COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00080-CR
WILLIAM BERRY WATERS, III APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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OPINION
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I. Introduction
Appellant William Berry Waters, III, appeals his sentence for felony driving
while intoxicated (DWI), contending in five points that the prosecutor‘s remarks
during closing argument at the punishment phase warrant a new punishment
hearing. We affirm.
II. Background
The indictment charging Appellant with felony DWI included an
enhancement paragraph alleging that he had a prior felony DWI conviction, and a
habitual offender paragraph alleging that he had still another prior conviction for
felony DWI. After the jury returned a guilty verdict in the instant case, the court‘s
charge on punishment instructed the jury that the applicable range of punishment
was confinement for twenty-five years to ninety-nine years or life. See Tex. Code
Crim. Proc. Ann. art. 37.07, § 4 (b) (Vernon Supp. 2010). The charge also
included statutorily required good conduct and parole instructions, advising the
jury that the actual time Appellant served in prison could be reduced by the
award of good-conduct time or by the award of parole; that Appellant would not
become eligible for parole until the actual time served plus any good-conduct
time earned equaled the lesser of one-fourth of the sentence imposed or fifteen
years; and that parole eligibility does not mean that parole will be granted. See
id. The prosecutor addressed these instructions in his closing argument at
punishment. The jury assessed punishment at sixty years‘ confinement, and the
trial court sentenced Appellant accordingly.
In five points on appeal, Appellant contends that the trial court erred by
overruling his objections to several of the prosecutor‘s remarks during closing
argument at punishment.
2
III. Remarks About Parole Instructions
In his first point, Appellant claims that the prosecutor‘s remarks,
reproduced below, improperly urged the jury to consider how the parole laws
would be applied specifically to him. The record transcribed during the initial
portion of the State‘s closing argument at punishment includes the following:
[PROSECUTOR]: . . . So what do we do here? This whole
thing about parole, it‘s in your charge. I want you to -- -- to look at
this. It says, ―Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn time-off a period of
incarceration imposed through the award of good[-]conduct time.‖
That means -- --
THE COURT: Three minutes, counsel.
[PROSECUTOR]: Thank you.
That means if he‘s a good prisoner, if he goes down and does
what he‘s supposed to do, he can get extra credit. He also gets
good time for any time he‘s already served up until this point since
this case has happened. All right? And it says that when the actual
time that he serves plus the good-conduct time equals one-fourth of
whatever sentence that he gets, then he‘ll be eligible for parole.
That doesn‘t mean he‘ll get it, but he‘ll be eligible for parole.
It also says that the -- -- when it equals one-fourth of the
sentence imposed, or 15 years, whichever is less, that means if you
give him anywhere from 60 to 99 years, he becomes eligible for
parole after 15 years. Okay? And that includes good-conduct time.
So if he has good-conduct time that gives him extra credit, he might -
- -- it’d be less than 15 years. Okay? You understand that?
All right. So the reality of the situation is, if you give him 60
years or more, you’re doing all that you can do. The question is -- --
[DEFENSE COUNSEL]: Hold on a minute. Judge, I‘m going
to object to that. That violates the -- the -- -- the charge of the Court.
That‘s not to be considered by the jury, and I object to counsel
arguing that.
3
THE COURT: Overruled.
[PROSECUTOR]: The question is, ―what statement do you
want to make?‖
(emphasis added).
Appellant contends that the italicized remarks were improper because they
specifically invited jurors to consider the application of the parole law to him.
In its response, the State contents itself to stand mute on the merits while
arguing procedural default and harmless error. We are not persuaded by the
State‘s preservation arguments, and, despite the State‘s underwhelming silence
on the merits, because of our disposition below, we need not address harm.
The State first argues that Appellant‘s objection was too general to
preserve his complaint for review because he did not object that the prosecutor
improperly urged the jury to apply the parole laws specifically to him; instead he
objected that the argument violated the court‘s charge and was something the
jury could not consider. The State cites examples of cases wherein, after having
overruled objections, trial courts uttered something on the record positively
evincing their understanding of what the objections were about. But our rules of
error preservation require no such affirmative declarations by trial courts. At
most, a trial court need only rule on an objection, either expressly or implicitly.
Tex. R. App. 33.1(a)(2)(A). Moreover, even an imprecise objection preserves
error when ―the specific grounds were apparent from the context.‖ Tex. R. App.
