Blount v. State

• Decision Date: 29 May 1974
• Docket Number: No. 48439,48439
• Citation: 509 S.W.2d 615
• Parties: Harold Dean BLOUNT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 615

509 S.W.2d 615

Harold Dean BLOUNT, Appellant, v. The STATE of Texas, Appellee.

No. 48439.

Court of Criminal Appeals of Texas.

May 29, 1974.

Victor R. Blaine, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Terry Collins, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery by assault. Punishment was assessed by the jury at eleven years.

Appellant contends the court erred in overruling his objection to the prosecutor's argument to the jury at the punishment stage of the trial.

Appellant made motion for probation and in support thereof testified at the punishment stage of the trial that he had never been convicted of a felony in this state or any other state. See Article 42.12, Section 3a, Vernon's Ann.C.C.P. The court instructed the jury that they might grant appellant probation if they assessed punishment not to exceed ten years and further found that appellant had never before been convicted of a felony in this state or any other state.

The record reflects the following occurred during the prosecutor's argument:

'. . . Now, you can go back in the jury room and you can assess any term of punishment you want for this man and as long as the term of punishment itself is not more than ten years then the judge in his wisdom knowing all the facts of this case can grant probation to this man. You don't have to say anything at all about probation in your verdict. If the judge in his wisdom thinks he would be a likely candidate for probation he can give probation.

'MR. HEALEY: Your Honor, I object to that, under the rules that it is within the jury's purvey to grant probation and he doesn't have to make reference to whether you can or not, Your Honor.

'THE COURT: Well, that's overruled.'

The prosecutor, in effect, told the jurors that they need not concern themselves with granting probation since the judge could grant same if he felt that appellant were entitled to probation.

In Weige v. State, 81 Tex.Cr.R. 476, 196 S.W. 524, it was held that prosecutor's argument urging conviction (where defense was insanity) upon theory that accused's insanity could later be inquired into required reversal. See Crow v. State, 33 Tex.Cr.R. 264, 26 S.W. 209; Jenkins v. State, 49 Tex.Cr.R. 457, 93 S.W. 726; Patterson v. State, Tex.Cr.App., 60 S.W. 557. See also 3 A.L.R.3rd 1448.

In Oakley v. State, 125 Tex.Cr.R. 258, 68 S.W.2d 204, argument was held to be error where the prosecutor argued if the jury convicted the defendant and he was insane they could get a writ of habeas corpus and get him out of the penitentiary. The court, in condemning such argument, said it 'was an appeal to the jury to disregard their responsibility of determining whether he was insane at the time of the commission of the offense.' See Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575.

In Smith v. State, Tex.Cr.App., 474 S.W.2d 486, by bill of exception, it was shown that the court answered, 'Yes, but This should not be considered,' (Emphasis supplied) to the jury's question, 'In event that we the...