*1 72 But,
manner.”21 under the trial court’s interests than at those issue here. There- fore, I “timely pass plea” procedure, pros- respectfully dissent.
ecutor is almost superfluous. State is
entitled to offer evidence and at
the punishment stage, that is the ex-
tent of its participation process. entry plea, colloquy be- court,
tween the and defendant sentence,
determination of proposed and decision to accept not HAWKINS, Appellant, Daniel Dallas that proposed sentence are matters con- v. solely ducted judge between the trial
the defendant. The STATE of Texas. No. 571-03. states, as
Perhaps, the Court this proce- dure “provides the net plea same effect as Texas, Court of Criminal bargaining does”22 to the extent that some En Banc. criminal cases may be short resolved of a May However, full heavy trial. it does so at the expense of excluding the State from the
plea bargaining process; putting the trial
judge very process; far forward wholly insulating public, defendant’s testimony during
sworn punishment
stage from future consequences he judge’s proffered
declines trial sen-
tence plea. and withdraws his
I agree cannot that either the letter or 410(3) spirit protects appellant Rule voluntary own testimony his sworn
during punishment hearing of this
“timely pass plea” proceeding after he accept
decided that he did not wish to
trial judge’s proposed Although sentence. might
he well complaints have other valid
concerning process,23appellant should protection be allowed to claim the 410(3) designed protect
Rule which
very justice different societal and criminal Bowie, (majority opin- why "[judicial 135 S.W.3d out involve various reasons ion). negotiations plea ment in runs afoul of due process and fundamental fairness” hold Bowie, (majority opin- at 63 S.W.3d ing "practice issuing judge’s pro that trial ion). posed punishment” assessments of violated See, McDonald, e.g., Bryan Constitution). State ex rel. the Texas 1983) (Tex.Crim.App. (setting *2 Beaumont, Ap- for
Gaylyn Cooper, Leon pellant. Marshall,
Betty Atty., Assist. St. Mat- written and explained here. But that’s Paul, Austin, Attorney, thew State’s the one thing you we can tell sure, State. okay. That when his time good *3 good
and credit —his time and actual quarter time reaches one whatever of you actually is send back what he tuill OPINION your serve back he’s released into before community1 KELLER, P.J., opinion delivered the of Honor, Your [DEFENSE COUNSEL]: MEYERS, PRICE, Court which object I to that. That a misstatement WOMACK, KEASLER, HERVEY, of the law. COCHRAN, JJ., joined. HOLCOMB and
THE COURT: Sustained. I. BACKGROUND jury [DEFENSE Ask the COUNSEL]: Appellant possession of convicted of disregard that statement. cocaine. complained He on appeal that jury THE COURT: The is so instruct- improper made an com- ed. regarding the application parole of And, again, [DEFENSE COUNSEL]: Appeals agreed law. The Court of Honor, your I move for a mistrial. reversed his In petition conviction. its for THE Coo- COURT: That’s denied Mr. review, discretionary complains the State per. of Appeals Court conducted an I I’m not sure [PROSECUTOR]: what improper analysis. harm We shall re- misstated, your Honor.
verse.
THE would COURT: You said he community. be released into back complained-of argument A. The That is Mr. improper Ross. During argument punishment [PROSECUTOR]: That was misstate- phase, following colloquy occurred: say I That ment. did mean that. very important [PROSECUTOR]: One eligible is when he to be will be released. thing already has remember been sorry I’m That’s when he be- that. by alluded to Mr. Cooper and that is the eligible. you comes know That’s what on page good the—about time credit and sure, okay. parole. you We can’t tell how the Board Prisons and Parole going [sic] of B. Other relevant facts particular handle this inmate and when law, In accordance with going he’s to be released. The following charge submitted thing you we can tell for sure because parole: about only thing it’s the we know for sure is case, your
that he will applicable do—whatever sentence Under the law this is, defendant, you quar know he will do at least a to a sentenced term plus good imprisonment, may ter. When his his time time earn off time— equals quarter, okay, period imposed through credit so would incarceration quarter, be less than a good that’s what the award of conduct time. Prison sure, okay. hope good we know for I may authorities award conduct you. makes It’s pretty clearly prisoner good sense time to a who exhibits Emphasis added. law to the defen- applied parole behavior, pris- specifically out carrying diligence attempts at assignment, work further held that on on It dant trial.2 If prisoner engages rehabilitation. was not cured misconduct, may also prison authorities disregard be- trial court’s instruction con- away part any good take all violated a cause prisoner. time earned duct holding, support statute.3 length It also possible quoted from Cooks defendant will be time for which the State: by the might be reduced imprisoned jury argument Generally, improper *4 parole. award of disregard, instruction to be cured case, the law in this applicable
