Clark v. State, s. 63455
Decision Date | 15 December 1982 |
Docket Number | No. 2,Nos. 63455,63456,s. 63455,2 |
Parties | Daniel CLARK, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Lawrence B. Mitchell, Dallas, for appellant.
Henry Wade, Dist. Atty. and Jeffrey B. Keck, Bob Whaley & Mary Ludwick, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.
Before ONION, P.J., and CLINTON and TEAGUE, JJ.
Appellant was charged with attempted capital murder in two separate indictments. In the first indictment, appellant was charged with the attempted capital murder of Waylon Bullard. In the second, he was charged with the attempted capital murder of James D. Humphreys. Both indictments alleged the offense of attempted capital murder proscribed by §§ 15.01 and 19.03(a)(1) of the Texas Penal Code. Both indictments were based upon circumstances arising out of the same factual situation. With the consent of appellant, both cases were tried together. The jury returned verdicts of guilty in each case. The punishment was assessed by the jury at life.
Because of our disposition of the cases, no discussion of the facts is necessary.
Appellant complains the prosecutor's argument at the penalty stage of the trial was manifestly improper inviting the jury to consider the parole law in assessing punishment.
During the prosecutor's argument the record reflects:
The State concedes that it is improper for the State's counsel to affirmatively urge the jury to consider how long a defendant would actually be required to serve any punishment the jurors might impose. Woerner v. State, 576 S.W.2d 85 (Tex.Cr.App.1979); Jones v. State, 564 S.W.2d 718 (Tex.Cr.App.1978); Clanton v. State, 528 S.W.2d 250 (Tex.Cr.App.1975). And as the State points out, it is also error for the prosecutor to call upon the jury to abandon their duty to assess a fair punishment based on the evidence and to assess a greater penalty in order to allow the Department of Corrections or the Board of Pardons and Paroles to determine when the defendant should be released. Jones v. State, 522 S.W.2d 225 (Tex.Cr.App.1975); Blount v. State, 509 S.W.2d 615 (Tex.Cr.App.1974); Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App.1976).
The State argues the prosecutor's remarks were a plea for law enforcement and a statement that, based upon appellant's past history, a lengthy prison term would be required to rehabilitate him. We do not agree.
The argument in the case at bar went beyond a general urging of a lengthy penalty, but focused directly on the fact that appellant had been previously convicted and given a 20-year sentence but was granted parole after only three years. Compare Hodge v. State, 631 S.W.2d 754 (Tex.Cr.App.1982); Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App.1978). A reversal resulted in Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975), where the prosecutor made a similar argument.
In Marshburn the prosecutor, inter alia, argued:
(Emphasis in original.)
This argument considered in its context was not found to fall within any of the permissible areas of jury argument outlined in Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973).
In discussing the argument by the prosecutor in Marshburn, supra, the opinion stated:
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Arnold v. State
...is the consideration by the jury of parole in assessing punishment." Rose v. State, 752 S.W.2d 529, at 535, quoting Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982). Thus the task of a reviewing court is to make "an intelligent judgment" about whether the unconstitutional instruction "......
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Rose v. State
...248 S.W.2d 748 (1952). Thus a prosecutor must not invite a jury to consider the parole law in assessing punishment. Clark v. State, 643 S.W.2d 723, 725 (Tex.Cr.App.1982); Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975). While decisions collected by the Court in Heredia v. State, 528 S.......
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...punishment." Rose v. State, 752 S.W.2d 529, at 535 (Tex.Cr.App.1987) (Opinion on original submission), citing Clark v. State, 643 S.W.2d 723, at 725 (Tex.Cr.App.1982). In a capital case in Texas, however, the jury does not "assess punishment." See Boyd v. State, 811 S.W.2d 105, at 120 (Tex.......
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