P. 33.1(a)(1)(A); see Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App.
4
1997) (―Where the record makes clear that the trial court understood an objection
and its legal basis, a trial court‘s ruling on that objection will be preserved for
appeal, despite an appellant‘s failure to clearly articulate the objection.‖). As the
court of criminal appeals has made abundantly clear:
As regards specificity, all a party has to do to avoid the forfeiture of a
complaint on appeal is to let the trial judge know what he wants, why
he thinks himself entitled to it, and to do so clearly enough for the
judge to understand him at a time when the trial court is in a proper
position to do something about it. Of course, when it seems from
context that a party failed effectively to communicate his desire, then
reviewing courts should not hesitate to hold that appellate
complaints arising from the event have been lost. But otherwise,
they should reach the merits of those complaints without requiring
that the parties read some special script to make their wishes
known.
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).
Here, as the prosecutor discussed the paragraphs concerning parole laws
in the court‘s charge, Appellant objected, ―That violates the -- the -- -- the charge
of the Court. That‘s not to be considered by the jury, and I object to counsel
arguing that.‖ The objection is quite specific. In context, we think the trial court
understood the objection as a complaint that the prosecutor‘s comments urged
the jury to stray from the charge‘s instructions that it was not to consider how the
parole laws might be applied to Appellant.
The State next argues that the objection does not comport with Appellant‘s
point on appeal. We have already held that Appellant‘s objection, ―That violates
the . . . charge of the court‖ was sufficient to inform the trial court and the
prosecutor the nature of Appellant‘s complaint. Appellant‘s point on appeal is
5
that the prosecutor‘s remarks urged the jury to apply the parole laws specifically
to him, which Appellant contends violated the court‘s charge not to consider the
manner in which the parole law may be applied to him. This sufficiently comports
with Appellant‘s objection at trial. See Tex. R. App. P. 38.9.
Finally, the State draws upon cases holding that opponents to the
admission of evidence must continue to object when similar evidence is offered
at the risk of forfeiting any claims based on the trial court‘s admission of evidence
to argue that failure to keep objecting to similar arguments also forfeits error. We
need not decide whether rules that apply to preserving complaints about
evidence properly apply to those about argument because we find nothing
objectionable in the arguments that the State claims Appellant should have
objected to in order to preserve his complaint about the arguments he did object
to.
To conclude, we hold that Appellant has preserved his first point for
review. Therefore, we will consider its merits.
In support of his contention that the prosecutor improperly urged the jury to
consider how the parole laws would be applied specifically to him, Appellant
relies on the reasoning and analysis of three cases from our sister courts––
Chester v. State, 167 S.W.3d 935 (Tex. App.—Amarillo 2005, pet. ref‘d); Perez v.
State, 994 S.W.2d 233 (Tex. App.—Waco 1999, no pet.); and Facundo v. State,
971 S.W.2d 133 (Tex. App.—Houston [14th Dist.] 1998, pet. ref‘d).
6
In Chester, during closing argument at punishment the prosecutor
remarked, ―If there is a 20 year sentence, Mr. Chester will not become eligible for
parole until his actual time served, plus whatever credit they give him for good
time served, equals 5 years . . . .‖ 167 S.W.3d at 936. The Seventh Court of
Appeals, after lauding the State for conceding error, held that the remarks were
harmful, and remanded for a new punishment hearing. Id. at 936–38.
In Perez, the Tenth Court of Appeals held that the remarks, ―anything you
give him over 60 years, he’s eligible for parole after 30 years‖ and that asking the
jury to ―set the proper sentence‖ based on this information improperly
encouraged the jury to consider the effects of parole on Perez‘s punishment and
were therefore improper. 994 S.W.2d at 237 (emphasis in original).
And in Facundo, the Fourteenth Court of Appeals held that the trial court
properly sustained the State‘s objections to defense counsel‘s arguing at
punishment, ―But when you examine what Our Honor told you on the parole
factor, remember this and read the law here, and basically what this says is: For
example, if you assess ten years in prison, what it says here, he’s got to serve
five years flat‖ and ―if the defendant is sentenced to a term of imprisonment, he
will not become eligible for parole until the actual time served equals one-half of
the sentence imposed. So you can do simple mathematics on that.‖ 971 S.W.2d
at 135–36 (emphasis in original).
