                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00080-CR


WILLIAM BERRY WATERS, III                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


                                    ------------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                    ------------

                                   OPINION
                                     ----------

                                I. Introduction

      Appellant William Berry Waters, III, appeals his sentence for felony driving

while intoxicated (DWI), contending in five points that the prosecutor‘s remarks

during closing argument at the punishment phase warrant a new punishment

hearing. We affirm.
                                 II. Background

       The indictment charging Appellant with felony DWI included an

enhancement paragraph alleging that he had a prior felony DWI conviction, and a

habitual offender paragraph alleging that he had still another prior conviction for

felony DWI. After the jury returned a guilty verdict in the instant case, the court‘s

charge on punishment instructed the jury that the applicable range of punishment

was confinement for twenty-five years to ninety-nine years or life. See Tex. Code

Crim. Proc. Ann. art. 37.07, § 4 (b) (Vernon Supp. 2010).          The charge also

included statutorily required good conduct and parole instructions, advising the

jury that the actual time Appellant served in prison could be reduced by the

award of good-conduct time or by the award of parole; that Appellant would not

become eligible for parole until the actual time served plus any good-conduct

time earned equaled the lesser of one-fourth of the sentence imposed or fifteen

years; and that parole eligibility does not mean that parole will be granted. See

id.   The prosecutor addressed these instructions in his closing argument at

punishment. The jury assessed punishment at sixty years‘ confinement, and the

trial court sentenced Appellant accordingly.

       In five points on appeal, Appellant contends that the trial court erred by

overruling his objections to several of the prosecutor‘s remarks during closing

argument at punishment.




                                         2
                    III. Remarks About Parole Instructions

      In his first point, Appellant claims that the prosecutor‘s remarks,

reproduced below, improperly urged the jury to consider how the parole laws

would be applied specifically to him. The record transcribed during the initial

portion of the State‘s closing argument at punishment includes the following:

             [PROSECUTOR]: . . . So what do we do here? This whole
      thing about parole, it‘s in your charge. I want you to -- -- to look at
      this. It says, ―Under the law applicable in this case, the defendant, if
      sentenced to a term of imprisonment, may earn time-off a period of
      incarceration imposed through the award of good[-]conduct time.‖
      That means -- --

            THE COURT: Three minutes, counsel.

            [PROSECUTOR]: Thank you.

             That means if he‘s a good prisoner, if he goes down and does
      what he‘s supposed to do, he can get extra credit. He also gets
      good time for any time he‘s already served up until this point since
      this case has happened. All right? And it says that when the actual
      time that he serves plus the good-conduct time equals one-fourth of
      whatever sentence that he gets, then he‘ll be eligible for parole.
      That doesn‘t mean he‘ll get it, but he‘ll be eligible for parole.

              It also says that the -- -- when it equals one-fourth of the
      sentence imposed, or 15 years, whichever is less, that means if you
      give him anywhere from 60 to 99 years, he becomes eligible for
      parole after 15 years. Okay? And that includes good-conduct time.
      So if he has good-conduct time that gives him extra credit, he might -
      - -- it’d be less than 15 years. Okay? You understand that?

            All right. So the reality of the situation is, if you give him 60
      years or more, you’re doing all that you can do. The question is -- --

             [DEFENSE COUNSEL]: Hold on a minute. Judge, I‘m going
      to object to that. That violates the -- the -- -- the charge of the Court.
      That‘s not to be considered by the jury, and I object to counsel
      arguing that.

                                          3
             THE COURT: Overruled.

            [PROSECUTOR]: The question is, ―what statement do you
      want to make?‖

(emphasis added).

      Appellant contends that the italicized remarks were improper because they

specifically invited jurors to consider the application of the parole law to him.

      In its response, the State contents itself to stand mute on the merits while

arguing procedural default and harmless error. We are not persuaded by the

State‘s preservation arguments, and, despite the State‘s underwhelming silence

on the merits, because of our disposition below, we need not address harm.

      The State first argues that Appellant‘s objection was too general to

preserve his complaint for review because he did not object that the prosecutor

improperly urged the jury to apply the parole laws specifically to him; instead he

objected that the argument violated the court‘s charge and was something the

jury could not consider. The State cites examples of cases wherein, after having

overruled objections, trial courts uttered something on the record positively

evincing their understanding of what the objections were about. But our rules of

error preservation require no such affirmative declarations by trial courts. At

most, a trial court need only rule on an objection, either expressly or implicitly.

Tex. R. App. 33.1(a)(2)(A). Moreover, even an imprecise objection preserves

error when ―the specific grounds were apparent from the context.‖ Tex. R. App.

