Opinion issued September 23, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 263rd District Court, Harris County, Texas, Trial Court Cause No. 910961.
Panel consists of Justices TAFT, JENNINGS, and BLAND.
A jury found Charles Edward Jones guilty of possession of between one and four grams of cocaine, found two prior felony enhancement paragraphs true, and assessed punishment at 35 years' confinement. We affirm.
BackgroundLieutenant Stephen Casko of the Houston Police Department stopped a car because the driver had not maintained a single lane of traffic. Jones was a passenger in the car, and Jones's brother was the driver. Casko identified the car's occupants and checked their names for outstanding warrants. Because he did not receive a report indicating any outstanding warrants, Casko ended the stop and allowed the driver to continue driving. Casko's computer system had been having problems that night. About an hour after he released Jones and his brother, Casko received a delayed notification that Jones had an outstanding warrant for his arrest. Casko went to Jones's house, found Jones in the front yard, and placed him under arrest. Casko searched Jones. During the search, Casko found a crack pipe in his left pocket and a pill bottle containing 24 rocks of crack cocaine in his right pocket.
Questioning of the Venire about ParoleJones first contends that the trial court erred in refusing to allow his counsel to question the venire about parole. Specifically, defense counsel asked the following question:
If I'm correct on the law, you may receive a jury instruction from the court that you are not to discuss nor consider the matter of parole in any kind of sentence you assess. I would like to ask, is there a juror here who would be unable to follow that instruction.The State objected to the question, the court sustained the objection, and defense counsel noted its exception to the ruling. The State's appellate brief concedes that the trial court erred, but contends that the error is not harmful. We agree. Denial of the opportunity to ask a proper question during voir dire is error requiring a constitutional error harmless error analysis; thus, we must reverse unless satisfied beyond a reasonable doubt that the error did not impact the jury's verdict. Tex.R.App.P. 44.2(a); Gonzales v. State, 994 S.W.2d 170, 171 (Tex.Crim.App. 1999) (remanding cause for harm analysis based on trial court's impermissible exclusion of proper question about necessity defense during voir dire). The State asserts that the error is harmless because the court's charge contained the following jury instruction regarding parole:
It cannot accurately be predicted how the parole law and good conduct time might be applied to the defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.You may consider the existence of the parole law and good conduct time. However, 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. We presume the jury follows the trial court's instructions in the manner presented. Colburn v. State, 966 S.W.2d 511, 520 (Tex.Crim.App. 1998) (presuming jury followed trial court's supplemental jury instruction to not consider parole in reaching verdict after jury sent note to trial court asking about possibility of parole for life sentence in capital murder trial). The presumption is rebuttable, but Jones does not rebut the presumption by pointing to any evidence that the jury failed to follow the trial court's instructions regarding parole. See id. For example, he did not file a motion for new trial alleging juror misconduct, nor obtain a hearing to adduce facts not in the record. See id. In light of the trial court's proper instruction, we presume that the jury did not consider parole. See id. We therefore hold that the trial court's error in prohibiting defense counsel from asking the venire his proposed question regarding parole was not harmful, given the facts of this case. See Garcia v. State, 2003 WL 22669744, *8 (Tex.Crim.App. Nov. 11, 2003) (not designated for publication) (holding that prosecutor's improper inquiries to venire regarding parole was not harmful because trial court's instruction not to consider parole cured any error); Nathan v. State, 788 S.W.2d 942 (Tex.App.-Fort Worth 1990, no pet.) (holding that instruction cured any error, absent showing that jury acted upon improper comment about parole by venireperson). We overrule the first issue.