The reasoning in these cases may be traced to one of ours. See Chester,
167 S.W.3d at 937 (citing Facundo, 971 S.W.2d at 135–36); Perez, 994 S.W.2d
7
at 237 (citing Taylor v. State, 911 S.W.2d 906, 912, 914 (Tex. App.—Fort Worth,
1995, pet. ref‘d); Facundo, 971 S.W.2d at 136 (citing Taylor, 911 S.W.2d at 911).
In Taylor, a panel of this court held that closing arguments at the punishment
phase were proper because the prosecutor did not make any attempt to apply
the parole instructions in the charge specifically to the defendant. 911 S.W.2d at
912. We observed that while counsel may explain the existence of parole rules
as set out in the charge, generally, counsel must take caution to avoid applying
those rules specifically to the defendant on trial. Id. at 911.
We are not, of course, bound by the decisions of our sister courts,
generally, or by our own, particularly, when it becomes apparent that our
reasoning was unsound. And it should go without saying that we cannot follow
our earlier decisions when they are later overturned, explicitly or otherwise, by
the court of criminal appeals.
The reasoning these cases relied upon, and upon which Appellant now
seizes, appears not to have survived the court of criminal appeals‘ more recent
decision in a case also styled Taylor v. State, and found at 233 S.W.3d 356 (Tex.
Crim. App. 2007). In that Taylor, the court of criminal appeals held that it was not
improper for prosecutors to explain how the parole eligibility rules set out in jury
charges applied to certain sentences and to specific defendants. Id. at 358–59.
There, the appellant had complained of remarks made by the prosecutor that
bear a striking resemblance to those that the Amarillo Court of Appeals held
improper in Chester:
8
A 40-year sentence means the defendant becomes eligible for
parole after serving 20 years.
....
A 60-year sentence means he becomes eligible after serving 30
years. A sentence of life or 75 still means he becomes eligible after
30 years.
Id. at 358–59.
Judge Keller wrote for the majority that the issue was ―whether it was
improper for [the prosecutor] to explain how these parole eligibility rules applied
to certain sentences, and also whether [the prosecutor] stepped over the line by
incidentally referring to ‗the defendant‘ and ‗he‘ in his explanation.‖ Id. at 358.
The court of criminal appeals answered both questions ―no,‖ reasoning that:
In Hawkins v. State, [135 S.W.3d 72, 84 (Tex. Crim. App. 2004)] we
explained that ―[i]t was not improper for the prosecutor to accurately
restate the law given in the jury charge.‖ [footnote omitted] In the
case before us, the prosecutor did not convey any information
beyond what was properly contained in the charge when he
explained how the parole eligibility rules set out in the charge
worked with forty, sixty and seventy-five year sentences. The
explanation simply ensured that the jury understood the language
set out in the instructions. Nor do we ascribe any significance to the
prosecutor‘s passing use of the words ―defendant‖ and ―he‖ in the
course of giving his explanation. The statutory instruction itself uses
the words ―defendant‖ and ―he‖ when describing the rules of parole
eligibility. Nothing in this case indicates that the prosecutor‘s
explanations went beyond an attempt to clarify the meaning of the
jury instructions.
Id. at 359.
Judge Womack, joined by Judges Meyers and Price, concurred, opining
that the reason the prosecutor‘s remarks were not error was explained by Justice
9
Frost in another concurring opinion. Id. at 360 (Womack, J., concurring) (citing
Byrd v. State, 192 S.W.3d 69, 72 (Tex. App.—Houston [14th Dist.] 2006, pet.
ref‘d) (Frost, J., concurring). Judge Womack quoted Justice Frost approvingly:
[I]n cases involving an article 37.07, section 4(a) jury instruction,[1]
the jury may base its assessment of punishment in part on
consideration of a sentenced defendant‘s parole eligibility under the
formula contained in the instruction; however, a jury may not base its
assessment of punishment on speculation as to when, if ever, the
defendant may be released on parole after becoming eligible for
parole. Therefore, the jury instruction in article 37.07, section 4(a)
that the jury is ―not to consider the manner in which the parole law
may be applied to this particular defendant‖ refers to speculation
about when, if ever, this particular defendant might be released on
parole. It does not refer to the jury‘s consideration of a sentenced
defendant‘s parole eligibility under the formula contained in the
instruction.
