# Whittington v. State

> Court of Criminal Appeals of Texas · May 16, 1979 · 580 S.W.2d 845

URL: https://www.frixlaw.com/law-library/cases/9769442

## Case

- **Full name:** Fritz WHITTINGTON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 16, 1979
- **Citations:** 580 S.W.2d 845; 1979 Tex. Crim. App. LEXIS 1442
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Onion, Roberts, Clinton
- **Cited by:** 34 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/9769442

## How later opinions describe it (automated extraction)

- holding that the State's argument that the jurors should think about the fact that they would "want to give [neighbors] an answer [they] [could] be proud of, that [their] friends and neighbors [could] be proud of" was a legitimate plea for law enforcement

## Opinion text

ROBERTS, Judge,
dissenting.
I must dissent from the majority’s conclusion that the prosecutor’s argument about “friends and neighbors” was a proper plea for law enforcement rather than an improper reference to community expectations. None of the cases which are cited deals with this distinction. Elsewhere the author of the majority opinion has dealt correctly with the distinction. In Overstreet v. State, 470 S.W.2d 653, 654 (Tex.Cr.App.1971) (Onion, P. J.), we held that the prosecutor’s argument that the jury “ ‘write a verdict of which you may be proud’ ” was “a plea for law enforcement rather than an urging of the jury to convict because of the community’s desires or expectations.” This distinction often has been made. Myers v. State, 468 S.W.2d 847 (Tex.Cr.App.1971). The holding of Overstreet, supra, that a prosecutor may plead for law enforcement does not mean that he may ask for a conviction because of community desires and expectations. See Hendrix v. State, 474 S.W.2d 230, 233, note 1 (Tex.Cr.App.1971).
“The jury, just as this Court, should never concern itself with whether the performance of their duties receives popular acclaim. They, just as we, have sworn to administer justice in each particular case. Our Constitution provides that all men, whether innocent or guilty, regardless of their station in life or the nature of the crime for which they may be accused, shall be tried by a dispassionate jury solely on the facts of that case and in accord with rules tested and proved sound by the passage of time.” Cox v. State, 157 Tex.Cr.R. 134 , 247 S.W.2d 262, 265 (1952).
The argument in this case was significantly different from the one in Overstreet, supra, and it crossed the boundary from a plea for law enforcement into a plea for a conviction because of community expectations. The prosecutor expressly told the jury to return a verdict “that your friends and neighbors can be proud of.” This reference to community desires and expectations was accentuated by the rest of the quoted argument, including the wholly incorrect statement that the jurors would be under judicial instructions to talk about “what happened.”
*849 The State disingenuously suggests that the reference to a verdict “you can be proud of, that your friends and neighbors can be proud of” implied merely “a fair verdict.” From the standpoint of the jury, it must have been inferred that a verdict “that your friends and neighbors can be proud of” referred to a guilty verdict, not a fair verdict. It is not improper to ask for a guilty verdict, but it is improper to ask for one on that basis. The trial court erred in overruling the appellant’s objections.
The judgment should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769442. Public record. Not legal advice.