Hawkins v. State

135 S.W.3d 72, 2004 Tex. Crim. App. LEXIS 899, 2004 WL 1103290
CourtCourt of Criminal Appeals of Texas
DecidedMay 19, 2004
Docket571-03
StatusPublished
Cited by1,311 cases

This text of 135 S.W.3d 72 (Hawkins v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hawkins v. State, 135 S.W.3d 72, 2004 Tex. Crim. App. LEXIS 899, 2004 WL 1103290 (Tex. 2004).

Opinions

OPINION

KELLER, P.J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

I. BACKGROUND

Appellant was convicted of possession of cocaine. He complained on appeal that the prosecutor made an improper comment regarding the application of parole law. The Court of Appeals agreed and reversed his conviction. In its petition for discretionary review, the State complains that the Court of Appeals conducted an improper harm analysis. We shall reverse.

A. The complained-of argument

During argument at the punishment phase, the following colloquy occurred:

[PROSECUTOR]: One very important thing to remember has already been alluded to by Mr. Cooper and that is the page on the — about good time credit and parole. We can’t tell you how the Board of Prisons [sic] and Parole is going to handle this particular inmate and when he’s going to be released. The only thing we can tell you for sure because it’s the only thing we know for sure is that he will do — whatever your sentence is, you know he will do at least a quarter. When his time — plus his good time credit equals a quarter, okay, so it would be less than a quarter, but that’s what we know for sure, okay. I hope that makes sense to you. It’s pretty clearly written and explained here. But that’s the one thing that we can tell you for sure, okay. That when his good time and credit — his good time and actual time reaches one quarter of whatever you send back is what he tuill actually serve before he’s released back into your community1
[DEFENSE COUNSEL]: Your Honor, I object to that. That is a misstatement of the law.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Ask the jury to disregard that statement.
THE COURT: The jury is so instructed.
[DEFENSE COUNSEL]: And, again, your Honor, I move for a mistrial.
THE COURT: That’s denied Mr. Cooper.
[PROSECUTOR]: I’m not sure what I misstated, your Honor.
THE COURT: You said that he would be released back into the community. That is improper Mr. Ross.
[PROSECUTOR]: That was a misstatement. I did not mean to say that. That is when he will be eligible to be released. I’m sorry for that. That’s when he becomes eligible. That’s what you know for sure, okay.

B. Other relevant facts

In accordance with the law, the jury charge submitted the following instruction about parole:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good [75]*75behavior, diligence in carrying out prison work assignment, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.
It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.
Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed. Eligibility for parole does not guarantee that parole will be granted.
It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

C. The Court of Appeals opinion

The Court of Appeals held that the prosecutor’s argument was improper because it specifically applied parole law to the defendant on trial.2 It further held that the improper argument was not cured by the trial court’s instruction to disregard because the argument violated a mandatory statute.3 In support of this holding, the Court of Appeals quoted from Cooks v. State:

Generally, improper jury argument may be cured by an instruction to disregard, unless “in light of the record as a whole it was extreme or manifestly improper, violative of a mandatory statute, or injected new facts harmful to the accused.” 4

The Court of Appeals then proceeded to conduct a harm analysis under Texas Rule of Appellate Procedure 44.2(b).5

In conducting its harm analysis, the Court of Appeals applied the three-factor test articulated in Mosley v. State, which balanced: (1) the severity of the misconduct, (2) measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct.6 The Court of Appeals found the conduct to be severe because it violated a mandatory statute and because it was not an isolated incident, but was a repeated reference to how the law of parole would be applied to appellant.7 The Court of Appeals stated that it could consider additional acts of misconduct in conducting the harm analysis, and it counted four sustained objections prior [76]*76to the complained-of argument.8 The Court of Appeals stated that “[tjhese improper arguments resulted from arguments outside the record, and on how parole was applied to appellant in an earlier case.”9 In addition, the Court of Appeals faulted the prosecutor for making, after the complained of argument, “yet another improper argument on a subject outside the record to which appellant objected and the trial judge instructed the jury to disregard.” 10 The Court of Appeals did not give any additional details about these five arguments, but all five are included in our discussion in part II.B.2 of this opinion.

The Court of Appeals characterized the measures taken to cure the misconduct as “nothing more than cursory.”11 According to the Court of Appeals, the trial court simply said, “The jury is so instructed.”12 The Court of Appeals characterized this instruction as “tepid” and of “limited curative effect,” especially in light of the other improper arguments for which instructions to disregard were given.13

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Bluebook (online)
135 S.W.3d 72, 2004 Tex. Crim. App. LEXIS 899, 2004 WL 1103290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawkins-v-state-texcrimapp-2004.