                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS

                                              NO. PD-1466-11


                                  JONATHAN JACOBSON, Appellant

                                                    v.

                                         THE STATE OF TEXAS



                               ON DISCRETIONARY REVIEW
                           FROM THE SEVENTH COURT OF APPEALS
                                 FROM LUBBOCK COUNTY



       Womack, J., filed a dissenting opinion in which Keller, P.J., and Keasler, J., joined.


       In this case we have been asked to determine whether Leday v. State’s1 exceptions to De

Garmo v. State2 should be extended to a broader class of guilt-phase errors. The Court says that

they should be extended to all errors. As the author of the Leday opinion, I respectfully disagree.


       1
           983 S.W .2d 713 (Tex. Cr. App. 1998).

       2
           691 S.W .2d 657 (Tex. Cr. App. 1985).
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        I agree with learned commentators that the application of the De Garmo doctrine should

consider the values that underlie the law that the trial court failed to follow.

                 As Leday suggested, the crux of the … issue is the extent to which reliable
        assurance that the convicted defendant is guilty justifies barring that defendant
        from raising claims of error in the guilt-innocence determination. Leday relied
        heavily upon the conclusion that claims of error often enough invoked values
        other than trial accuracy to require a conclusion that such admissions never justify
        preclusion of this sort. This conclusion is questionable. Leday never carefully
        identified what values are served by appellate review of various claims of error or
        explained how preclusion of such review would affect the law’s ability to pursue
        these values.
                 The rule barring use of a reliable but involuntary confession is, as Leday
        indicated, a rule that serves objectives other than the accuracy of the outcome of
        the trial. Would barring defendants who admit guilt at punishment from seeking
        relief from use of such confessions at the guilt trials impair the ability of the law
        to implement those values? If all that is at issue is the need to discourage judges
        from erroneously admitting such confessions, perhaps barring guilty appellants
        from obtaining review would not impair the deterrent effect of appellate review in
        general. But perhaps a guilty defendant whose guilt trial was tainted by the use of
        such a confession is entitled to personal relief in order to implement these other
        values.
                 Despite its extensive discussion, Leday arguably failed to come to grips
        with the real issue underlying the DeGarmo [sic] Doctrine.3

        Today the Court not only omits such a thoughtful consideration, but delivers dicta that

seek to foreclose even the possibility of undertaking such consideration in the future. We should

welcome the possibility of building on Leday.

        As for this case, I agree with the Court of Appeals that the prosecutor’s argument to the

jury is not in the class of errors to which Leday applies. It is not included in Leday’s list of

violations, and the appellant has not argued any due-process concerns or fundamental individual

rights that should override the truth-finding function of the trial. That the State criticized defense



        3
          George E. Dix & John M. Schmolesky, 43A Texas Practice –– Criminal Practice and Procedure § 53.163
(3d ed. 2011).
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counsel’s argument as one that was twisting and turning and filling in the holes to make it work

was not a constitutional violation that put the appellant in the “cruel trilemma” which we

addressed in Leday.4 I would hold that the courts below did not err in finding that the appellant’s

complaint was forfeited.


Filed February 6, 2013.
Publish.




       4
           Leday, 983 S.W .2d, at 723.