Under light of the record as a whole unless “in to term if the defendant sentenced manifestly improper, or it was extreme become eli- imprisonment, of he will not statute, in- parole actual time gible until the of a violative plus good conduct time served ac- harmful jected new facts 4 equals one-fourth of sentence earned cused.” Eligibility for does not imposed. parole to proceeded of then Appeals The Court guarantee parole granted. will be analysis Texas Rule a harm under conduct be accurately predicted It cannot how 44.2(b).5 Appellate of Procedure parole good law and conduct time might this he applied be to defendant analysis, its harm conducting In imprisonment, of is sentenced to term applied the three-factor Appeals of Court of will application because the these laws State, Mosley v. which articulated in test by prison and depend on decisions made (1) severity of the miscon- balanced: parole authorities. (2) duct, adopted to cure the measures may You consider existence (3) misconduct, certainty of convic- parole good law and conduct time. The of the misconduct.6 Court tion absent However, you are not to consider the to be severe Appeals found conduct may to time be good extent which mandatory statute it violated a because to this particu- awarded or forfeited incident, it isolated was not an and because You are to consider lar defendant. to repeated how the but was a reference the parole the manner which law applied appel- parole of would be law this defendant. applied particular be that it Appeals Court of stated
lant.7 The
Appeals opinion
C. The Court of
of miscon-
additional acts
could consider
analysis, and
conducting
the harm
duct
pros-
Appeals
of
held that the
Court
objections prior
it
four
counted
sustained
ecutor’s
was
because
defect,
State,
890,
(Tex.
ror,
irregularity,
that does
or variance
S.W.3d
901
2. Hawkins
99
2003).
App.-Corpus
rights
disre-
Christi
substantial
be
not affect
must
garded.”
Hawkins,
(citing Mosley v.
99
at 901
Hawkins,
Cooks,
(quoting
9. Id. 15. Id.
10. Id. 16. Id.
11.
Id.
Id.
903.
at
Edwards,
Id.
see
But
State ex. rel. Eidson v.
(Tex.Crim.App.l990)(due
process
prosecutor's
violation from
failure to
argument,
improper
mistrial for
nying
the trial court’s
a
making a mistake —was
one, in which consti-
motion for mistrial. Under
least in cases like this
denial
circumstances,
proper
issue is
implicated.
those
rights
tutional
are
mistrial
grant
the refusal to
whether
Moreover,
agree with the
we also
an
of discretion.19
abuse
appropriately
Appeals that an
Court of
Nevertheless,
question
ap
Mosley
factors
version of
tailored
grant
a mistrial
have been
whether
should
non-capital
punishment
trial
plies in
most,
all,
if not
of the same
ed involves
already applied
context.
phase
We
analysis.
considerations that attend a harm
Mosley
factors
version of
tailored
remedy
A mistrial is the trial court’s
trial,22
capital
phase
of a
punishment
improper
prejudicial
conduct that
is “so
impediment
applying
see no
we
expenditure
of further time and ex
proceedings
punishment
factors to
these
and futile.”20 In
pense would wasteful
Therefore,
apply
we
non-capital
case.
effect,
appellate
the trial court
conducts
for punish
as it has been tailored
test
determining
function:
fac
We balance three
proceedings.
conduct
so harmful that the case must
(1)
severity
of the misconduct
tors:
course,
analysis
harm
be redone. Of
(2)
measures,
effect),
(prejudicial
curative
light
trial
cura
conducted
of the
court’s
(3)
certainty
punishment
Only in
tive instruction.
extreme circum
(likelihood
assessed absent
misconduct
stances,
incurable,
prejudice
where the
assessed).23
punishment being
of the same
required.21
will mistrial be
*6
recognized
The federal
the
courts
Severity
B.
of the misconduct
interplay between a trial court’s curative
statutory
1. Effect of
violation
appellate
actions
an
harm anal-
court’s
however, with the
disagree,
We
in
ysis
context. This Court
appli
Appeals’s
construction and
joined
applying
recognition by
has
that
First,
cation
factors.
the Court
of these
precedent
argu-
in
federal
connection with
misapprehend
appears to have
Appeals
analyzed
Rule
ment error
is
under
“severity of
mis
ed
nature of the
44.2(b).
analysis
harm
for-
Employing a
Mosley,
factor.
