# Whitaker v. State

> Court of Criminal Appeals of Texas · May 20, 1998 · 977 S.W.2d 595

URL: https://www.frixlaw.com/law-library/cases/9684891

## Case

- **Full name:** George H. WHITAKER, III, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 20, 1998
- **Citations:** 977 S.W.2d 595; 1998 Tex. Crim. App. LEXIS 63; 1998 WL 254515
- **Precedential status:** Published
- **Opinion:** Concurrence by Price
- **Judges:** Mecormick, Meyers, Keller, Holland, Mansfield, Price, Womack, Point, Baird, Overstreet
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684891

## How later opinions describe it (automated extraction)

- holding the trial court=s instruction to disregard cured error when witness testified that the appellant was abusive towards her
- concluding instruction was sufficient to cure any error in capital murder case when witness testified appellant “was physically and mentally abusive towards her” and “beat her up”
- finding instruction cured error when witness testified that appellant was physically and mentally abusive towards her
- recognizing the factfinder is the exclusive judge of each witness’s credibility and the weight to be given each witness’s testimony

## Opinion text

PRICE, Judge,
concurring.
In points of error four and five, appellant asserts that the trial court’s failure to instruct the jury that life imprisonment is equal to 40 years without parole is a violation of the United States and Texas Constitutions. In the past, I have dissented to this court’s refusal to recognize such a claim. See Raby v. State, 970 S.W.2d 1, 17 (Tex.Crim.App. 1998) (Overstreet, J., concurring and dissenting, joined by Price, J.). Recently, Justice Stevens, joined by three other justices of the United States Supreme Court, discussed the inequities in this State’s death penalty procedure. Brown v. Texas, — U.S.-,- -, 118 S.Ct. 355 , 355-357, 139 L.Ed.2d 276 (1997) (Stevens, J., opinion respecting the denial of the petition of a writ of certiorari, joined by Souter, Ginsburg and Breyer, JJ.). In that opinion, he noted that while Texas law requires that in noncapital cases the jury be given an instruction explaining when the defendant will become eligible for parole, such an instruction in capital cases is prohibited. Thus, he reasoned that the absence of such an instruction in a capital case “unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose.” Id. at-, 118 S.Ct. at 356. I agree.
Although Justice Steven’s opinion is merely a comment on the court’s denial of certio-rari, rather than a decision on the merits, it is unquestionably an important criticism of our death penalty procedure and may well be indicative as to how the Supreme Court might resolve this issue in the future. 1 How *602 ever, despite my disagreement with my brethren on this issue, I am mindful that my views are in the minority. I am also aware of my responsibility to observe principles of the doctrine of stare decisis. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-855 , 112 S.Ct. 2791, 2808-2809 , 120 L.Ed.2d 674 (1992). Therefore, until a majority of this court indicates a willingness to reconsider this issue, I will observe precedent. With these comments, I join the opinion of the court.
. Justice Stevens emphasized that "... the Court’s action in denying certiorari does not constitute either a decision on the merits of the questions presented ... or an appraisal of their importance ... Moreover, ... the likelihood that the issue will be resolved correctly may increase if this Court allows other tribunals 'to serve as laboratories in which the issue receives further study before it is addressed by this Court.’ ” Brown v. Texas, - U.S. -,-, 118 S.Ct. 355 , 356-357, 139 L.Ed.2d 276 (1997) (Stevens, J., opinion respecting the denial of the petition of a writ of certiorari, joined by Souter, *602 Ginsburg and Breyer, JJ.) (citations and footnote omitted). It is worth noting that it takes only four members of the Supreme Court to grant certiorari, the same number (including Justice Stevens) who joined Justice Stevens's opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684891. Public record. Not legal advice.