Clanton v. State, 50093
Decision Date | 15 October 1975 |
Docket Number | No. 50093,50093 |
Citation | 528 S.W.2d 250 |
Parties | Henry Wade CLANTON, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Gary L. Watkins, Odessa, for appellant.
John H. Green, Dist. Atty., and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
GREEN, Commissioner.
This appeal is from a conviction for murder with malice, in which punishment was assessed at life.
The record reflects that on December 22, 1973, appellant shot and killed his ex-wife in a lounge in Odessa. According to appellant's testimony, the shooting was accidental.
In his first ground of error, appellant contends that the trial court erred in overruling his motion for a mistrial when the State, in its jury argument at the punishment stage, invited the jury to consider the length of time appellant would have to serve under the parole law.
The record reflects that during the final argument of the prosecuting attorney at the punishment stage the following remarks and the following objections and court rulings were made:
'What that is saying, if you give him life or one hundred and two or two hundred and fifty years, if you know or think he will just be there eight years, you can't discuss that and I can't discuss it, I can't tell you, But you can, if you know yourselves, base your decision, your verdict upon that.
'Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are of no concern of yours.
'THE COURT: I want to stop you right there, Mr. Green.
'That is what I just got through telling you, see.
(Emphasis added)
It is a matter of common knowledge that inmates are released from the Texas Department of Corrections, but a jury in a felony case is not authorized to consider or apply the parole law in assessing punishment. Argument urging them to do so is very improper, and constitutes error. Jones v. State, Tex.Cr.App., 522 S.W.2d 225; Hartman v. State, Tex.Cr.App., 496 S.W.2d 582; Graham v. State, Tex.Cr.App., 422 S.W.2d 922.
Recently, in Marshburn v. State, Tex.Cr.App., 522 S.W.2d 900, in reversing the judgment because of argument at the punishment stage inviting the jury to apply the parole law in assessing punishment, we said:
'It was stated in Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230 at 231 that to be approved by this Court, '(J)ury arguments need to be within the areas of (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement.' (Citations omitted from text). The arguments of the prosecutor do not come within any of the permissible areas of jury argument. On the contrary, the prosecutor's arguments were calculated to introduce prejudice into the mind of the jurors. Cf. Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575 at 576. The prejudice introduced by the prosecutor operates by urging the jury to impose an excessive prison term to compensate for or protect against the action of the Board of Pardons and Paroles.
See also Jones v. State, supra.
In the instant case, the court included in its charge to the jury the following instruction:
The State's argument was clearly an attempt to get around the court's instructions. Notwithstanding the court's instructions to the contrary, the prosecuting attorney told the jurors that it was a concern of theirs how long appellant would actually serve before being released from the penitentiary. After reading to the jury the court's instructions on the subject, supra, he expressly argued that while the jurors could not discuss how long appellant will be required to serve any sentence they might impose, The...
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