In
we identified
conduct”
in evaluating
ruling
mula
trial
court’s
“the
“severity of
misconduct” with
especially
on a motion for mistrial seems
magnitude
prejudicial
effect of
context,
in
appropriate
Martinez,
In
prosecutor’s remarks.”24
the end of
where misconduct occurs near
we
phase progeny,
Mosley’s punishment
appel-
giving
trial court an
case—
mis
“severity
of the
equate
continued
eye”
late-like “bird’s
view the situation.
prejudicial
with its
effect.25
Mosley
conduct”
agree
We therefore
fac-
Prejudice
clearly
the touchstone
tors should be used to evaluate whether
in
To
Mosley
first
test.
trial
its
de-
factor
court abused
discretion
Simpson,
at 272.
if
21.
119 S.W.3d
recuse himself could result
reversal even
recusal).
power to
trial court lacks the
force
677,
State,
v.
17
693-694
22.
S.W.3d
Martinez
State,
262,
Simpson
272
(Tex.Crim.App.2000).
(Tex.Crim.App.2003).
(Tex.Crim.App.1999),
547,
567
20. Ladd v.
3
denied,
U.S.
t.
529
S.W.2d at 259.
983
cer
(2000);
L.Ed.2d 487
120 S.Ct.
S.W.3d at 693.
Simpson,
S.W.3d at 272.
sure,
outrageous
particularly
jan,
objection
alleg-
offensive or
the defendant’s
gives
conduct generally
edly improper argument
rise to a natural
was overruled.29
stated,
discussion,
inference of prejudice
During
and can be consid-
its
the Court
such,
prejudice
ered as
improper argument
even when
“An
constitutes re-
apparent
light
otherwise
from
But
the record.
versible error when in
of the record
the Court of
assessing
manifestly
erred
as a
it was
or
whole
extreme
“severity”
statute,
in isolation from prejudice.
improper,
mandatory
violative of a
Appeals’s opinion suggests
Court of
injected
or
new facts harmful to the ac-
prosecutorial
that the
into
misconduct was “se-
cused
the trial proceedings.”30 No-
simply
vere”
it
because
violated a “manda-
where
discussion did the Court
tory
In
Appeals’s
statute.”
the Court of
disregard.31
mention instructions to
There
estimation,
to,
fact
prevented
objection
alone
no reason
since the
being
Moreover,
an
cured
instruction
dis-
overruled.
the word
regard.
prohibition’s
“thus,”
But a
source—
Court then launched immedi-
statute,
rule,
“mandatory
whether
it be
common ately
or
from its
statute” state-
particularly
law—is not
relevant
how ment into
discussion about whether the
prejudicial an argument
prosecutor’s argument
improper,
is or
if
as
disregard
argu-
can
cure
the Court’s statement
related to error
prejudicial
harm,32
ment’s
effects. A
than
prohibition
rather
and the Court ulti-
begins
as a common law requirement mately
prosecutor’s
concluded that the
ar-
or
court
later
gument
rule
become a statute
was a
proper plea
law enforce-
Further,
vice
Nor
“mandatory”
versa.
is the
ment.33
the Court’s statement
nature of a statute particularly
relevant.
of a
was dicta because violation
If a
imposes requirements,
case, and,
statute
then it
was not
in the
statute
at issue
mandatory,
really
and most criminal statutes
the Court’s statement
did refer to
harm,
could be properly characterized as such.
it was dicta for that reason as well.
fact,
“mandatory
mantra
statute”
Kinnamon did address
effectiveness
*7
disregard.34 But,
that the Court of
on
cites is based
of an instruction to
omit-
lineage
questionable
and is
ting
“mandatory
inconsistent
reference to a
stat-
precedent
ute,”
more
opinion
with
recent
and with
the rule for
stated
revers-
changes in
appellate
argument
“in
rules. While
ible
error as:
order for an
say
Cooks did indeed
that
to
improper argument
violations
to rise
a level man-
reversal,
mandatory
are
from
exempt
dating
argument
statutes
must be ‘ex-
power
curative
improper,
of instructions to disre-
or manifestly
inject
treme
or
”35
gard,26
opinion
cases
cited
that
new and harmful facts into evidence.’
Moreover,
proposition Borjan v. State27
Kinna-
contrary
language,
to Cooks’s
—
support
mon v.
not
In Bor-
an
suggested
State28—do
it.
Kinnamon
that
instruction
Cooks,
Id., passim.
.26
27.
30.