Id. at 360 (Womack, J., concurring) (quoting Byrd, 192 S.W.3d at 72 (Frost, J.,
concurring) (citations omitted)).
This is sound reasoning. A jury must base its punishment decision upon
the evidence before it. It may not base its decision on evidence that may or may
not exist at some point in the future. There will never be evidence at trial of
whether prison authorities will extend or withdraw good-conduct time to a
particular defendant because those decisions will be made, if ever, by prison
1
The instructions in sections 4(a) and 4(b), which applied in the instant
case, are practically identical. They differ in that 4(a) states that parole eligibility
occurs when actual time served equals the lesser of one-half of the sentence
imposed or 30 years, without consideration for good conduct time, whereas 4(b)
states that eligibility occurs when actual time plus any good-conduct time equals
the lesser of one-fourth of the sentence imposed or 15 years. Compare Tex.
Code Crim. Proc. Ann. art. 37.07, § 4(a) with id. at § 4(b).
10
authorities after that convicted defendant begins serving his sentence. Thus,
juries properly are instructed not to consider ―the extent to which good[-]conduct
time may be awarded to or forfeited by this particular defendant.‖ Tex. Code
Crim. Proc. Ann. art. 37.07, § 4. Likewise, there will never be evidence at trial of
how parole authorities will apply parole laws to decide whether a particular
defendant will be awarded parole because those laws are applied after that
convicted defendant becomes eligible for parole. Thus, juries properly are
instructed that they ―are not to consider the manner in which the parole law may
be applied to this particular defendant.‖ Id. Any consideration at trial of whether
the defendant would be awarded or would forfeit good-conduct time or how the
parole laws would be applied to him would necessarily be based on speculation.
That is why such consideration, properly, is prohibited.
But juries are not instructed not to use the parole eligibility instructions in
the charge to fashion a sentence that ensures that defendants will become
eligible at the most distant possible date. To impose such a prohibition is
inconsistent with the instruction itself. Equating the prohibition of inviting
speculation as to when a specific defendant might be paroled with one that seeks
to prevent juries from using the formula they are given in the charge to affect
parole eligibility leads to the absurd expectation that juries can consider the
existence of good-conduct time, and how that works into the formula for
determining parole eligibility but still refrain from applying that formula in working
out an appropriate punishment.
11
What a jury can properly do, in following the charge, is determine how long
a term it wishes a defendant to serve before that defendant may become eligible
for parole because the jury is instructed on good-conduct time and is furnished
the formula for determining eligibility. See id. A jury, however, may not consider
when, if ever, that defendant actually might be awarded parole (it must disregard
whether the defendant will receive or forfeit good-conduct time and whether he
will be awarded parole). See Turner v. State, 87 S.W.3d 111, 116 (Tex. Crim.
App. 2002), cert denied, 538 U.S. 965 (2003). These are distinct issues one of
which is properly placed into the hands of jurors, to some degree, and the other
of which is properly in the hands of officials in whose keep the defendant is
placed after the jury has done its part in sentencing.
Here, Appellant complains of the remark, ―So if he has good-conduct time
that gives him extra credit, he might -- -- it’d be less than 15 years. Okay? You
understand that?‖ But the charge states that ―the defendant, if sentenced to a
term of imprisonment, may earn time off the period of incarceration imposed
through the award of good[-]conduct time‖ and that ―he will not become eligible
for parole until the actual time served plus any good[-]conduct time earned
equals one-fourth of the sentence imposed or fifteen (15) years, whichever is
less.‖ The highlighted portions of the prosecutor‘s remarks were nothing more
than accurate restatements of the instructions in the charge. In explaining how a
sixty-year sentence would work, he said, ―So if he has good-conduct time that
12
gives him extra credit, he might -- -- it’d be less than 15 years.‖ We hold that
there is no error in this part of the argument.
Appellant also complains of the remark, ―So the reality of the situation is, if
you give him 60 years or more, you’re doing all that you can do.‖ This, too is true
to the charge. One-fourth of sixty is fifteen. Because the charge states that
Appellant would become eligible for parole when any accrued good-conduct time
and actual time served reached one-fourth of the sentence or fifteen years,
whichever is less, any sentence beyond sixty years does not affect when
Appellant would become parole eligible under the formula in the charge. From
the perspective of a jury that might wish to assure that Appellant stay
incarcerated for as long as possible, a sentence of sixty years is all that jury can
do. In so doing, it does not resort to speculation about how much, if any, good-
conduct time appellant might receive or forfeit or whether he might be released
early on parole, it merely applies the mathematical formula in the charge.
