# Smith v. State

> Court of Criminal Appeals of Texas · March 8, 1995 · 898 S.W.2d 838

URL: https://www.frixlaw.com/law-library/cases/9772020

## Case

- **Full name:** Robert SMITH, A.K.A., Robert Lee Johnson, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 8, 1995
- **Citations:** 898 S.W.2d 838; 1995 Tex. Crim. App. LEXIS 26; 1995 WL 92795
- **Precedential status:** Published
- **Opinion:** Concurrence by Baird
- **Judges:** Meyers, Baird, Clinton, Maloney, Overstreet
- **Cited by:** 229 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part by Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, 542 U.S. 274 (2004).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9772020

## How later opinions describe it (automated extraction)

- holding that reference to plea negotiations was subject to exclusion under Rule 403 since any minimal relevance it may have had in that case was substantially outweighed by the danger of both unfair prejudice and of misleading the jury
- noting that State has right during closing argument to “attack the veracity of a defendant who takes the stand”
- holding that evidence of a plea offer by the State may be relevant, but is substantially outweighed by the danger of both unfair prejudice and of misleading the jury
- holding that no equal protection violation occurred because appellant failed to establish that classification discriminated against similarly-situated individuals
- holding that different sentencing scheme for capital and non-capital defendants did not violate equal protection; all capital defendants were treated similarly

## Opinion text

BAIRD, Judge,
concurring.
The central issue in this case can be stated as follows: In light of Simmons v. South Carolina, — U.S. -, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994), does the Due Process Clause of the United States Constitution require that the jury be informed of how long a capital murder defendant will be confined before being parole eligible in the event he is sentenced to confinement for life rather than death.
I.
Prior to Simmons our law was clear, the matter of parole or a defendant’s release thereon was not proper for a jury’s consideration in a capital murder trial and a capital murder defendant was not entitled to a jury instruction explaining our parole laws. Stoker v. State, 788 S.W.2d 1, 16 (Tex.Cr.App. 1989); O’Bryan v. State, 591 S.W.2d 464, 478 (Tex.Cr.App.1979); and, Andrade v. State, 700 S.W.2d 585, 587 (Tex.Cr.App.1985). These holdings were not subject to federal *856 attack because the States have the power to determine whether their criminal justice system will allow such an instruction; Due Process neither compels, nor prohibits, a jury instruction on state parole laws. California v. Ramos, 463 U.S. 992, 1013-1014 , 103 S.Ct. 3446, 3460 , 77 L.Ed.2d 1171 (1983). Appellant questions the continued viability of these cases in light of Simmons .
II.
Simmons is composed of five separate opinions; the lead opinion, authored by Justice Blackmun, failed to garner a majority of the Court. Such a resolution provides little guidance to the bench and bar. Moreover, the future of the affected area of the law remains uncertain. When the law is uncertain, appellate court judges have little confidence in how to proceed when confronted with similar issues. In these situations, this Court has opted to read Supreme Court opinions in their most narrow light. 1
In this narrow light, the plurality holds Simmons has no application because, unlike South Carolina, a Texas capital murder defendant sentenced to confinement for life is eligible for parole. This narrow reading is supported by two of the opinions in Simmons . In his plurality opinion Justice Black-mun stated:
... In a State in which parole is available, how the jury's knowledge of parole availability will affect the decision whether or not to impose the death penalty is speculative, and we shall not lightly second-guess a decision whether or not to inform a jury of information regarding parole.
Simmons , — U.S. at -, 114 S.Ct. at 2196 . In her concurring opinion, Justice O’Connor stated: “In a State in which parole is available, the Constitution does not require (or preclude) jury consideration of [parole eligibility].” Id., at-, 114 S.Ct. at 2200 (O’Connor, J., concurring).
Under the instant interpretation of Simmons , there will never be a Due Process violation as long as the possibility of parole exists, regardless of how remote.
III.
Today, a Texas capital murder defendant sentenced to life must serve 40 years before being eligible for parole. One might question whether there is a meaningful distinction between life without the possibility of parole and being parole eligible after serving 40 years in confinement. Would due process be violated if our law provided that a capital murder defendant must serve 100 years in confinement before being parole eligible? Or 1,000 years? From my reading of Simmons , the Supreme Court perceives a distinction. While the dissenters may argue that such a distinction promotes form over substance, it is nevertheless a distinction of Constitutional magnitude in the mind of the Simmons Court.
IV.
Based upon the Supreme Court’s treatment of its own decisions, I believe Simmons is a fact bound opinion. See, Mines v. State, 888 S.W.2d 816, 817 (Tex.Cr.App.1994) (op. on remand from United States Supreme Court) (Baird, J., concurring). Because Simmons is limited to cases where the defendant is ineligible for parole, and because appellant is eligible for parole, there is no due process violation. 2
With these comments, I join only the judgment of the Court.
. This nanrow interpretation has had the practical affect of overruling the Supreme Court opinion. See, Robison v. State, 888 S.W.2d 473, 485-489 (Tex.Cr.App.1994) sub silentio overruling Penry v. Lynaugh, 492 U.S. 302 , 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989).
. I am in general agreement with Judge Malo-ney’s well written and well reasoned dissent which finds a violation of the Eighth Amendment. However, only two of the Justices in Simmons addressed the Eighth Amendment. Consequently, Judge Maloney's holding appears to be even more tenuous than finding a due process violation. Therefore, I believe it more prudent for the Supreme Court to resolve the Eighth Amendment issue. Hopefully, that resolution will gamer more than a plurality of Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772020. Public record. Not legal advice.