Id. at 56-57.
remark.”42 While
disregard
to
types
to
cure the two
disregard can
ambiguous,
Wesbrook
cited,36 Thompson
egregiously improper
Wesbrook,
clearly
odds
Cooks.
improper argument
and in fact did cure an
improper
refrain that
the Court recited the
facts into the case.37
injected
that
new
“unless, in light
argument is not reversible
“mandatory
point
also
out that the
We
whole, the
as a
the record
be-
language
statute”
Cooks
dicta
violative
manifestly improper,
extreme or
mandatory
no
statute
violated
cause
statute,
injects
or
new
aof
that
by
arguments in
case.38
the State’s
the tri
accused into
facts harmful
So,
dicta based
statement was
Cooks’s
argu
though
prosecutor’s
al.”
Even
upon misreading of dicta in other cases.
case, the
injected new
into the
facts
Moreover,
anomaly
an
Cooks seems to be
impropriety found that
in a line of cases
have recited
trial court’s instruction
cured
“mandatory
language
statute”
connec-
emphasized that
disregard.44 The Court
not
tion
error” but have
with “reversible
warrants
flagrant
“offensive or
error
contended that such error is incurable.39
been an instruc
reversal when there has
Kinnamon,
disregard”
Aside
two cases
and the comment before
tion
flagrant
was “not
that the instruction
of an in us
so
addressed
effectiveness
disregard
was ineffective.”45
disregard
are
struction
this context
Thompson v.
v.
State40 and Wesbrook
However,
pro
refrain is
three-fold
Thompson
ambiguous
State.
at best
simply
when it
refers to
blematic even
because,
citing
after
types
the three
rather than to incurable
reversible error
reversibly
arguments,41
lineage
traces its
back
error. The refrain
error,
State,46
Court found
especial
Vineyard
“no reversible
v.
v.
through Todd
State,48
State,47
ly
light
ultimately
of the court’s
to Bowlin
statute,
(2) it
prejudicial,
36.
is violative of a
or
Id.
(3)
injects
into the
a new and harmful.fact
("Although
37.
Id.
the State’s
further
comment
case”).
already
strained
tenuous connection be-
presented
ap-
as
tween the evidence
and an
added).
(citation omitted; emphasis
propriate
summation
deduction from
omitted],
inject
evidence
it did
[citations
not
29 S.W.3dat
any new or
facts
cured
harmful
instruction”).
court's
Id. at 115-116.
38.
which refers to
collated in
proper:
cases
Branch’s had been held
comments
evidence,
annotated
upon
Penal Code.49Some of
arguing
the other
facts in
the law as
along
way
facts,
cases cited
omit the “man well
drawing
as the
reasonable de-
datory
part
statute”
the refrain.50
testimony
ductions from the
adduced at
trial,
seeking
legitimate-
motive
facts
But the real problem
by
is discovered
ly
evidence,
in
explaining
jury why
case,
examining
In that
Bowlin.
the pros-
the court
required
charge
on all is-
ecutor argued that the defendant’s brother
sues, telling
jury
not to arrive at a
did not testify for the defendant because
chance,
by
telling
verdict
lot or
jury
he had
with the
participated
defendant in
confine
to the testimony
themselves
admit-
committing the crime.51 The Court de-
court,
charge
ted and the
telling the
clined
argument
to find
improper:
evidence,
jury to discuss facts not
“Viewed in
light
the entire record
and arguing
pardoned
that a
pri-
witness’s
regard
we cannot
the argument com-
felony
or
conviction affected his credibili-
plained of as
improper.
whatever form
ty.55
it
been stated to the
appears
Thus,
have been
conclusion
apparent
deduc-
it is
the Court’s
ible from the evidence and not the asser-
statement
regarding
arguments,
extreme
tion of some
Immediately
statutory violations,
new fact.”52
and new facts related
error,
following this pronouncement that
ar-
not harm. The Court
saying
gument
said,
proper,
the Court
“It
that a prosecutor’s argument
(1)
(2)
only in
extreme cases
this court
would
extreme cases
if a statute
(3)
upon
violated,
feel called
on
to reverse
account of were
or
harmful facts were
argument
injected
of counsel unless he had violated
into the case that were not in the
some statutory provision
injected
into
record.
prosecutor’s argument
the case facts of a harmful character
proper
which
because it
within
fell
none of these
were not in
support
As
categories. Although
evidence.”53
our
juris-
current
statement,
prudence
the Court
relied upon
analyzes argument
error
de-
many
cases “collated Mr. Branch in
termining
his
whether an
falls with-
C.,
areas,
Ann. P.
page
under Sec.
An in
permissible
370.”
four
as opposed to
examination of the
edition of
1916
Branch’s whether it
three impermissible
falls within
Code,
I,
areas,
Annotated Penal
Vol
p. 207 re-
mode of analysis began
current
§
State,
veals a
370
titled
“Proper argu-
that is
1973
Alejandro
which
54
ment.”
together
annotations
this section
drew
various authorities into the
all involve
types
different
current
framework.56
Bowlin,
49.