Certainly a prosecutor is entitled to argue for a stiff sentence. And indeed, it has
been noted that the purpose of the Legislature‘s change in the statute to allow
juries to consider the existence of good-conduct time and release on parole was
to produce longer sentences. See Grigsby v. State, 833 S.W.2d 573, 573–76
(Tex. App.—Dallas 1992, pet. ref‘d); Parker v. State, No. 08-03-00172-CR, 2004
WL 2113050, at *11 (Tex. App.—El Paso Sept. 23, 2004, no pet.) (not
designated for publication).
13
In conclusion, we hold that the prosecutor‘s remarks accurately restated
the law given in the jury charge. See Taylor, 233 S.W.3d at 359. Nor was there
any error in referring specifically to Appellant. See id. The prosecutor did not
convey any information beyond what was properly contained in the charge, and
he did not urge the jury to make a decision on punishment based on speculation
of matters that were not properly before it. See id.; Hawkins, 135 S.W.3d at 84.
IV. Remarks Appellant Claims Were Outside the Record
In points two through five, Appellant complains that the following remarks
from the State‘s closing argument at the end of the punishment phase were
outside the record:
[THE PROSECUTOR]: Because no matter what you give him,
you can‘t guarantee when he‘s next going to be out there, drinking
and driving. That‘s the reality of the situation.
And you know what? He hasn‘t hurt anybody yet. And - - and
that has to be said. What if it had been a little girl or boy standing on
the corner instead of just a curb?
[Appellant‘s objection to ―counsel arguing facts that are not in
evidence‖ overruled.] (Emphasis as given in Appellant‘s brief).
[THE PROSECUTOR]: I do feel sorry for this [Appellant‘s]
family. But you know what? Every day that he‘s in the penitentiary,
they‘re going to know that he‘s safe, that he‘s not out there about to
kill himself out on the roads, or kill somebody else, they‘re going to
know exactly - -
[DEFENSE COUNSEL]: Judge, whoa, whoa, whoa, whoa.
I‘m going to object to - - I‘m going to object to that. That‘s improper
argument about this defendant killing somebody. Now, that is not
base - - that is not the evidence in this case, and I object to it.
[Objection overruled.]
14
[THE PROSECUTOR]: And when he goes down to the
penitentiary, what message does he carry with him? ―Oh, I was
arrested six times for DWI, convicted five times, and they gave me
the minimum sentence.‖ I can‘t - - I can‘t in good conscience agree
that that‘s the right thing to do.
THE COURT: Two minutes, counsel.
[THE PROSECUTOR]: The reality of the situation is I cannot
live with myself if one day a few years later from now I picked up the
paper and I saw that this man had run over somebody and killed
them.
[DEFENSE COUNSEL]: Now Judge, wait a minute, I‘m going
to object to that. That is absolute speculation, surmise and
suspicion of this lawyer, not based on one fact in this evidence and I
object to it.
THE COURT: Overruled.
[DEFENSE COUNSEL]: I specifically object to running over
and killing somebody in the record.
(Emphasis as given in Appellant‘s brief).
[THE PROSECUTOR]: I could not live with myself if I picked
up the paper and read something like that, even if he had run off the
road in a ditch and killed himself - -
[DEFENSE COUNSEL]: Object, Judge - -
[PROSECUTOR]: - -when he could have been - -
[DEFENSE COUNSEL]: I object for the same reason, on
speculation, surmise - -
[Running objection granted.]
- - when he could have been safe and sound somewhere else,
somewhere his family can visit him.
15
I ask that you give him 60 years. That‘s my recommendation,
because by doing that, you‘re putting him away for as long as you
can, but you‘re not telling him he‘s a bad person, you‘re keeping our
community safe, and you‘re sending a message with him that we will
not tolerate this type of behavior, ―we will not tolerate this type of
behavior.‖
(Emphasis as given in Appellant‘s brief).
