*1 CADENA, C.J., and Before BUTTS and CLARK, JJ.
OPINION BUTTS, Justice. conviction appeal
This is an from a attempted capital murder. The court en- appellant, sentenced conviction, ninety-nine by hanced (99) years’ imprisonment. We affirm judgment. of error
In his first the trial court erred not alleges discharging because prosecutor during following comment panel. voir dire we do you something “If think of would have liked to prove not might remember proven, you have heard out playing by the rules set that we are and the Code of Crimi- in the Penal Code governed to be nal Procedure. We have them care- rules. Please follow by those *2 fully. Many placed in that it addresses jury argument, juror say, times a will ‘Did the defendant have a record? criminal dire, voir not and the comment made there Did you—why you didn’t us about tell actually did indicate there inadmissible or, that?’ ‘What is that Ladies all about?’ justify finding evidence which would a of Gentlemen, rule, general and as a guilt against particular that defendant. only that allowed to time State is following colloquy further We note bring up criminal records of defend- occurring during before us later the record the punishment phase ant is at of the dire: voir trial.” it in record. I want THE COURT: Appellant’s objected generally counsel that (A panel? jury had you want a new Do the statement jury.” “tainted the obtained; however the yet been not objection court overruled the instructed but on that several court was concerned panel that the jury would take testimo- excused.) might be panel ny only from the and the witness stand Yes, (Defense): MR. I do. TAKAS attorneys’ statements were to be not taken as evidence. The court overruled a motion will with go We (Defense): ROUSH MR. jury panel. dismiss the panel. this Appellant contends that the above state THE have two of them COURT: You ment constituted an assertion the State up that made their say they have that a prior had criminal record. minds, that be fair and they couldn’t State, Cadd v. In 587 S.W.2d impartial. taking precau- I am these (en Cr.App.1979) banc) made tions for his sake. the following statement on voir dire exami nation: challenge can MR. HAMPTON: He for And it may your become responsibility cause. individual, penalty against assess a an go through MR. would all TAKAS: We again assuming you have found him this, of wouldn’t and we still have a guilty of charged. the offense as jury. Likewise, proceed- at that stage of the looking THE COURT: I am at it from his
ings you may not, or may appropri- under of view point .... circumstances, ate get to hear evidence we will select from MR. ROUSH: .... reputation about of the accused. present this jury panel. also may There be evidence a prior about record, criminal assuming present it is an want this that THE COURT: You individual who has one. jury panel?
The court found no error in challenged JIMENEZ: huh. MR. Uh Sure. statement in that it did not inform the stay He said he wants to MR. TAKAS: panel particular defendant on trial with it. prior had a criminal record found Do I understand cor- THE COURT: the statement was a explanation correct of there, rectly Jimenez? Mr. (Vernon Tex.Code Crim.Pro.Ann. art. 37.07 Yes, Your Honor. JIMENEZ: MR. State, Woods 1974). citing In prospective of the jur- Because number 901 (Tex.Cr.App.1978), the found court cause, ors who were five excused addi- prosecutor’s statement did not indicate brought tional veniremen were into the the defendant criminal proceedings, later in the courtroom record which could be during was selected. punishment phase. The was con- comment strued to proper scope be and within the conclude, record, We in view the voir dire examination. any predicament appellant may in which
Appellant’s
found
Stearn
upon
reliance
himself with
1. The use in the case of was States, 78, 629, and, prejudice United 295 U.S. 55 S.Ct. 79 “in those to weak circumstances (1935) judicial repri L.Ed. mand seems facts. 1314 administer a highly probable the cause accused is so singularly inappropriate to these justified assuming we are not in its non-exist- Berger, conspiracy in United case ence.” The Court further characterized Courts, question. States involved no voir dire “pronounced persistent, as and misconduct unbeiieveably griev It was reversed because of upon jury probable with a cumulative effect prosecutor ous misconduct of the federal dur regarded inconsequential.” be which cannot as ing jury argument. [During the trial and misconduct the reversal Prosecutorial caused guilty misstating “He trial] was of facts in case, rightly and of that so. witnesses; putting his cross-examination of of cymbals employs crashing This court of things into the such mouths of witnesses which Berger disapprobation in the in- to voice our they said; suggesting by ques of had not ruffle will stant when a muted drum suf- case tions that statements had been made to him fice. court, personally proof respect out of in of no which offered; pretending was of to understand 42.12(A)(2)(c) Crim.Pro.Ann. art. Tex.Code something that a had said he witness which 1979) (Vernon provides part: pertinent in cross-examining persistently had not said and prisoner of a shall mean the release basis; Parole assuming prej upon the udicial facts not arguing ducting improper witness of legal imprisonment cus- evidence; from but not from bullying in of and witnesses; tody not be con- general, of the State.... Parole shall of con and in thoroughly mean of sentence or in a and strued to a commutation himself indecorous any clemency.... manner ... situation was one form other of executive [T]he repressive 42.12(C)(15)(f) which stem called for rebuke and Crim.Pro.Ann. Tex.Code art. and, perhaps, measures if suc 1979) part: these were not (Vernon pertinent states in cessful, granting for the of a mistrial.” parole] shall not be be [A [During jury argument], Every prosecuting pardon “The of or .. . reduction prisoner sentence attorney’s argument jury undigni- to the in the while on remain shall intemperate, containing improper fied and sinuations in- custody legal from which he of the institution mislead and assertions calculated to to the but shall be was released amendable jury the not ... He ... .... strike hard