P. 33.1(a)(1)(A); see Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App.

                                          4
1997) (―Where the record makes clear that the trial court understood an objection

and its legal basis, a trial court‘s ruling on that objection will be preserved for

appeal, despite an appellant‘s failure to clearly articulate the objection.‖). As the

court of criminal appeals has made abundantly clear:

      As regards specificity, all a party has to do to avoid the forfeiture of a
      complaint on appeal is to let the trial judge know what he wants, why
      he thinks himself entitled to it, and to do so clearly enough for the
      judge to understand him at a time when the trial court is in a proper
      position to do something about it. Of course, when it seems from
      context that a party failed effectively to communicate his desire, then
      reviewing courts should not hesitate to hold that appellate
      complaints arising from the event have been lost. But otherwise,
      they should reach the merits of those complaints without requiring
      that the parties read some special script to make their wishes
      known.

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

      Here, as the prosecutor discussed the paragraphs concerning parole laws

in the court‘s charge, Appellant objected, ―That violates the -- the -- -- the charge

of the Court. That‘s not to be considered by the jury, and I object to counsel

arguing that.‖ The objection is quite specific. In context, we think the trial court

understood the objection as a complaint that the prosecutor‘s comments urged

the jury to stray from the charge‘s instructions that it was not to consider how the

parole laws might be applied to Appellant.

      The State next argues that the objection does not comport with Appellant‘s

point on appeal. We have already held that Appellant‘s objection, ―That violates

the . . . charge of the court‖ was sufficient to inform the trial court and the

prosecutor the nature of Appellant‘s complaint. Appellant‘s point on appeal is

                                          5
that the prosecutor‘s remarks urged the jury to apply the parole laws specifically

to him, which Appellant contends violated the court‘s charge not to consider the

manner in which the parole law may be applied to him. This sufficiently comports

with Appellant‘s objection at trial. See Tex. R. App. P. 38.9.

      Finally, the State draws upon cases holding that opponents to the

admission of evidence must continue to object when similar evidence is offered

at the risk of forfeiting any claims based on the trial court‘s admission of evidence

to argue that failure to keep objecting to similar arguments also forfeits error. We

need not decide whether rules that apply to preserving complaints about

evidence properly apply to those about argument because we find nothing

objectionable in the arguments that the State claims Appellant should have

objected to in order to preserve his complaint about the arguments he did object

to.

      To conclude, we hold that Appellant has preserved his first point for

review. Therefore, we will consider its merits.

      In support of his contention that the prosecutor improperly urged the jury to

consider how the parole laws would be applied specifically to him, Appellant

relies on the reasoning and analysis of three cases from our sister courts––

Chester v. State, 167 S.W.3d 935 (Tex. App.—Amarillo 2005, pet. ref‘d); Perez v.

State, 994 S.W.2d 233 (Tex. App.—Waco 1999, no pet.); and Facundo v. State,

971 S.W.2d 133 (Tex. App.—Houston [14th Dist.] 1998, pet. ref‘d).



                                         6
      In Chester, during closing argument at punishment the prosecutor

remarked, ―If there is a 20 year sentence, Mr. Chester will not become eligible for

parole until his actual time served, plus whatever credit they give him for good

time served, equals 5 years . . . .‖ 167 S.W.3d at 936. The Seventh Court of

Appeals, after lauding the State for conceding error, held that the remarks were

harmful, and remanded for a new punishment hearing. Id. at 936–38.

      In Perez, the Tenth Court of Appeals held that the remarks, ―anything you

give him over 60 years, he’s eligible for parole after 30 years‖ and that asking the

jury to ―set the proper sentence‖ based on this information improperly

encouraged the jury to consider the effects of parole on Perez‘s punishment and

were therefore improper. 994 S.W.2d at 237 (emphasis in original).

      And in Facundo, the Fourteenth Court of Appeals held that the trial court

properly sustained the State‘s objections to defense counsel‘s arguing at

punishment, ―But when you examine what Our Honor told you on the parole

factor, remember this and read the law here, and basically what this says is: For

example, if you assess ten years in prison, what it says here, he’s got to serve

five years flat‖ and ―if the defendant is sentenced to a term of imprisonment, he

will not become eligible for parole until the actual time served equals one-half of

the sentence imposed. So you can do simple mathematics on that.‖ 971 S.W.2d

at 135–36 (emphasis in original).

