# 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/9684893

## 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 Overstreet
- **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/9684893

## 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

OVERSTREET, Judge,
concurring and dissenting.
I dissent to the majority’s holding on points four and five which involve the failure to inform the jury that life imprisonment equals 40 years without parole for capital murder.
Appellant argues that a court’s charge informing the jury that life imprisonment is equal to 40 years without parole would be relevant to whether he would be a continuing threat to society. Further, he argues that without this information the jury was prevented from weighing the mitigating effect of punishment testimony.
As I discussed in some detail in my dissent to Rhoades v. State, 934 S.W.2d 113, 131-44 (Tex.Cr.App.1996), in light of the United States Supreme Court’s holding in Simmons v. South Carolina, 512 U.S., 154 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994), I believe that the United States Constitution’s guarantees of due process required appellant’s jury be informed of the 40 year parole eligibility law.
I also note that four members of the Supreme Court have recently commented upon the “[p]erverse[ness]” of our death penalty scheme not letting the jury know when the defendant will become eligible for parole if he *603 is not sentenced to death. Brown v. Texas, — U.S.-, 118 S.Ct. 355 , 139 L.Ed.2d 276 (1997). I also find rather perverse keeping jurors ignorant and uninformed of such a critical legal fact when making life and death decisions as to whether the death penalty will be assessed. By excluding the fact that life imprisonment is equal to 40 years in prison, appellant was denied due process of law.
I respectfully dissent to the majority’s discussion and holding as to points four and five. Otherwise, I concur in the disposition of all other points.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684893. Public record. Not legal advice.