Marshburn v. State

• Decision Date: 26 February 1975
• Docket Number: 49076,Nos. 49075,s. 49075
• Court: Texas Court of Criminal Appeals
• Parties: Tommy Preston MARSHBURN, Appellant, v. The STATE of Texas, Appellee (two cases).

Page 900

522 S.W.2d 900

Tommy Preston MARSHBURN, Appellant, v. The STATE of Texas, Appellee (two cases).

Nos. 49075, 49076.

Court of Criminal Appeals of Texas.

Feb. 26, 1975.

Rehearing Denied May 21, 1975.

Tom A. Boardman and Lawrence B. Mitchell, Dallas, for appellant.

Henry Wade, Dist. Atty. and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

Appellant was convicted of the offenses of attempted escape and robbery by assault. Punishment was assessed by the jury at 15 years for attempted escape and at 500 years for robbery by assault.

Because of our disposition of the case, no discussion of the facts in either cause is necessary. Appellant was tried jointly and concurrently with several co-defendants for robbery by assault and attempted escape.

Appellant complains that the prosecutor's argument to the jury at the close of the punishment stage of the trial was manifestly improper because it invited the jury to apply the parole law in assessing punishment. We agree. ¹ The record reflects the following argument by the prosecutor:

'The Judge has told you in his charge that You have no control over the exact term of years that these men will serve; that's to be determined by the Board of Pardons and Paroles and you will look in these judgments and you will find being sentenced from anywhere from two to five years And you say five years and two years later they are out committing another offense. Look at the records.' (Emphasis supplied.)

The objection that this argument was improperly going into how long the convicted will actually have to serve was overruled. Prior to this argument, the prosecutor made other references to the potential effect of a long term of years upon the parole authority:

'The Judge told you you can't consider how long these people are going to serve when they are in the penitentiary. I would suggest to you the only way that you are going to do any good and help us here in Dallas County is to make examples of each and every one of the five . . .

'. . . You know the big verdicts you hear about are not reasonable . . . you know no person has lived 2,000 years. . . . You know no man can live that long, but I say You have to do something to draw attention, to make these people different than the rest of the people in the jail, To make somebody, somebody who decides how long they are actually going to serve, say this is different than the rest of the life cases that we see. There is something special about this case. I can see right here by the verdict it stands out, I better look into this.' (Emphasis supplied.)

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 minds 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.

The prosecutor said, in relation to the term of years prisoners were required to serve by the Board of Pardons and Paroles, 'and you (the jury) say five years and two years later they (the defendants) are out committing another offense.' This argument demonstrated the operation of the parole laws by inviting the jury to look at records of prior offenses which had been introduced into evidence to see how long it would take for a defendant to be released by the Board of Pardons and Paroles as compared to the length of the sentence originally assessed. The effect of this argument is to demonstrate past applications of the parole law, asking the jury to increase the punishment which would otherwise be assessed, in the ratio of five to two, so that the defendants will actually stay in prison for the length of time desired by the jury.

The State contends the prosecutor's argument was a logical deduction from the records introduced in evidence. The records were not and could not be introduced for the purpose of making the calculation suggested by the State, and its argument that they should be put to such use was not a proper deduction from the evidence. The prosecutor was not recommending a severe punishment based on the evidence, 'but urged such penalty in view of how the parole law operated.' Dorsey v. State, Tex.Cr.App., 450 S.W.2d 332 at 337 (Dissenting Opinions, Onion, J., Morrison, J.)

The judgments in both causes are reversed and remanded.

DOUGLAS, Judge (dissenting).

The majority reverses these convictions without discussing the facts, without discussing the arguments of defense counsel without discussing the argument cited in the majority opinion where no objection was made and without mentioning the instruction given by the court following the complained of argument. The facts and circumstances of the case and the setting in which an argument is made should be considered before reversing a case on the ground of alleged improper argument.

Appellant and four others, Bobby Joe Bridger, Christopher Lee Warren, William Howard Key and Stephen Dwight Thompson, ¹ were convicted of attempted escape and robbery by assault. Both charges rose out of the same incident--an attempted escape from the Dallas County jail.