      The reasoning in these cases may be traced to one of ours. See Chester,

167 S.W.3d at 937 (citing Facundo, 971 S.W.2d at 135–36); Perez, 994 S.W.2d

                                         7
at 237 (citing Taylor v. State, 911 S.W.2d 906, 912, 914 (Tex. App.—Fort Worth,

1995, pet. ref‘d); Facundo, 971 S.W.2d at 136 (citing Taylor, 911 S.W.2d at 911).

In Taylor, a panel of this court held that closing arguments at the punishment

phase were proper because the prosecutor did not make any attempt to apply

the parole instructions in the charge specifically to the defendant. 911 S.W.2d at

912. We observed that while counsel may explain the existence of parole rules

as set out in the charge, generally, counsel must take caution to avoid applying

those rules specifically to the defendant on trial. Id. at 911.

      We are not, of course, bound by the decisions of our sister courts,

generally, or by our own, particularly, when it becomes apparent that our

reasoning was unsound. And it should go without saying that we cannot follow

our earlier decisions when they are later overturned, explicitly or otherwise, by

the court of criminal appeals.

      The reasoning these cases relied upon, and upon which Appellant now

seizes, appears not to have survived the court of criminal appeals‘ more recent

decision in a case also styled Taylor v. State, and found at 233 S.W.3d 356 (Tex.

Crim. App. 2007). In that Taylor, the court of criminal appeals held that it was not

improper for prosecutors to explain how the parole eligibility rules set out in jury

charges applied to certain sentences and to specific defendants. Id. at 358–59.

There, the appellant had complained of remarks made by the prosecutor that

bear a striking resemblance to those that the Amarillo Court of Appeals held

improper in Chester:

                                          8
      A 40-year sentence means the defendant becomes eligible for
      parole after serving 20 years.

      ....

      A 60-year sentence means he becomes eligible after serving 30
      years. A sentence of life or 75 still means he becomes eligible after
      30 years.

Id. at 358–59.

      Judge Keller wrote for the majority that the issue was ―whether it was

improper for [the prosecutor] to explain how these parole eligibility rules applied

to certain sentences, and also whether [the prosecutor] stepped over the line by

incidentally referring to ‗the defendant‘ and ‗he‘ in his explanation.‖ Id. at 358.

The court of criminal appeals answered both questions ―no,‖ reasoning that:

      In Hawkins v. State, [135 S.W.3d 72, 84 (Tex. Crim. App. 2004)] we
      explained that ―[i]t was not improper for the prosecutor to accurately
      restate the law given in the jury charge.‖ [footnote omitted] In the
      case before us, the prosecutor did not convey any information
      beyond what was properly contained in the charge when he
      explained how the parole eligibility rules set out in the charge
      worked with forty, sixty and seventy-five year sentences. The
      explanation simply ensured that the jury understood the language
      set out in the instructions. Nor do we ascribe any significance to the
      prosecutor‘s passing use of the words ―defendant‖ and ―he‖ in the
      course of giving his explanation. The statutory instruction itself uses
      the words ―defendant‖ and ―he‖ when describing the rules of parole
      eligibility. Nothing in this case indicates that the prosecutor‘s
      explanations went beyond an attempt to clarify the meaning of the
      jury instructions.

Id. at 359.

      Judge Womack, joined by Judges Meyers and Price, concurred, opining

that the reason the prosecutor‘s remarks were not error was explained by Justice


                                        9
Frost in another concurring opinion. Id. at 360 (Womack, J., concurring) (citing

Byrd v. State, 192 S.W.3d 69, 72 (Tex. App.—Houston [14th Dist.] 2006, pet.

ref‘d) (Frost, J., concurring). Judge Womack quoted Justice Frost approvingly:

      [I]n cases involving an article 37.07, section 4(a) jury instruction,[1]
      the jury may base its assessment of punishment in part on
      consideration of a sentenced defendant‘s parole eligibility under the
      formula contained in the instruction; however, a jury may not base its
      assessment of punishment on speculation as to when, if ever, the
      defendant may be released on parole after becoming eligible for
      parole. Therefore, the jury instruction in article 37.07, section 4(a)
      that the jury is ―not to consider the manner in which the parole law
      may be applied to this particular defendant‖ refers to speculation
      about when, if ever, this particular defendant might be released on
      parole. It does not refer to the jury‘s consideration of a sentenced
      defendant‘s parole eligibility under the formula contained in the
      instruction.

Id. at 360 (Womack, J., concurring) (quoting Byrd, 192 S.W.3d at 72 (Frost, J.,

concurring) (citations omitted)).

