Whitaker v. State ( 1998 )

MANSFIELD, Judge,

concurring.

I join the opinion of the Court but write separately with respect to appellant’s fourth and fifth points of error. In Smith v. State, 898 S.W.2d 888, 846 (Tex.Crim.App.) (plurality op), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), we held Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) was inapplicable to Texas. The major reason for our holding was that, unlike South Carolina, Texas’ alternative to the death penalty in a capital case is not a life sentence without possibility of parole, but rather a life sentence with possibility of parole after serving forty calendar years. See Tex. Govt.Code § 508.145(b).¹

It does seem somewhat incongruous that juries in noncapital eases are instructed as to applicable parole law whereas in capital cases juries are not to be so instructed. Depending on the life expectancy of an individual sentenced to life imprisonment upon conviction of capital murder, the forty calendar years he must serve before becoming eligible for parole may be, effectively, a life sentence without possibility of parole.

The Legislature has determined that the jury in a capital ease is not to be charged as to the law relating to parole and/or good time. Given this clear expression of legislative intent, we are not free to substitute our own judgment on this matter, absent clear direction from the United States Supreme Court that we must do so. The Supreme Court denied certiorari in Smith and its progeny. See, e.g., Green v. State, 934 S.W.2d 92, 105-106 (Tex.Crim.App.1996), cert. denied, — U.S.-, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997). Indeed, the discussion of Texas parole law in Brown v. Texas, — U.S.-, 118 S.Ct. 355, 139 L.Ed.2d 276 (1997), while interesting, demonstrates the Supreme Court is not, at this time, inclined to review our holding in Smith that Simmons is inapplicable to Texas.

It is the Legislature’s role, not ours, to determine what, if anything, juries are to be told about the operation of Texas parole law.

1 . In Simmons, the prosecutor also misled the jury into believing the defendant would eventually be set free should he receive a life sentence. This misrepresentation violated the defendant’s due process rights.