Hernandez v. State

366 S.W.2d 575 (1963)

Fabian C. HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 35456.

Court of Criminal Appeals of Texas.

March 20, 1963.

Rehearing Denied April 24, 1963.

*576 Arthur L. Lapham, Victoria, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The offense is assault with intent to murder; the punishment, twenty years.

The disposition of this appeal makes a summary of the facts unnecessary except to state that the evidence is sufficient to support the conviction.

Appellant's formal bill of exception certifies that the County Attorney, in the closing argument, said:

"Therefore, I say this, that I feel confident that when you send him, that when he has been rehabilitated that they will turn him loose."

To which the appellant objected on the ground that the argument was clearly in error, and asked for a mistrial. The court overruled the motion and charged the jury not to consider the last statement of the County Attorney.

The argument that an inmate will be turned loose when he has been rehabilitated in effect told the jury that it did not matter how long a term was assessed. This was of course an incorrect statement of the law. It is the duty of the jury to assess the punishment which appears to be just and proper according to the evidence and within the limits prescribed by law. Notwithstanding the court's instruction, the argument was calculated to prejudice the rights of the appellant with the jury.

For the reason pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.