248
at 404.
Id. at
S.W.
Kinnamon,
(no
89
reference
to violation of
statute as a source
State,
error);
of reversible
Kerns v.
P.C.,
I,
370, p.
§
54. Branch's Ann.
Vol.
(Tex.Crim.App.l977)(same);
(1916).
358, 361,
Stanchel v.
89 Tex.Crim.
*9
120,
(1921)(same);
S.W.
122
Henderson v.
55.
Id.
66, 68,
793,
76 Tex.Crim.
172 S.W.
795
Cooks,
(1915)(same).
844
See
S.W.2d at 727
Todd,
Kinnamon);
(citing
51.Bowlin, 403. 248 S.W. at say us we cannot the before in the From record of the confusion lies
Perhaps some unwar- stop complained did not was argument fact that the Bowlin Court the § its ranted, its 870. It continued harmful char- citation or manifest of such in a differ- by quoting passage a discussion a Imme- as to reversal.”59 acter demand Branch’s annotations indicat- ent section of supporting and diately this sentence after that, argument improp- if an were ing even citations, the three- the Court introduced er, it would also to be harmful Bowlin, which fold refrain derived “It further stated merit reversal: observe refers careful reader should the that, page him under Sec. at argu- “improper rather than “argument” a authorized ‘Before reversal would be ment”: argument of on of improper even account that only rule to be think the safe We counsel, it clearly appear that must state’s argument an court not hold should improper that the remarks were and unless it is to be error reversible were character they of material language the com- extreme cases where as the cal- such under circumstances were manifestly improper, harm- plained of is injuriously rights the culated affect ”57 a mandato- ful and or where prejudicial, Perhaps the the Court [accused]’ violated, or ry provision of statute clearly failed to between error distinguish injected into and harmful fact some new harm, relating perhaps passage or the the case.60 simply to harm as an after- added event, §
thought. passage its focus The Court’s discussion shows entirely an test harm stated different argument at of the propriety on —or has than three-fold refrain that most, propriety argument on cropped up in later cases. not, as its harmful combined with effect— That Bowlin was concerned court harmfulness suggest, later cases on the most, harm with error —or error and already has deter- argument an been together, distinguishing without between improper. mined to be supported by the two—is further phrasing of negative also note the We argument Court’s treatment issue not Vineyard: The Court did the rule in case, In that Vineyard. the defense ob- an reversible error say argument was jected prosecutor’s argument, but met; of the three conditions were one the trial court declined to issue instruc- reversible error said the was not initially disregard.58 tion to This Court were of the three conditions unless one phrased argu- issue as language: contained similar met. Bowlin a refer- proper, then added would result extreme ence harm: “Whether or a statute were violated necessarily de- reversal unless proper improper must new, injected. As facts upon particular prejudicial facts of the case. pend opinion added). wording Vineyard, 550. The 257 S.W. at (emphasis 57. Id. The actual slightly quotation from the in Branch differs on whether this means does elaborate opinion: can "Before reversal Bowlin objection was “overruled.” Id. improper argument of had account of on counsel, clearly appear it must State's they were of remarks were such as a material character and under Stanchel, (citing Vineyard, S.W. at 550 injuriously circumstances were calculated added). Henderson, )(emphasis and Bowlin rights Branch’s affect defendant.” P.C., I, 361, § p. Ann. Vol. *10 82
phrased, three-fold refrain also note that three-fold We refrain necessary, originated invoked cases before conditions decided the for- but not mulation the current harmless sufficient for reversal. error errors,64 relating rule to nonconstitutional wording The relevant of the three-fold precedes and in fact previous harmless refrain has mutated from “statute” Bow- error rule for all errors.65 We conclude lin, “mandatory provision of a statute” “mandatory part statute” in Vineyard, “mandatory statute” in has no place refrain in our current harm- Similarly, later cases. the focus of the less error scheme.66 refrain through years has shifted error in Vineyard, Bowlin and to harmful prosecutorial arguments 2. Other cases, error in Todd and later to incurable must also with the Court of disagree We Moreover, error in Cooks. the “mandato- Appeals’s the effect of the contention that ry statute” portion of the refrain before us was some- always has been dicta. We are not aware magnified by how other five any reversing solely decision a case objec- to which the trial court sustained because the error involved a violation of a tion. “mandatory” regard statute without first for an objection sustained upon the error had influence package deal referenced jury’s decision. twenty years offenses. The three
