see, however, dissenting opinion of Judge Roberts, joined in by Presiding Judge Onion
How later courts described this case
- see, however, dissenting opinion of Judge Roberts, joined in by Presiding Judge Onion
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(dissenting).
Based on prior decisions of this Court, I cannot agree that the majority’s holding in the instant case is correct. The second argument of which complaint is made was a clear call to the jury to consider the effect and operation of the parole laws in determining the appellant’s punishment, rather than the evidence.
In Hernandez v. State, 366 S.W.2d 575 (Tex.Cr.App. 1963) the argument was as follows:
“Therefore, I say this, that I feel confident that when you send him, that when he has been rehabilitated that they will turn him loose.”
Appellant’s objection was sustained and instruction to disregard given, yet this Court still reversed.
In Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1970) the argument was:
“The Judge in his charge tells you that you are not to consider, comment or anything else upon the length of the sentence you decide to impose that this Defendant will be required to serve. This is within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and I’ll say this that if you do not give him life or 99 years in the penitentiary they zuill not he able to hold him down there until he is rehabilitated; until they themselves decide he is rehabilitated; until they decide that he has been trained and. come out into the free world and taken his place in society — •” (Emphasis added)
The majority affirmed the conviction, but Judges Onion and Morrison dissented, saying this was a call to assess punishment based on the operation of the parole law; that it was not rendered harmless by being prefaced by reference to the court’s charge; and that the instruction to disregard [which was given] would not cure the error.
The argument in the instant case is strikingly similar to that condemned by two members of this Court in Dorsey v. State, supra, and seems to be even more improper than that which required reversal in Hernandez v. State, supra. The error is compounded by the fact that appellant’s objection was overruled, so that this argument was heard by the jury without being limited by the court in any manner.
I would adopt the position of the dissenters in Dorsey v. State, supra, and would reverse this case for the reasons previously discussed.
ONION, P. J., joins in this dissent.