TONY LORENZO FRANKLIN,FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00197-CR
TONY LORENZO FRANKLIN,FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
THE STATE OF TEXAS,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, KINKEADE, AND LAGARDE
DISSENTING OPINION BY JUSTICE WHITHAM
JULY 17, 1989
        I respectfully dissent. I would sustain appellant's third point of error and reverse and remand. I cannot agree that the present case is distinguishable from Masten v. State, 100 Tex. Crim. 30, 271 S.W. 920, 922 (1925) and McFarlane v. State, 254 S.W.2d 136, 137 (Tex. Crim. App. 1953). I refuse to judicially condone calls for mob or individual violence made in the operation of the Texas judicial system. In the present case, the prosecutor remarked in his final jury argument at the punishment phase of the trial:
        You know, sometimes I wish that the law would allow me or one of you--and I bet there's some of you on this jury who would do it if the law allowed you to--I wish the law would allow me to do to this defendant what he did to that young man, put that .38 right between his eyes and blow his brains out.
 
 
In my view, the majority reads the prosecutor's remark too narrowly when it treats the remark as a statement of what the "[prosecutor] wished the law allowed." Indeed, the majority fails to heed the admonition given in McFarlane: "State's counsel, in argument to the jury, should not, by inference or otherwise, convey to the jury the impression that any state of facts would authorize the infliction of summary punishment by mob or individual." MacFarlane, 254 S.W.2d at 137 (emphasis added). In the present case, the majority overlooks McFarlane's instruction that the prosecutor not by "inference or otherwise" incite to mob or individual violence. To my mind, the majority's reliance on the prosecutor's "wish list" disregards the prohibition on "by inference or otherwise." Indeed, the prosecutor's "wish list" is a clear but inferential call to infliction of summary punishment by mob or individual.
        The Court of Criminal Appeals teaches that we, as a nation of free and independent people, are dedicated to the principle that no citizen shall be deprived of his liberty except by "the due course of the law of the land" (article I, section 19 of the Texas Constitution and the Fifth and Fourteenth Amendments to the Federal Constitution). McFarlane, 254 S.W.2d at 137. This means that punishment for crime will be imposed only by and through a trial in accordance with law. When summary punishment is recognized, sanctioned, or imposed by governmental authority, this constitutional guarantee is destroyed. McFarlane, 254 S.W.2d at 137. In McFarlane, the Court of Criminal Appeals concluded that the prosecutor's call for summary punishment constituted reversible error. McFarlane, 254 S.W.2d at 137. Therefore, the deprivation of due process occurring during the punishment phase of trial in the present case requires reversal. Consequently, in the present case, I would sustain appellant's third point of error, reverse the trial court's judgment and remand for new trial. See TEX. CODE CRIM. PROC. ANN. art. 44.29(b).
 
                                                          
                                                          WARREN WHITHAM
                                                          JUSTICE
 
 
 
 
PUBLISH
TEX. R. APP. P. 90
88-00197.DF
 
 
File Date[01-02-89]
File Name[880197]