Moreover, pen packet idea that there that violation of a does not show “mandatory plea agreement, ap- show that statute” but it does constitutes automatic pellant pled guilty and received concurrent reversible error developing contradicts our agree- sentences. Whether there was an jurisprudence. harmless error Almost no apparent ment for these sentences has State, twenty years ago, Almanza v. we parole argu- relevance to prosecutor’s decried a “to trend label certain errors ments. While one of the three sentences automatically ‘fundamental’ then reverse twenty years was for five rather than regard convictions without nature years, prosecutor’s mistake in refer- and harm of the error in the case.”61 ring twenty-year to three sen- concurrent State, further, Cain v. holding we went rather, tences, twenty- than two concurrent that, federal aside from constitutional er- year year sentences and a concurrent five rors Supreme labeled as sentence, is of no significance. real structural, no error is immune from a Cain, analysis.62 harm Relying upon we objection per- The second sustained have held that “violation of a prosecutor’s tained to the comment that not, itself, statute does call system “back then the a little differ- 63 reversal of a conviction.” ent.” sustained the When trial court 157, 81(b)(2), (Tex.Crim.App. 61. 686 S.W.2d 172-173 65. Former TEX. R. APP. P. effective 1985) 1, September 262, 1997). (Tex.Crim.App. 62. 947 S.W.2d 264 State, 443, Taylor S.W.3d 66. See long- (Tex.Crim.App.2003)(pre-rules cases no (Tex. Ford v. controlling er errors un- for nonconstitutional Crim.App.2002). rules). der new 44.2(b), Septem- R. P. TEX. APP. effective ber *11 conveyed, and was system that information objection and how the was before asked jury the to trial court did instruct different, re- the accurately the prosecutor point, the to disregard the remark. More sponded range punishment of was the connection between apparent there is no twenty years, range punish- five to of complained-of the type remark and currently That of ment that does not exist. parole. range in the remark about punishment of reflected offenses, judgments prior on those made in these five Many points the of therefore, is not outside the record. opposing responses valid to remarks were an re- objection The third Even when the arguments.68 sustained counsel’s comment, proper, they “But the Parole interrupted strayed marks what was and, decided,” regard appellant’s egregious Board with to with particularly were prior twenty-year though exception Even of third com- possible sentences. the the ment, complained- there no evidence of the Parole to what had no relevance the decided, ap- argument Board there is evidence that about parole. of pellant early was released on his sen- repeated Isolated v. the
tences. A mere reference to Parole significant, Board cannot be said to be disagree Ap- the We also early when the evidence about the release that the error was not peals’s contention was admissible. isolated, The lower part pattern. but nature of misperceived court has both the objection The fourth was for a sustained the objection and nature the appellant’s appellant “bargained comment by prosecutor. Ap- made the got years 1981.” That comment objected that the was a pellant as to supported accurate and the record not that was an law,” was, “misstatement five-year punishment perhaps, the attempt get jury apply on of a outside record the existence latter com- parole appellant. Again, law bargain. agree- the existence of an by appel- defaulted plaint procedurally inconsequential. ment was objection.69 it in lant’s failure to raise an objection The final sustained concerned former, complained-of argu- As for the prosecutor’s jury admonishment only in fact ment was misstatement prosecutor to reach a verdict. That parole prosecu- made the law about tell failure reach started to appears to have acci- tor. And it been case to the verdict would cause the correctly stated the dent. particularly prejudicial, tried is not again ar- complained-of before the law moments especially light it is improper, even his corrected misstatement gument and disregard.67 court’s the trial court it out. pointed after trial hung jury widely It is known that a will complaint preserved had further Even if the Even if a been proceedings. result in parole law to jurors guilt improperly applying not clear on about complained-of repeated, appellant, would have to be proceedings that occurs. interrupted instance which prosecutor’s remark was also (Tex. (a)(l)(A)(objection APP. 33.1 69.TEX. R. P. 67. Brown ruling Crim.App.1985).' grounds with sufficient must state specificity to make court aware of trial Martinez, (mildly at 693 See complaint). improper comment not harmful where one). point of comment was valid main *12 specifically provides The law that jury failing give any weight the erred in parole the of prosecutor’s apology consider existence law retraction. Al- and and good punishment time in its making though prosecutor’s a self-corrective action determination; jury simply prohibit- carry the might weight the as a trial same ed from considering parole how it disregard, law and court’s instruction to is never- good particular time be to a applied would theless a relevant consideration deter- jury charge can, defendant.70 And the mining appropriate included harm and in the circumstances, an instruction this effect as well improper as the render an com- portions good other parole time and not a harmless.71 And this is case in by law instructions required statute. It which prosecutor’s the retraction was the improper prosecutor was not the action. curative