The escape attempt started when Marshburn, appellant, lured Officer Pickering, a guard, into a vestibule area on the pretext of getting some papers notarized. When Pickering opened the door from the safety zone into the vestibule area, Marshburn, with a pistol at his side, stepped out and said, 'Pickering, this is for real, back up against the wall.' When Pickering tried to disarm Marshburn, Marshburn shot and wounded Pickering. Pickering fell to the floor, tried to crawl away and then collapsed.

Immediately prior to the shot, Officer Smart, another guard, had entered the vestibule and walked by Marshburn and Pickering when he saw that Marshburn had a gun. Smart started toward the two and saw Marshburn shoot Pickering. Marshburn turned and then put the gun in Smart's face. He told him three times to pull the latch and let the men out of their cells. Co-defendants Warren and Bridger immediately seized him, backed him against the wall at knife point and told him to strip his clothes off. Marshburn came over and pointed the gun at Smart and Smart proceeded to strip off his trousers and shirt. In the trousers was a billfold containing $317. After Smart removed the clothes Warren took them and left.

Officer Miller was standing in the picket position on Floor 6M when he heard shots. When he saw Pickering on the floor, he set off the alarm. He turned to shut the door to the picket area and saw Marshburn pointing the gun at him. Standing with Marshburn were eight to ten prisoners including Key and Thompson. Marshburn said, 'Open up or I'll kill you.' They entered the office and jerked the telephones and intercoms loose.

Several of the prisoners placed Miller in the elevator and tried but could not operate it. They then proceeded to take Miller down the steps of the first floor. While this was going on Marshburn held a gun on Miller. The elevator would not work and the steel door on the first floor was locked. The escape attempt was thwarted. Upon this evidence the jury found the appellant and his co-defendants guilty.

At the punishment stage of the trial the State properly introduced 'pen packets' on each defendant showing their prior final convictions under Article 37.07, Vernon's Ann.C.C.P. The information before the jury for their deliberation of punishment included the following final convictions for each defendant:

(1) Thomas Preston Marshburn

(a) Swindling Under $50; convicted--June 29, 1961; sentence--1 day in the county jail.

(b) Felony theft; convicted--June 30, 1961; sentence--2 years, probated. Probation revoked March 30, 1962.

(c) Passing of forged instruments; convicted--February 17, 1964; sentence--3 years.

(d) Attempted robbery; convicted--October 21, 1969; sentence--two years.

(e) Misdemeanor DWI; convicted--January 6, 1971; sentence--fine and 30 days in county jail.

(2) William Howard Key

(a) Felony theft; convicted--March 12, 1948; sentence--two years.

(b) Carrying a pistol; convicted--February 25, 1949; sentence--90 days.

(c) Felony theft; convicted--July 13, 1953; sentence--five years.

(d) Carrying a pistol; convicted--April 3, 1964; sentence--90 days.

(e) Burglary, five counts, and felony theft; convicted--June 10, 1964; sentence on each--eight years, concurrent.

(f) Robbery, enhanced; convicted--May 21, 1971; sentence--life. ²

(3) Bobby Joe Bridger

(a) Burglary; convicted--October 4, 1955; sentence--five years, probated. Probation revoked March 28, 1956.

(b) Felony theft and burglary; convicted--March 28, 1956; sentence in each case--five years, all sentences to run concurrent.

(4) Christopher Lee Warren

(a) Robbery; convicted--August 6, 1971; sentence--five years, probated. Probation revoked April 13, 1972.

(5) Stephen Dwight Thompson

(a) Burglary of a private residence at night; convicted--September 9, 1971; sentence--49 years. ³

(b) Assault with intent to murder with malice, kidnapping, and felony theft; convicted--August 25, 1972; sentence in each--ten years to run concurrent. ⁴

At the guilt stage of the trial, it was before the jury that the codefendants were legally confined in the jail from which they attempted to escape.

Marshburn, appellant, had been convicted on February 4, 1971, of robbery and sentenced to 75 years. He was...