Marshburn v. State

522 S.W.2d 900

• Court: Court of Criminal Appeals of Texas
• Decided: February 26, 1975
• Docket: 49075, 49076
• Status: Published

Opinions

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 he 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.

1 . We recognize from the dissent’s desire to set out all the facts of this case, although they are of no relevance to the disposition of this ground of error, that it is concerned with the fact that two senseless crimes were committed. • We were never unmindful of that fact. What is regrettable is that a prosecutor, who certainly must have been aware of the vice in his chosen line of argument, should pursue a path which could only lead to reversal and the waste of time, energy, and state funds by the requirement of a retrial of these cases. No useful or legitimate purpose was served by the argument pursued. See Boyde v. State, Tex.Cr.App., 513 S.W.2d 588; Lopez v. State, Tex.Cr.App., 500 S.W.2d 844. See also Renn v. State, Tex.Cr.App., 495 S.W.2d 922; Stein v. State, Tex.Cr.App., 492 S.W.2d 548.