accurately the given jury restate law the Further, also Appeals the Court of erred charge nor was it prose- the in failing charge. jury consider the cutor to the jury ask to take the existence jury on charge pa- instructed the properly of that law into assessing account when role instruct- eligibility properly times and punishment. good jury ed the not to consider how time parole applied appel- and law would be C. Curative measures lant. disagree We also with the Court of Ap- factor, Finally, Mosley the first as with peals’s characterization instruction Appeals’s analysis the Court of the sec- jury “the so as a “tepid” instructed” by mispercep- ond factor undermined its “limited curative effect.” objection. tion of of appellant’s the nature When asks for particular counsel instruc- objected Appellant prosecutor that tion and the trial court accedes to the misstated the law. The misstatement request by saying jury “the is so instruct- appellant would be after his released ed,” that instruction will in most cases be flat good equaled time time one-fourth and considered effective to the harm cure objection of his sentence. defense Moreover, an improper argument. sus- this was misstatement was Court of Appeals’s statement that this was tained, jury court the trial instructed the only by curative action taken the trial it, prosecutor disregard and when factually court is inaccurate. When the misstated, asked he had the trial what prosecutor misstated, asked what had he specifically prosecutor court informed responded, the trial court “You said he it im- that was misstatement and would released back into communi- proper. being of what he Upon informed ty. So, improper.” That is the trial court misstated, apologized had the prosecutor admonition, actually gave an additional and his Under corrected misstatement. pointing specifically prosecutor to what the circumstances, surely un- jury those said that wrong. This admonition prosecutor derstood had misspo- meaningless does not somehow become be- ken, especially since had prosecutor prosecutor. cause was elicited made a the law mo- correct statement of Moreover, prosecutor apolo and retract- again ments before did so Moreover, gized ing jury and corrected himself after this addi the misstatement. charge clearly accurately tional admonition. The set forth the PROC., See Canales v. 70. TEX. CRIM. Art. CODE 37.07 695- 4(c). § (Tex.Crim.App.2003). instructions, the court two immediate law, with which would disabused apology appellant would auto- with notion he matically retraction, jury charge at the time be- be released *13 eligible parole. came of law and an admo- correct statement good time and nition to how determine however, if, Even we considered the appellant. And apply to parole law would improper at- prosecutor’s comment as an deadly weapon a appellant’s possession of jury of tempt get apply to to law string present plus prior in a of offense time to we have good parole appellant, and handily jury’s explains convictions a com- egregious found more direct and in eighteen year sentence this case. Un- to cured that effect circumstances, trial court was der disregard.72 that its instruction believing reasonable Certainty punishment D. of assessed appel- and that disregard was effective prosecu- prejudice lant suffered no Appeals The Court of found punishment assessed was not certain ab- tor’s remark. We conclude arriving sent the misconduct. did its the trial court not abuse discretion conclusion, the lower court considered request for a mistrial. denying a (possession nature of of small the offense of of judgment Appeals The the Court contraband) amount of and the amount of and the case is remanded reversed years, punishment imposed (eighteen two remaining appellant’s consideration maximum). short of the But the Court of point of error. Appeals appellant’s nu- failed consider prior possession merous convictions: J., WOMACK, concurring opinion filed a marijuana, selling marijuana, robbery by COCHRAN, JJ., in which and HOLCOMB assault, robbery, escape, aggravated deliv- joined. substance, a ery of simulated controlled possession of a controlled substance. J., JOHNSON, concurring filed a These from 1971 to offenses stretched opinion. 1998, and some committed before the punishment expired. on others had Those WOMACK, J., concurring opinion filed a likely are a much more prior convictions COCHRAN, JJ., in which HOLCOMB lengthy reason for the sentence than joined. pa- corrected misstatement of the law of Court, join opinion I of the which role. the harmful- lays to rest the notion that The did not Court also con- depended way in some on ness an error appellant possessed sider the fact that “a contrary it was during deadly weapon firearm — —a very “mandatory The term stat- statute.” weapon And this present offense. be- thought ute” the absence indicates bullets, point loaded with hollow which the hind it. jury particularly dan- could believe were opinion mentions another Court’s gerous. that, although is not essential dictum Balancing E. the factors decision, is today’s as nonsensical as I to that which “mandatory statute.” refer and not The error isolated jurispru by the calls “our current was taken egregious. Curative action State, (Tex. Crim.App.1989). 72. Brown v. evidence, “analyzes argument
