Michael DeWayne Lyons v. State ( 1993 )

Lyons v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-164-CR

     MICHAEL DeWAYNE LYONS,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 177th District Court

Harris County, Texas

Trial Court # 596,731

O P I N I O N

      This is an appeal by Appellant Lyons from his conviction for aggravated robbery (enhanced by one prior felony conviction) for which he was assessed confinement for life in the Institutional Division of the Texas Department of Criminal Justice.

      On April 29, 1991, Joseph Forte drove his Lincoln to the apartment complex of one of his employees. Forte was standing outside the employee's apartment speaking with the next-door neighbor when he felt a gun barrel in the back of his neck. The robber, later identified as Appellant, frisked Forte and took his wallet, keys and watch. Appellant then ordered Forte to lay on his belly and told him he was going to kill him. Forte looked straight into Appellant's eyes—there was a noise and Appellant turned and looked—and Forte ran behind a van parked nearby. Appellant then got into Forte's Lincoln and drove it away. Forte caused the police to be called. The following day Appellant was spotted by the police in the Lincoln, and after a high-speed chase was apprehended. Forte identified Appellant from a lineup and also at trial. As noted, Appellant was convicted and assessed a life sentence.

      Appellant appeals on two points of error. Point one asserts that the trial court erred in permitting the State to bolster Forte's unimpeached testimony by presenting testimony of a police officer to demonstrate that the complainant identified Appellant in a lineup. As noted, Forte positively identified Appellant at a lineup at the police station and again at trial.

      At trial, police officer Rivera was permitted to testify, over objection, that Forte came to a lineup, where the officer presided, and identified Appellant as the man who robbed him at gunpoint. Appellant contends that Rivera's testimony was impermissible bolstering of Forte's unimpeached testimony and requires reversal.

      Assuming, without deciding, that the admission of Officer Rivera's testimony was error, it was certainly harmless and, beyond a reasonable doubt, made no contribution to Appellant's conviction or to the punishment. Tex. R. App. P. 81(b)(2). Point one is overruled.

      Point two asserts that the jury clearly considered parole and its application to Appellant during its deliberation on punishment. The jury was given the standard statutorily-mandated parole-law instruction which included, "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 the parole law may be applied to this particular defendant", and "You are not to discuss among yourselves how long the accused would be required to serve the sentence that you impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Parole Division of the Texas Department of Criminal Justice, and of the Governor of the State of Texas, and must not be considered by you."

      During the punishment-phase deliberation, the jury sent the court a note saying, "We, the jury would like this information: What was the length of the defendant's prison term? When was the defendant released from prison?" The court responded in writing, "I am not permitted to answer your questions." Such answer was approved in writing by both State counsel and defense counsel. Thereafter, the jury sent the court a note saying, "We, the jury would like the following information: What is the difference between a life sentence and a 99-year sentence?" The court responded in writing, "I am not permitted to answer this question." Such answer was approved in writing by both State and defense counsel.

      Appellant contends the forgoing constitutes proof that the jury discussed how parole law will be applied to him, and that the discussion of parole law is jury misconduct and deprives him of a fair and impartial trial.

      The questions asked the court by the jury, and the court's response thereto, do not establish that the jury considered parole and its application to Appellant during their deliberation on punishment. Moreover, counsel for Appellant did not object at trial, based on the questions, to the continued deliberation of the jury, did not file a motion for a new trial, request a hearing thereon, or develop evidence to support his allegation of jury misconduct.

      There is no affirmative evidence in the record that the jury considered parole and its application to Appellant and nothing is preserved for review. Point two is overruled.

      The judgment is affirmed.

                                                                                     FRANK G. McDONALD

                                                                                     Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed February 10, 1993

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