The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-03-00534-CR
Jose Garcia, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 98809, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Jose Garcia guilty of murder, for which it assessed punishment
at life imprisonment and a $10,000 fine. See Tex. Pen. Code Ann. § 19.02 (West 2003). Appellant’s
only point of error complains of the prosecutor’s jury argument at the punishment stage. We will
affirm the conviction.
The court’s punishment charge included the statutory instruction on good time and
parole in effect in March 1989, when the offense was committed. See Act of May 15, 1987, 70th
Leg., R.S., ch. 1101, § 15, 1987 Tex. Gen. Laws 3750, 3765 (current version at Tex. Code Crim.
Proc. Ann. art. 37.07, § 4(a) (West Supp. 2005)). The prosecutor referred to the instruction during
the State’s opening punishment argument:
Under the law applicable in this case, the defendant is eligible possibly, if you
sentence him to a term of prison, for some good conduct time and possibly he would
receive some parole. And what the judge read to you was that you can know that fact
that he could be eligible for parole. He could be eligible for — earning good conduct
time, but you are not to consider that when you go back there to determine a number
of years that he is to serve in prison for taking the life of Tina DeLeon. You just
know that is possible. That is administered by the parole board and will not be
decided by this court, so we can’t predict how it might be administered or not, but
you are just put on notice in the charge that it is a possibility.
It does say here that you are not to consider the extent to which the good
conduct time or parole law might be applied to this particular defendant. The judge
read to you the law about the term of imprisonment, and if you choose a number of
years — I want to give you a couple of examples so that you can understand what
that really means. He would have to serve basically a quarter of the time that you
would assess for him under the laws applicable in ‘89. And that means that if you
chose to give him 60 years in prison for killing Tina DeLeon, he would serve 15.
Appellant immediately objected to the last comment: “I think she said ‘he would serve.’ And of
course that’s speculative. We don’t know.”
The court called the attorneys to the bench and admonished the prosecutor, “[T]he
way you said it, it sounded conclusively like he’d serve 15 years. Just make that clear. Do you see
what I’m saying?” The prosecutor said she did. Appellant then added the following objection,
“Your Honor, I think the prior law actually said you weren’t supposed to make any comment
regarding any kind of calculations, because there’s no way you could make a calculation, and I would
object to her making any type of calculation which would — .” The court interjected, “She’s not
making a calculation as long as she just refers to the charge and says — reads the charge and then
leaves it up to the jury. I’ll let her read the charge, which you can go through calculations or tell
them, you know, 40 years, equals 10 . . . . Just go with the law as it reads.” The bench conference
ended and the prosecutor returned to her argument:
2
Thank you, Judge. As I was saying, in the charge it clearly says if the
defendant is sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served equals one-fourth of the sentence imposed or 15
years, whichever is less. It does also say if you should sentence him [to] a term of
less than six years, he would have to serve at least two years before he would be
eligible for parole.
Appellant’s first objection properly challenged the prosecutor’s conclusive statement
that appellant would serve fifteen years if given a sixty-year sentence. The court effectively affirmed
that objection by instructing the prosecutor to clarify her remark for the jury. Appellant requested
no further relief in that regard. See Miller v. State, 83 S.W.3d 308, 319 (Tex. App.—Austin 2002,
pet. ref’d) (to preserve error, objecting party must obtain adverse ruling). Appellant’s objection to
the prosecutor making “any kind of calculations” was at least partly overruled by the court, but
whether or not that ruling was correct, the prosecutor did not pursue that line of argument. Instead,
she simply restated the express language of the statutory instruction regarding eligibility for parole.
Finding no error preserved for review, we overrule the point of error and affirm the
judgment of conviction.
__________________________________________
Mack Kidd, Justice
Before Justices Kidd, B. A. Smith and Pemberton
Affirmed
Filed: September 30, 2004
Do Not Publish
3