Appellant contends that by overruling his objections, the trial court erred
because the prosecutor improperly argued matters outside the record.2
In Strahan v. State, the court of criminal appeals held that the prosecutor‘s
remarks during closing argument in a DWI trial, ―When you and your family are
on these highways driving you can‘t help but sometimes wonder if some drunk
driver is going to hit you, run over you and kill you,‖ was an appeal for strict law
enforcement and presented no error. 358 S.W.2d 626, 627 (Tex. Crim. App.
1962). Similarly, the court of criminal appeals held that the argument, ―And I ask
you to find the defendant guilty and all those like him because we are all going to
get in our cars, and we are going to go home‖ was ―nothing more than a plea for
law enforcement.‖ Nichols v. State, 504 S.W.2d 462, 465 (Tex. Crim. App.
1974).
2
To the extent that Appellant‘s complaint is that the prosecutor‘s remarks to
the effect that he could not live with himself if he read that Appellant had killed
someone improperly injected the prosecutor‘s personal opinion, we hold that
Appellant‘s objections at trial preserved only his claim that the prosecutor
improperly urged the jury to speculate about evidence not in the record; i.e., that
someone could have been injured or killed. See Tex. R. App. P. 33.1(a)(1)(A);
Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh‘g), cert.
denied, 526 U.S. 1070 (1999); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App.
1996), cert. denied, 522 U.S. 827 (1997).
16
In Pittman v. State, the appellant in a DWI trial had been stopped after
driving through a traffic light four seconds after it turned red; but there was no
evidence that he had injured anyone. 9 S.W.3d 432, 434 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) Several times during closing argument, the prosecutor
remarked to the effect that the appellant ―is going to kill someone some day.‖ Id.
The prosecutor also argued that prison is ―one place where we know that he
can‘t go kill someone.‖ Id. The Fourteenth Court of Appeals held that ―the seven
statements relating to appellant killing another person‖ were all ―proper pleas for
law enforcement.‖ Id.
In Yocom v. State, we held that where, although there was no evidence in
the appellant‘s DWI trial that he had injured anyone, the prosecutor‘s remark, ―He
made it somehow to Euless. Are we lucky nobody died? Yes, we are‖ was a
reasonable deduction from the evidence where the evidence showed that the
appellant had admitted drinking at a bar in Dallas, was extremely intoxicated, and
had pulled over in Euless because he was not feeling well. No. 02-03-00181-CR,
2004 WL 742888, at *1, *12 (Tex. App.—Fort Worth Apr. 8, 2004, pet. ref‘d) (not
designated for publication).
And finally, in Bobbit v. State, we held that the prosecutor‘s argument in a
DWI trial that drunk drivers like the defendant injure or kill innocent people was
an unobjectionable plea for law enforcement as well as a reasonable deduction
from the evidence. No. 02-01-00506-CR, 2003 WL 21197606, at *1 (Tex. App.—
Fort Worth May 22, 2003, no pet.) (mem. op., not designated for publication).
17
Based on these precedents, we hold that the prosecutor‘s remarks in this
case referring to the risks of injury or death imposed by drunk drivers, regardless
of the lack of evidence in the record that someone was injured or killed, are
proper pleas for law enforcement.
Furthermore, the remarks were proper responses to arguments made by
opposing counsel. Before the remarks of which Appellant complains, Appellant‘s
counsel had argued, ―There‘s no evidence in this case that Berry Waters ever
hurt anybody. Berry Waters is not a murderer, he‘s not a rapist, he hasn‘t
abused your children or mine, he hadn‘t committed sexual assaults, he hadn‘t
done all the things that - - he‘s not a pedophile. He hasn‘t done those kind[s] of
things that I tell you that justify, in my opinion, a long-term prison sentence.‖ He
also argued, ―And I‘ll say to you on behalf of this [Appellant‘s] family, please don‘t
punish Berry for being some kind of criminal. Please don‘t punish him for being
some kind of a violent guy that you‘re afraid to put back on the streets of the
community.‖ Given Appellant‘s counsel‘s argument that Appellant didn‘t deserve
a long prison term because he didn‘t hurt anybody, the prosecutor‘s remarks
were proper responses. See Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim.
App. 1990). Accordingly, we overrule points two through five.
18
V. Conclusion
Having overruled all of Appellant‘s points, we affirm the trial court‘s
judgment.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DAUPHINOT, J., filed a dissenting opinion.
