Jones v. State
Decision Date | 05 April 1978 |
Docket Number | No. 2,No. 54176,54176,2 |
Citation | 564 S.W.2d 718 |
Court | Texas Court of Criminal Appeals |
Parties | George F. JONES, Appellant, v. The STATE of Texas, Appellee |
Robert H. Spicer, San Antonio, for appellant.
Ted Butler, Dist. Atty., John A. Hrncir, Sharon S. Macrae and Roy R. Barrera, Jr., Asst. Dist. Attys., San Antonio, for the State.
Before ONION, P. J., and DOUGLAS and ODOM, JJ.
This is an appeal from a conviction for the offense of attempted burglary. See V.T.C.A., Penal Code, Secs. 15.01 and 30.02. Punishment was assessed by the jury at ten (10) years' imprisonment.
The appeal was originally abated, but has now been reinstated.
Appellant Jones claims that the trial court erred in failing to sustain defense counsel's objection to improper argument by the prosecution during the punishment phase of the trial. The district attorney told the jury the following:
In Jones v. State, 522 S.W.2d 225 (Tex.Cr.App.1975), it was written:
In Clanton v. State, 528 S.W.2d 250 (Tex.Cr.App.1975), the prosecutor made reference to the court's charge that the jury was not to discuss how long the defendant would be required to serve any sentence imposed, and then repeatedly attempted to get around the court's instructions by arguing, over objection and despite the court's efforts, that while it could not be discussed each juror could consider it, that it was a concern of theirs despite the instruction, etc.
It was held that the argument was not an argument to assess a proper punishment, "but was strictly an appeal to the jury to disregard its responsibility under the law to determine the appropriate punishment for the offense, and to consider 'how long the defendant will be required to serve in any sentence' the jury might decide to impose." The case was reversed.
In Jones v. State, supra, and Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App.1963), jury arguments by the prosecutor were also interpreted as urging the jury to abdicate its responsibility and set a high penalty and allow the Department of Corrections or "they" to determine the actual period of confinement. Reversal followed in those cases. Likewise in Marshburn v. State, 522 S.W.2d 900 (Tex.Cr.App.1975), the prosecutor's argument first referred to the court's charge as telling the jurors that they had no control on the exact time to be served, then told the jurors to look at records of the prior convictions offered and note that Prior to this objected to argument, the prosecutor had argued that if the jurors were going "to do any good" they were going to have to set a high penalty even up to 2,000 years to attract the attention of the "somebody, somebody who decides how long they are actually going to serve . . . ." The case was reversed.
In the instant case the prosecutor argued that the jurors "should, in deliberating as to punishment, discuss how long the defendants would be required to serve in order to satisfy the sentence imposed." The prosecutor then added...
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