Cherry v. State, 47794
| Decision Date | 03 April 1974 |
| Docket Number | No. 47794,47794 |
| Citation | 507 S.W.2d 549 |
| Parties | James V. CHERRY, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James S. Moss (Court appointed), Mesquite, for appellant.
Henry Wade, Dist. Atty. and William J. Teitelbaum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.
Appellant was convicted of the offense of theft over $50.00; the punishment enhanced under Art. 62, Vernon's Ann.P.C. was assessed at 10 years' confinement.
Appellant raises six grounds of error, only two of which will be considered in light of the result reached.
In appellant's fourth ground, he complains of the following argument made by the prosecutor at the guilt/innocence stage of the trial:
'I beleve that y'all know that the real reason we tried this case was not to determine guilt or innocence, but to determine what kind of punishment that is going to be set on this particular kind of crime.'
Appellant's objection was overruled by the trial court.
The above-quoted statement was uninvited by defense counsel, and a totally improper line of argument to pursue at the guilt/innocence stage of the proceedings. The error was compounded by the overruling of the appellant's objection. The State's contention that the statement was a legitimate plea for law enforcement is untenable. The improper remark was the last statement made to the jury before they retired to deliberate, and we cannot conclude that it constituted only harmless error, especially in light of the trial court's ruling.
Additional error is reflected in the prosecutor's argument; at one point, the prosecutor began suggesting to the jury possible defenses which the appellant could conceivably have raised, but did not. (The appellant did not testify in this case, and presented no witnesses in his behalf.) The record reflects the following statement made by the prosecutor:
(Emphasis added)
This Court has stated many times that in order for a prosecutor's statement to constitute a comment on the failure of the accused to testify it must clearly be a reference to just that. Turner v. State, 504 S.W.2d 843 (delivered February 6, 1974); Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972). That is exactly what we face in the present case. The prosecutor plainly stated that the Appellant did not tell the...
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State v. Lemon
...that the defendants might have given, but did not. Cook v. State, 702 S.W.2d 597, 599 (Tex. Crim. App. 1984); Cherry v. State, 507 S.W.2d 549, 550 (Tex. Crim. App. 1974). For the reasons set forth in the text of this opinion, we are not persuaded that, under the specific facts and circumsta......
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Brock v. State
...(Tex.Cr.App.1975); Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975); Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App.1974); Watson v. State, 171 Tex.Cr.R. 526, 352 S.W.2d 120 (1961); Griggs v. State, 166 Tex.Cr.R. 56, 311 S.W.2d 418 (1958); Lee......
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Montoya v. State
...to the appellant by gesturing towards him, the prosecutor used the pronoun "I" or its possessive form four times. In Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App.1974), the prosecutor began suggesting to the jury several defenses which the defendant could have raised, but did not. In doing s......
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Neal v. State, No. 08-07-00232-CR (Tex. App. 1/13/2010)
...subsequent motion for a mistrial. Appellant compares the prosecutor's statement to those found reversible in Cherry v. State, 507 S.W.2d 549 (Tex. Crim. App. 1974), and Kelly v. State, 903 S.W.2d 809 (Tex. App.-Dallas 1995, pet. ref'd). In Cherry, the Court found the State's closing argumen......