Waters v. State

330 S.W.3d 368, 2010 WL 4570016
CourtCourt of Appeals of Texas
DecidedFebruary 16, 2011
Docket02-10-00080-CR
StatusPublished
Cited by28 cases

This text of 330 S.W.3d 368 (Waters 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
Waters v. State, 330 S.W.3d 368, 2010 WL 4570016 (Tex. Ct. App. 2011).

Opinions

OPINION

LEE GABRIEL, Justice.

I. Introduction

Appellant William Berry Waters, III, appeals his sentence for felony driving while intoxicated (DWI), contending in five points that the prosecutor’s remarks during closing argument at the punishment phase warrant a new punishment hearing. We affirm.

II. Background

The indictment charging Appellant with felony DWI included an enhancement paragraph alleging that he had a prior felony DWI conviction, and a habitual offender paragraph alleging that he had still another prior conviction for felony DWI. After the jury returned a guilty verdict in the instant case, the court’s charge on punishment instructed the jury that the applicable range of punishment was confinement for twenty-five years to ninety-nine years or life. See Tex.Code Crim. Proc. Ann. art. 37.07, § 4(b) (Vernon Supp. 2010). The charge also included statutorily required good conduct and parole instructions, advising the jury that the actual time Appellant served in prison could be reduced by the award of good-conduct time or by the award of parole; that Appellant would not become eligible for parole until the actual time served plus any good-conduct time earned equaled the lesser of one-fourth of the sentence imposed or fifteen years; and that parole eligibility does not mean that parole will be granted. See id. The prosecutor addressed these instructions in his closing argument at punishment. The jury assessed punishment at sixty years’ confinement, and the [370]*370trial court sentenced Appellant accordingly-

In five points on appeal, Appellant contends that the trial court erred by overruling his objections to several of the prosecutor’s remarks during closing argument at punishment.

III. Remarks About Parole Instructions

In his first point, Appellant claims that the prosecutor’s remarks, reproduced below, improperly urged the jury to consider how the parole laws would be applied specifically to him. The record transcribed during the initial portion of the State’s closing argument at punishment includes the following:

[PROSECUTOR]: ... So what do we do here? This whole thing about parole, it’s in your charge. I want you to — to look at this. It says, “Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time-off a period of incarceration imposed through the award of good[-]conduct time.” That means—
THE COURT: Three minutes, counsel.
[PROSECUTOR]: Thank you.
That means if he’s a good prisoner, if he goes down and does what he’s supposed to do, he can get extra credit. He also gets good time for any time he’s already served up until this point since this case has happened. All right? And it says that when the actual time that he serves plus the good-conduct time equals one-fourth of whatever sentence that he gets, then he’ll be eligible for parole. That doesn’t mean he’ll get it, but he’ll be eligible for parole.
It also says that the — when it equals one-fourth of the sentence imposed, or 15 years, whichever is less, that means if you give him anywhere from 60 to 99 years, he becomes eligible for parole after 15 years. Okay? And that includes good-conduct time. So if he has good-conduct time that gives him extra credit, he might — it’d be less than 15 years. Okay? You understand that?
All right. So the reality of the situation is, if you give him 60 years or more, you’re doing all that you can do. The question is—
[DEFENSE COUNSEL]: Hold on a minute. Judge, I’m going to object to that. That violates the — the—the charge of the Court. That’s not to be considered by the jury, and I object to counsel arguing that.
THE COURT: Overruled.
[PROSECUTOR]: The question is, “what statement do you want to make? ”

(emphasis added).

Appellant contends that the italicized remarks were improper because they specifically invited jurors to consider the application of the parole law to him.

In its response, the State contents itself to stand mute on the merits while arguing procedural default and harmless error. We are not persuaded by the State’s preservation arguments, and, despite the State’s underwhelming silence on the merits, because of our disposition below, we need not address harm.

The State first argues that Appellant’s objection was too general to preserve his complaint for review because he did not object that the prosecutor improperly urged the jury to apply the parole laws specifically to him; instead he objected that the argument violated the court’s charge and was something the jury could not consider. The State cites examples of cases wherein, after having overruled objections, trial courts uttered something on the record positively evincing their under[371]*371standing of what the objections were about. But our rules of error preservation require no such affirmative declarations by trial courts. At most, a trial court need only rule on an objection, either expressly or implicitly. Tex. R. App. 38.1(a)(2)(A). Moreover, even an imprecise objection preserves error when “the specific grounds were apparent from the context.” Tex. RApp. P. 33.1(a)(1)(A); see Taylor v. State, 939 S.W.2d 148, 155 (Tex.Crim.App.1996) (“Where the record makes clear that the trial court understood an objection and its legal basis, a trial court’s ruling on that objection will be preserved for appeal, despite an appellant’s failure to clearly articulate the objection.”). As the court of criminal appeals has made abundantly clear:

As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. Of course, when it seems from context that a party failed effectively to communicate his desire, then reviewing courts should not hesitate to hold that appellate complaints arising from the event have been lost. But otherwise, they should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.

Lankston v. State, 827 S.W.2d 907, 909 (Tex.Crim.App.1992).

Here, as the prosecutor discussed the paragraphs concerning parole laws in the court’s charge, Appellant objected, “That violates the — the—the charge of the Court. That’s not to be considered by the jury, and I object to counsel arguing that.” The objection is quite specific. In context, we think the trial court understood the objection as a complaint that the prosecutor’s comments urged the jury to stray from the charge’s instructions that it was not to consider how the parole laws might be applied to Appellant.

The State next argues that the objection does not comport with Appellant’s point on appeal. We have already held that Appellant’s objection, “That violates the ...

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Bluebook (online)
330 S.W.3d 368, 2010 WL 4570016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waters-v-state-texapp-2011.