# Marshburn v. State

> Court of Criminal Appeals of Texas · February 26, 1975 · 522 S.W.2d 900

URL: https://www.frixlaw.com/law-library/cases/9775631

## Case

- **Full name:** Tommy Preston MARSHBURN, Appellant, v. the STATE of Texas, Appellee (Two Cases)
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** February 26, 1975
- **Citations:** 522 S.W.2d 900
- **Precedential status:** Published
- **Opinion:** On rehearing by Douglas
- **Judges:** Odom, Douglas
- **Cited by:** 22 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/9775631

## Opinion text

DISSENTING OPINION ON STATE’S MOTION FOR REHEARING
DOUGLAS, Judge.
The State’s motion for rehearing has been overruled without written opinion. The majority still refuses to discuss the fact that the argument of the prosecutor was directly from the penitentiary records and other evidence. The majority apparently believes that regardless of the record certain arguments are always reversible.
When facts are in evidence and have a bearing on the outcome, they should be discussed in the opinion. This writer does not believe that an isolated statement should be taken out of the record and show reversible error. Prosecutors have always been able, before this case, to discuss matters in evidence. When two rules of law are applicable, both should be discussed and weighed.
Recently this Court reversed a case even though no objection was made because the trial judge in his charge did not apply the law to the facts. See Harris v. State, 522 S.W.2d 199 (1975).
Is the majority opinion in the present case failing to apply the law to the facts? *907 Without facts the law cannot be applied. Courts do not or should not operate in a vacuum. What happened in the trial in nearly all cases is important to the decision on appeal.
The majority in holding the argument reversible is apparently doing so under the belief of the fiction that jurors do not know that convicts receive credit for good time.
The majority should be consistent in its holdings. The cases against the other defendants arising from the same trial where the same objections were made were affirmed. At least the same cases should have the same result, especially where no error has been shown.
The State’s motion for rehearing should be granted and the judgment affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9775631. Public record. Not legal advice.