blows the Board. orders of foul ones.” The Court found in selection. Both were language cumulation the instant calculated to suggest jurors, case disclosed record: prospective to the contrary limine, to law and court’s order in the trial Judgment It is the Order and of further prior criminal rec- the Court that the defendant’s sentence ord other guilty or was criminal conduct imposed in cause number 79-CR- for which being addition to that he was begin operate (sic) shall from tried. Judgment Sentence in cause number 65573 shall have ceased oper- objectionable The first two re added.) (Emphasis ate. marks is set in Justice Butts’ out discussion In Hamm v. appellant’s of error. The first Cr.App.1974)the court determined that the contrived, by purporting to ask correctly trial court cumulated two sen juror’s question and answer a hypothetical tences pend when the initial conviction was admissibility about the of evidence of ing appeal. The rationale in that case and convictions, to tell that the state *4 others was despite cited therein that the only bring up allowed to “criminal rec outcome, is, that whether the first case was ords of the at the defendant” affirmed, reversed or the second sentence phase of the The remark was calcu trial. would become effective the moment the apprise jury panel lated to that the initial operate.” sentence “ceased to We particular criminal to apply analogy that the instant case. precluded record which was prosecutor the (cid:127) from that, disclosing because the state was re regardless We conclude of the out quired rules.” The “play by prosecu come to the parole of subsequent proceedings, the tor thus “the rules” while piously in will violated sentence this case become effective when in the sentence cause number 65573 proclaiming by himself bound them. Jus ceases operate. Compare to also Garcia legitimize tice Butts’ seeks to opinion the State, 537 936 (Tex.Cr.App. S.W.2d merely explana comment as a correct 1976)and cases cited therein. We hold that tion of Tex.Code Crim.Pro.Ann. art. 37.07 under provisions the article 42.08 the (Vernon 1974), analogizing prosecutor’s the authority trial court to had the order the remarks comments here to the made in cumulation of sentences in State, this case (Tex.Cr.App. Cadd v. 736 587 S.W.2d appellant was on 1979), State, from 569 901 Woods v. S.W.2d conviction in the earlier case. (Tex.Cr.App.1978). approach begs But that question. in jury The this case was not carefully appel- This court has to assess the punishment, prosecutor as the lant’s pro se and finds briefs that pains explain himself had taken to to the grounds of error in those briefs are either earlier; jury panel moments thus there was repetitive of his counsel’s or merit. without no to absolutely legitimate reason tell the Judgment is affirmed. jury get that it would not to hear about “criminal records of the defendant.” The CLARK, Justice, concurring. prejudicial comment was as as certainly I agree concur in the result because I State, comment in condemned Stearn 487 the appellant, expressly by accepting the (Tex.Cr.App.1972). S.W.2d 734 In Stearn jury panel moving after twice to dismiss it prosecutor during argument jury stated as prosecutor’s tainted by the statements bring the state “couldn’t all the selection, during jury objections waived the surrounding circumstances the arrest.” he had made in that previously regard. Stearn, offending Like the remark in however, I disagree strongly, an comment here was unmistakable refer attempt prosecutor’s justify remarks defendant, and qualified ence to the not a during jury as proper. selection hypothetical reference to a defendant. See State, The made improper, highly (Tex.Cr.App. Cadd v. 587 S.W.2d prejudicial during 1979); on two remarks occasions Woodsv.
Cr.App.1978). attempt distinguish may blows, The while he strike hard ishe not at Stearn on the improper liberty to strike foul ones." Ibid. during remark in that case was jury made agree judgment While I before argument during rather than jury selection us appellant must be affirmed because the is specious. accepted expressly panel after the The prosecutor’s objectiona- second of the prejudicial object- remarks were made and was, ble remarks to the if any- to, express ed I would have this court thing, prejudicial even more than the first. strong disapproval of the kind of unfair concerning When a question pro- arose during trial tactics reflected the record spective juror’s recollection that he had jury selection this case. seen coverage television news of the actual tried, appellant offense for which being was CADENA, C.J., joins concurring in this prosecutor gave personal opinion. assurance reporters present that no were “when this offense place,” although took
“there reporters been some there
when the other offenses were committed.” prosecutor’s injected remark thus into
the discussion other criminal conduct defendant, and not a hypothetical defend-
ant, suggested in unmistakable terms the offense for which CLIFTON, Appellant, John B. about be tried was not the only offense
he had committed on that occasion. JONES,
Nearly fifty Appellee. years ago James M. the United States Supreme Court prosecu- admonished federal No. 7153. they tors that a special responsibility Texas, conduct themselves in Appeals accordance Court of highest standards of and pro- fairness El Paso. fessionalism the trial of criminal cases. May pointed The court’s observations in that case are equally pertinent to the facts be-
fore us:
It fair to say that the average jury, in greater or degree, less has confidence these obligations refrain from [to improper methods], which so plainly rest
upon the prosecuting attorney, will be
faithfully observed. Consequently, im-
proper suggestions, and, insinuations es-
pecially, of personal assertions knowledge apt
are carry weight much against the
accused they when should properly carry
none. Berger States, 78, 88, United 295 U.S. 629, 633, S.Ct. (1935). L.Ed. 1314 State
prosecutors, no less than their federal coun-
terparts, should likewise to high be held
standards of fairness professionalism
and expected to heed Mr. Justice Suther-
land’s admonition government’s at- torney “may prosecute with earnestness vigor—indeed, But, he should do so.