PUBLISH
DELIVERED: November 4, 2010
19
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00080-CR
WILLIAM BERRY WATERS, III APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
------------
DISSENTING OPINION
------------
I agree with the majority that it is ‖absurd‖ to expect ―juries [to] consider the
existence of good-conduct time[] and how [it factors] into the formula for
determining parole eligibility but still refrain from applying that formula in
[determining] an appropriate punishment.‖3 It is particularly absurd when the
State‘s jury argument dwells on computing the mathematics of parole law as
applied to the specific defendant:
3
Majority op. at 11.
20
So if he has good-conduct time that gives him extra credit, he
might — — it’d be less than 15 years. Okay? You understand that?
All right. So the reality of the situation is, if you give him 60
years or more, you’re doing all that you can do.
The Texas Court of Criminal Appeals has instructed us that the jury is ―not
to consider the manner in which the parole law may be applied to [a] particular
defendant‖ but that it is perfectly acceptable for the jury to consider how the
parole law applies to the particular defendant by deciding the earliest date on
which the jury wants the particular defendant to first become eligible for parole. 4
Rather than play semantic games, we should look to the plain meaning of the
statute.5 But it makes no sense:
In the penalty phase of the trial of a felony case in which the
punishment is to be assessed by the jury rather than the court, if the
offense is punishable as a felony of the first degree, if a prior
conviction has been alleged for enhancement of punishment as
provided by Section 12.42(b), (c)(1) or (2), or (d), Penal Code, or if
the offense is a felony not designated as a capital felony or a felony
of the first, second, or third degree and the maximum term of
imprisonment that may be imposed for the offense is longer than 60
years, unless the offense of which the jury has found the defendant
guilty is an offense that is punishable under Section 21.02(h), Penal
Code, or is listed in Section 3g(a)(1), Article 42.12, of this code or
the judgment contains an affirmative finding under Section 3g(a)(2),
Article 42.12, of this code, the court shall charge the jury in writing as
follows:
4
See Taylor v. State, 233 S.W.3d 356, 360 (Tex. Crim. App. 2007)
(Womack, J., concurring) (quoting Byrd v. State, 192 S.W.3d 69, 76 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref‘d) (Frost, J., concurring)).
5
See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b) (Vernon Supp. 2010).
21
Under the law applicable in this case, the defendant, if
sentenced to a term of imprisonment, may earn time off the period of
incarceration imposed through the award of good conduct time.
Prison authorities may award good conduct time to a prisoner who
exhibits good behavior, diligence in carrying out prison work
assignments, and attempts at rehabilitation. If a prisoner engages in
misconduct, prison authorities may also take away all or part of any
good conduct time earned by the prisoner.
It is also possible that the length of time for which the
defendant will be imprisoned might be reduced by the award of
parole.
Under the law applicable in this case, if the defendant is
sentenced to a term of imprisonment, he will not become eligible for
parole until the actual time served plus any good conduct time
earned equals one-fourth of the sentence imposed or 15 years,
whichever is less. Eligibility for parole does not guarantee that
parole will be granted.
It cannot accurately be predicted how the parole law and good
conduct time might be applied to this defendant if he is sentenced to
a term of imprisonment, because the application of these laws will
depend on decisions made by prison and parole authorities.
You may consider the existence of the parole law and good
conduct time. However, you are not to consider the extent to which
good conduct time may be awarded to or forfeited by this particular
defendant. You are not to consider the manner in which the parole
law may be applied to this particular defendant.6
The legislature could solve the problem by admitting that it wants the jury
to consider how the parole law might apply to a particular defendant and by
expressly allowing evidence and argument on parole eligibility. Or the legislature
could remove its mandate requiring the nonsensical jury instruction and state
clearly that parole should not be placed before the jury because the jury‘s
6
Id.
22
function is to decide the appropriate sentence for the defendant based on the
facts of the case as they stand on the day of trial. But courts should not expand
or contract the clear language of a statute, no matter how nonsensical it may be.
To say that a jury who is urged to consider a particular defendant‘s parole
eligibility date is not considering how the parole law applies to that particular
defendant defies any rational thought. I am aware that this court is required to
follow the precedent of the Texas Court of Criminal Appeals,7 and I realize that
the majority does exactly what it is required to do in following that precedent. But
because the reasoning and the result so directly conflict with the clear legislative
mandate, conscience requires that I respectfully dissent.
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: November 4, 2010
7
See Taylor, 233 S.W.3d at 359.
23