburn, the jury considering Doe’s sentence did not merely send a note to the trial court inquiring about the operation of parole. After the jury sentenced Doe to thirty-six (36) years and a $4,000 fine, the bailiff for the 7th District Court found several papers listing in chart form particular sentences and time actually served after parole credit. On one of these papers, one of the jurors had written thirty-seven (37) years and $4,000.00 fine, a sentence substantially similar to the sentence Doe received.

These papers prove the jury not only considered parole at a preliminary stage of deliberations but that the operation of parole and the time Doe would actually serve because of parole eligibility was central to its deliberations. Because the jury’s discussions concerning the operation of parole in Doe’s case were central to its deliberations, the presumption the jury did not consider the operation of parole is rebutted, and the jury actually discussed the operation of parole as a central topic of its deliberations. Therefore, the jury actually deliberated about the operation of parole, and the court must consider whether the jury’s conduct constitutes reversible error which necessitates a new trial.

Second, the jury’s conduct while deliberating about Doe’s sentence constitutes reversible error. Again, for the jury’s deliberations to have deprived Doe of a fair trial and constitute reversible error, there must have been a “(1) misstatement of law; (2) asserted as fact, (3) by one professing to know the law; (4) relied upon by other jurors, and (5) who for that reason changed their vote to a harsher punishment.” Sneed, 670 S.W.2d at 266. In Sneed, during jury deliberations, one of the jurors asked whether it was true that a “prison year” is only seven months long. Id. at 263. While there was conflicting testimony about the extent and duration of how long Sneed would actually spend in prison, all jurors who testified agreed that no one professed to know the law. Id. at 265-66. And even though the jurors who testified admitted that they voted for a harsher sentence because of the jury’s discussion about the operation of parole, the Court of Criminal Appeals held the discussion was not reversible error because Sneed could not satisfy the first three factors of the aforementioned test. Id. at 266.

Furthermore, in Dawkins v. State, one of the jurors considering the sentence to impose on Dawkins was a former jailer at the Hill County Jail. 822 S.W.2d 668, 673 (Tex. App.—Waco 1991, pet. ref’d). During deliberations, another juror asked her about how much of a person’s sentence is actually served. Id. The former jailer answered that inmates serve approximately twenty-eight days for every year but was “not for sure exactly.” Id. The court held the former jailer’s assertion was not a misstatement of law asserted as fact by one professing to know the law because the former jailer qualified her words with “not for sure exactly.” Id. at 675. Further, Dawkins failed to offer evidence to prove the remaining factors; therefore, the court affirmed his sentence. Id.

Neither Sneed no Dawkins could satisfy the first three prongs of the Sneed test. But Doe can. The jury in Doe’s case (1) misstated the law when it created charts enumerating sentences and time actually served on those sentences. The jurors did not have information about the sentences of other offenders, and their charts consisted of simple, mathematical calculations which subtracted three-fourths of each sentence. The remaining time was labeled “Time Served.” But the jurors did not consider that the remaining one-fourth of each sentence cannot be considered time served because the final determination for when a defendant is eligible for parole rests with the Texas Board of Pardons and Paroles. Tex. Const. art. IV, § 11; Tex. Gov. Code Ann. § 508.145 (Vernon 2005). And the Board of Pardons and Paroles considers much more than just the sentence imposed on an offender when he was convicted. The Board of Pardons and Paroles also considers “the seriousness of the offense, the offender’s age, the offender’s juvenile history, the offender’s prior criminal history, the number of the offender’s prison incarcerations, the offender’s previous arrests, the offender’s participation in TDCJ-CID proposed or specialized programs, and letters of support and protest to the offender’s being released on parole.” http://www.tdcj.state.tx.us/bpp/what_is_parole/pg13.htm. Therefore, the simple calculations made by the jurors misstated the law governing the operation of parole because inmates do not simply serve one-fourth of their sentences and then are released on parole.

And the calculations of time served after parole credit would be granted were (2) asserted as facts. The number of calculations and notes about how much time would “actually” be served given a particular sentence indicates the jury believed that was how the law governing parole operates. And if the calculations were not asserted as facts, then they would not have been such an integral part of jury deliberations.

Additionally, the calculations were (3) made by one professing to know the law. The note the jury sent to the trial court indicates the jurors listened to the trial’s instruction about parole because it is possible for a defendant to serve only one-fourth of his sentence. And all the jurors who created charts professed to know the law as they created the charts listing sentences and time that would actually be served.

And (4) the jurors relied on the calculations on the charts when they assessed Doe’s punishment at thirty-six years. The charts prove the jury deliberated about the actual amount of time Doe should spend in prison. The jurors recognizing that nine is one-fourth of thirty-six felt Doe should spend nine years in prison. On one of the charts, a juror listed the sentence of thirty-seven years, only one year more than the sentence actually given to Doe, and one-fourth of thirty-seven is only slightly more than nine. But had they not relied on the charts and assumed Doe would only serve nine years in prison, as indicated by the charts, the jurors would not have assessed Doe’s punishment at thirty-six years.

And the jury’s the misstatement of the law caused (5) the jurors to change their votes to a harsher sentence. As noted, the jury’s consideration of what it believed the law governing parole caused it—assuming Doe will only serve nine years in prison—to assess Doe’s punishment at thirty-six years, indicating many jurors felt Doe’s actions merited a nine-year sentence or a sentence slightly higher than nine years. But because jurors misstated the law when they said Doe would only serve nine years of a thirty-six year sentence, the jurors who felt Doe’s sentence should be close to nine years voted to sentence him to thirty-six years, four times the sentence they would have imposed on Doe but for the other jurors’ misstatement of parole law!

Conclusion:

Jurors (1) misstated the law governing parole when they created charts to do mathematical calculations to determine how much time Doe would “actually serve.” The jurors who made the charts (2) asserted their charts as fact while (3) they professed to know the law governing parole; that is, their belief that offenders only serve one-fourth of their sentences. Other jurors relied on the charts when they assessed Doe’s sentence at thirty-six years, believing he would only serve nine years in prison, and (5) for that reason those jurors changed their votes from sentences close to nine years to the harsher punishment of thirty-six years.

Therefore, the jury’s misconduct of discussing the operation of parole laws deprived Doe of a fair trial, and justice demands that Doe receive a new trial.

Endnotes:

[1] Article IV of the Texas Constitution enumerates the powers of the executive branch.
[2] Article V of the Texas Constitution enumerates the powers of the Judicial Branch.
[3] The note said, “The jury requests that all evidence be provided. Also clarification, can we consider that possibly ¾ of a sentence may be removed because of parole?”