# 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/9684892

## 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:** Concurring in part by Baird
- **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/9684892

## 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

BAIRD, Judge,
concurring and dissenting.
I agree that no error at the guilt phase of trial was sufficient to warrant reversal of appellant’s conviction. However, for the following reasons, I would remand this case to the trial court for a new punishment hearing. Tex.Code Crim. Proc. Ann. art. 44.29(c).
Points of error four and five contend the trial judge erred in not informing the jury that a life sentence would have required imprisonment for a minimum of 40 years. The majority overrules these points on the basis of settled precedent. Ante, at 599; citing Morris v. State, 940 S.W.2d 610, 613 (Tex.Cr.App.1996); Green v. State, 934 S.W.2d 92, 105-06 (Tex.Cr.App.1996); Broxton v. State, 909 S.W.2d 912 (Tex.Cr.App.1995); and, Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995). Under our law, whether a capital defendant may bring truthful information regarding parole eligibility to the venire is discretionary with the trial judge. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Cr.App.1997); and, Walbey v. State, 926 S.W.2d 307, 313, n. 8 (Tex.Cr.App.1996) (“Texas trial judges have the discretion to instruct capital juries on the issue of parole and may find such instruction an effective means of charging the jury on the law applicable to the case.” citing Tex.Code Crim. Proc. Ann. art. 3.14).
This precedent was called into question in Brown v. Texas, — U.S. --, 118 S.Ct. 355 (1997), where four justices concurred in the denial of certiorari but recognized Texas law “[pjerversely ... prohibits the judge from letting the jury know when the defendant will become eligible for parole if he is not sentenced to death.” Brown, 118 S.Ct. at 356. According to the concurring justices, this perverse rule of law “unquestionably tips the scales in favor of a death sentence that a fully informed jury might not impose.” Id., at 356.
I agree with the Brown concurrence; it is perverse indeed when the decision to provide a capital jury with truthful sentencing information is left to the trial judge’s discretion. I would hold capital juries must be provided with accurate and truthful information regarding a defendant’s parole eligibility. Because the majority does not so hold, I dissent to the resolution of points of error four and five.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684892. Public record. Not legal advice.