dence” that law error distinguishing determining whether an evidence from hypothetical falls cases to which areas,” within four permissible apply. the charge might “mode of None of these analysis began Alejan Alejandro list, 1973 with [that] are on dro v. together which drew I’ll wager various that a case has never been tried authorities into current framework.”1 to a in which at Texas least one made, them has not been and made with opinion majority for a narrow unquestioned They propriety. do not Court in Alejandro said: bring testimony unsworn jury. before the *14 stamp approval To receive of the of this court, jury need arguments to be within these, unquestioned propriety of (1) the areas of: summation of the evi- other, arguments why they went dence, e.g., decisions]; to two [citations unnoticed collector eight the of the (2) reasonable deduction from the evi- appellate that were in decisions cited Ale- dence, decisions]; e.g., to two [citations jandro. Appellate opinions can be about (3) answer to of opposing only complaints rulings on that parties counsel, decisions]; e.g., to two [citations trial, made at narrow grave classes of (4) enforcement, plea e.g.,[ci- for law court mistakes a trial committed with- argu- tations to two decisions]. complaint.3 out If it were true that in all ments go beyond these areas too the of Court appellants decisions this com- unsworn, place jury often the before unsuccessfully plained only about four believable, most testimony times of the arguments, justify classes of that could not attorney.2 the four conclusion that classes of This surely is one of the most influential can complaint. withstand paragraphs jurisprudence, in having our About many arguments, complains. no one (or quoted closely been paraphrased) hun- Trying to class of proper define opinions dreds of times in the of this court procedures by looking at the of decisions and the courts of Its appeals. usefulness appellate trying like to courts is describe has not been much marred its two people by looking the health of a into untrue, obviously flaws: it is and it is hospital. problem, If is no there most logically invalid. go place. cases don’t either No one Anyone made, ever who has or even statement, would made in believe the reli- to, in listened a criminal trial hospital patients ance on all survey knows that there are more proper argu- state, the “All fall within four Texans ments than the four are listed in ill, injured, classes of health: Alejandro. I shall mention seven that are pregnant, It might and well babies.” be every made in trial: thanking almost hospital prepare wise for a itself for jury, telling procedure what jury cases, those kinds of that’s not taking telling now place, what deny that trying same as other kinds of procedure will take when the place argu- people population. are concluded, re-reading portions court, charge Alejandro I think explaining of the we have survived dictum, charge layman’s language, applying despite falsity and fallacious- its Ante, State, (italics omitted). generally at 80 3.See v. Marin 851 S.W.2d 275, 1993). (Tex.Cr.App. 277-80 State, Alejandro 493 S.W.2d 231-32 1973). (Tex.Cr.App. (1981) subsequent sentences ness, get ingly lower because most of the serious cases plea bargain with Jef- was the result of I treatment. But would welcome proper in- County. appellant If received ferson about the correction its statement sentences, it was because creasingly lower need “arguments “areas” that four juries, prosecutors in Jef- judges, stamp approval in” to “receive the and/or in- determined that County ferson court,” today’s just as I welcome deci- creasingly penalties appro- smaller to end the confusion about “mandato- sion charges brought by Jefferson priate to the ry statutes.” unworthy County. duplicitous It is a act J., JOHNSON, concurring filed a and then create a situation state to opinion. deplore its existence. judgment
I concur Court. closely note how separately
I write treads to the ethical line. (Tex.
Mosley v. *15 majority, this
Crim.App.1998), cited also noted the decision United Ortiz-Arrigoitia, F.2d States Ronald Curtis Estate (1st Cir.1993), involving allega a case TEAL, Deceased. striking tions of at the defendant over the appellate shoulder of counsel. “The court No. 13-01-133-CV. persuaded ‘not that these comments Texas, Court of prejudicial require so as to reversal.’ Christi-Edinburg. Corpus But, added, at 441. the court do Id. “We why, ... after not understand numerous 28, 2002. March court, prosecuting warnings En Banc Reconsideration attorneys persist spiking argu ... their 23,May Denied put with their cases ments comments ” original.) (Ellipses at risk.’ might be said of the case before us. same numerous, transgressions, while disregard, tepid,
the instructions to while reversal,
may not merit is difficult why, objec five sustained
understand after arguing
tions for outside record court, by the trial
several admonishments persisted in such behavior. prosecutor
Further, respect offenses, I find prior
made about it disin-
genuous Jefferson complain appel-
County successively sen-
lant had received lower subsequent for each offense. The
tences prior were all
complained-of sentences County. According to the
from Jefferson those at least one of increas-
prosecutor,