Dorsey v. State

ONION, Judge

(dissenting).

“It is a matter of common knowledge that inmates are released on parole from the Texas Department of Corrections, but the jury, in a felony case, in determining the punishment to be assessed, is not authorized to resort to or apply the parole law. Argument urging them to do so is highly improper.” Graham v. State, Tex.Cr.App., 422 S.W.2d 922.

The jury argument at the penalty stage of the proceedings complained of in ground of error #1 and set forth in the majority’s opinion urged the jury to resort to and consider the parole law in assessing punishment. It did not recommend life or 99 years as a proper punishment based on the evidence, but urged such penalty in view of how the parole law operated. Such argument, whether distinguishable from Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575, or not, calls for reversal. It is not rendered harmless by being prefaced by reference to the court’s charge.

Neither is it saved, in my opinion, by the court’s instruction to disregard. The argument was calculated to prejudice the rights of the appellant with the jury. Hernandez v. State, supra.

There is no merit to the contention that Judge Dowdy was disqualified, but I am not altogether sure some of the other grounds of error do not constitute reversible error. One cannot read this record, beginning with the testimony of the first witness, without wondering whether in the course of numerous side bar remarks, comments, unsworn remarks, innuendo, repeated efforts to get around the court’s rulings, etc., the right of the appellant to a fair trial was not forgotten.

For the reasons stated, I dissent.