Valencia v. State

891 S.W.2d 652, 1993 WL 484928
CourtCourt of Appeals of Texas
DecidedApril 5, 1995
Docket01-91-00152-CR
StatusPublished
Cited by13 cases

This text of 891 S.W.2d 652 (Valencia v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Valencia v. State, 891 S.W.2d 652, 1993 WL 484928 (Tex. Ct. App. 1995).

Opinions

OPINION

DUGGAN, Justice.

A jury found appellant guilty of delivery of at least 400 grams of cocaine and assessed punishment at 75-years confinement and a $250,000 fine. Appellant asserts two points of error on appeal. We affirm.

In his first point of error, appellant asserts the prosecutor’s punishment phase argument regarding application of the parole law constituted fundamental error.

Prosecutorial argument

During closing arguments at the punishment phase of trial, the prosecutor made the following statement about that part of the court’s charge containing the parole and good time instruction mandated by Tex.Code CRim.P.Ann. art. 37.07, § 4 (Vernon Supp. 1993):

The charge talks about the award of good conduct time to a prisoner who exhibits good behavior and parole. To caution you right now, first off, you can’t guess or estimate anything about good conduct time or parole to this guy. This is for your information, for you to know that whatever the term of years in a case that a defendant gets sentenced to, his time in the penitentiary can be reduced by the award of good time and by parole. They say the formula here as to when he becomes eligible for parole would be when a defendant has his actual time plus his good conduct time added together and they equal one fourth of the sentence. That means if there is a forty-year sentence, one fourth of that is ten years, and let’s say you get three days credit for every one you serve. That’s the good conduct time. That means you can effectively become eligible for parole on a forty-year sentence in about tivo years. That’s the way this reads.

(Emphasis added.)

Permissible jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to argument of opposing counsel; and (4) pleas for law enforcement. Albiar v. State, 739 S.W.2d 360, 362 (Tex.Crim.App.1987); Moris v. State, 755 S.W.2d 505, 509 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd). Counsel may draw all inferences from the record that are “reasonable, fair, and legitimate.” Allridge v. State, 762 S.W.2d 146, 156 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989).

Any error committed due to improper jury argument is generally waived by failure to make a proper and timely objection. Briddle v. State, 742 S.W.2d 379, 389 (Tex.Crim.App.1987), cert. denied, 488 U.S. 986, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988); Urbano v. State, 760 S.W.2d 33, 37 (Tex. App.—Houston [1st Dist.] 1988, pet. ref'd). An exception to the general rule occurs when the statement is so prejudicial that no instruction could have cured the harm. Green v. State, 682 S.W.2d 271, 295 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985); Johnson v. State, 734 S.W.2d 199, 206 (Tex.App.—Houston [1st Dist.] 1987, pet. ref'd). For example, improper jury argument is reversible error if, in light of the record as a whole, it is extreme, manifestly improper, violative of a mandatory statute, or injects into the trial proceeding new facts harmful to the accused. Jacobs v. State, 787 S.W.2d 397, 406 (Tex.Crim.App.1990), cert. denied, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185 (1990).

Mathematical error

It is not error for the State to quote or paraphrase the jury charge. Whit[657]*657ing v. State, 797 S.W.2d 45, 48 (Tex.Crim. App.1990). The charge included the same information about the parole laws that the prosecutor argued, except for his italicized statement. Although the prosecutor’s mathematical calculation was incorrect,1 it could have been cured by an instruction. Thus, counsel should have objected, and waived error in failing to do so unless some other aspect of the argument was so prejudicial that no instruction could have cured the harm.

Appellant urges that the incurable vice in the prosecutor’s argument, in addition to the mathematical error, was that it was an appeal to the jury to circumvent the court’s instruction not to discuss parole, and to assess a punishment that would compensate for the application of the parole laws.

Appellant asserts that three decisions control the disposition of this point: Jones v. State, 725 S.W.2d 770 (Tex.App.—Dallas 1987, pet. refd); Clay v. State, 741 S.W.2d 209 (Tex.App.—Dallas 1987, pet. ref'd); and Wheatly v. State, 764 S.W.2d 271 (Tex.App.—Houston [1st Dist.] 1988, no pet.). In each, he observes, the court held that the argument improperly asked for a sentence to compensate for the application of the parole law, and constituted fundamental error requiring reversal despite the lack of an objection.

In Jones, the jury charge contained the statutory instructions “not to consider the extent to which good conduct time may be awarded or forfeited,” and “not to consider the manner in which the parole law may be applied to this particular defendant.” 725 S.W.2d at 771. The prosecutor nevertheless argued:

In this particular case, because it is an aggravated robbery, any sentence that you give will be cut by effect of the parole laws.
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So, I’m asking for a twenty .year sentence, calendar time in the penitentiary. In order to accojnplish that, you must give at least a sixty-year sentence to keep him in the penitentiary for twenty calendar years. Okay?

725 S.W.2d at 721 (emphasis added.)

The Dallas Court of Appeals noted that the argument urged the jury to apply the parole law to this defendant; further, the argument was a misstatement of the law, implying erroneously “that the only way the defendant could possibly serve twenty calendar years in the penitentiary is if the jury assesses a sixty-year sentence. This is not true.” 725 S.W.2d at 772 (emphasis in original). By contrast, the prosecutor in our case did not expressly urge the jury to apply the parole law (“you can’t guess or estimate anything about good conduct time or parole to this guy”). The prosecutor stated the incorrect example of parole eligibility calculation as a hypothetical situation (“let’s say you get three days credit for every one you serve”). He did not ask the jury to assess a particular punishment to achieve a desired effect, as in Jones, because of the parole or good time laws.

In Clay, a post-iüose2 and pre-constitutional amendment decision, the charge contained the instruction that the jury was “not to consider the manner in which the parole law may be applied to this particular defendant.” Clay, 741 S.W.2d at 211. Nevertheless, the prosecutor argued that “the judge says you can consider the existence of that [parole] law and how it may affect the verdict that you give in this case”, 741 S.W.2d at 210. [658]*658The court’s charge did not state this, and the prosecutor’s argument therefore contradicted the charge.

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Bluebook (online)
891 S.W.2d 652, 1993 WL 484928, Counsel Stack Legal Research, https://law.counselstack.com/opinion/valencia-v-state-texapp-1995.