      This is sound reasoning. A jury must base its punishment decision upon

the evidence before it. It may not base its decision on evidence that may or may

not exist at some point in the future. There will never be evidence at trial of

whether prison authorities will extend or withdraw good-conduct time to a

particular defendant because those decisions will be made, if ever, by prison


      1
        The instructions in sections 4(a) and 4(b), which applied in the instant
case, are practically identical. They differ in that 4(a) states that parole eligibility
occurs when actual time served equals the lesser of one-half of the sentence
imposed or 30 years, without consideration for good conduct time, whereas 4(b)
states that eligibility occurs when actual time plus any good-conduct time equals
the lesser of one-fourth of the sentence imposed or 15 years. Compare Tex.
Code Crim. Proc. Ann. art. 37.07, § 4(a) with id. at § 4(b).

                                          10
authorities after that convicted defendant begins serving his sentence. Thus,

juries properly are instructed not to consider ―the extent to which good[-]conduct

time may be awarded to or forfeited by this particular defendant.‖ Tex. Code

Crim. Proc. Ann. art. 37.07, § 4. Likewise, there will never be evidence at trial of

how parole authorities will apply parole laws to decide whether a particular

defendant will be awarded parole because those laws are applied after that

convicted defendant becomes eligible for parole.           Thus, juries properly are

instructed that they ―are not to consider the manner in which the parole law may

be applied to this particular defendant.‖ Id. Any consideration at trial of whether

the defendant would be awarded or would forfeit good-conduct time or how the

parole laws would be applied to him would necessarily be based on speculation.

That is why such consideration, properly, is prohibited.

      But juries are not instructed not to use the parole eligibility instructions in

the charge to fashion a sentence that ensures that defendants will become

eligible at the most distant possible date.      To impose such a prohibition is

inconsistent with the instruction itself.     Equating the prohibition of inviting

speculation as to when a specific defendant might be paroled with one that seeks

to prevent juries from using the formula they are given in the charge to affect

parole eligibility leads to the absurd expectation that juries can consider the

existence of good-conduct time, and how that works into the formula for

determining parole eligibility but still refrain from applying that formula in working

out an appropriate punishment.

                                         11
      What a jury can properly do, in following the charge, is determine how long

a term it wishes a defendant to serve before that defendant may become eligible

for parole because the jury is instructed on good-conduct time and is furnished

the formula for determining eligibility. See id. A jury, however, may not consider

when, if ever, that defendant actually might be awarded parole (it must disregard

whether the defendant will receive or forfeit good-conduct time and whether he

will be awarded parole). See Turner v. State, 87 S.W.3d 111, 116 (Tex. Crim.

App. 2002), cert denied, 538 U.S. 965 (2003). These are distinct issues one of

which is properly placed into the hands of jurors, to some degree, and the other

of which is properly in the hands of officials in whose keep the defendant is

placed after the jury has done its part in sentencing.

      Here, Appellant complains of the remark, ―So if he has good-conduct time

that gives him extra credit, he might -- -- it’d be less than 15 years. Okay? You

understand that?‖ But the charge states that ―the defendant, if sentenced to a

term of imprisonment, may earn time off the period of incarceration imposed

through the award of good[-]conduct time‖ and that ―he will not become eligible

for parole until the actual time served plus any good[-]conduct time earned

equals one-fourth of the sentence imposed or fifteen (15) years, whichever is

less.‖ The highlighted portions of the prosecutor‘s remarks were nothing more

than accurate restatements of the instructions in the charge. In explaining how a

sixty-year sentence would work, he said, ―So if he has good-conduct time that



                                         12
gives him extra credit, he might -- -- it’d be less than 15 years.‖ We hold that

there is no error in this part of the argument.

      Appellant also complains of the remark, ―So the reality of the situation is, if

you give him 60 years or more, you’re doing all that you can do.‖ This, too is true

to the charge. One-fourth of sixty is fifteen. Because the charge states that

Appellant would become eligible for parole when any accrued good-conduct time

and actual time served reached one-fourth of the sentence or fifteen years,

whichever is less, any sentence beyond sixty years does not affect when

Appellant would become parole eligible under the formula in the charge. From

the perspective of a jury that might wish to assure that Appellant stay

incarcerated for as long as possible, a sentence of sixty years is all that jury can

do. In so doing, it does not resort to speculation about how much, if any, good-

conduct time appellant might receive or forfeit or whether he might be released

early on parole, it merely applies the mathematical formula in the charge.

Certainly a prosecutor is entitled to argue for a stiff sentence. And indeed, it has

been noted that the purpose of the Legislature‘s change in the statute to allow

juries to consider the existence of good-conduct time and release on parole was

to produce longer sentences. See Grigsby v. State, 833 S.W.2d 573, 573–76

(Tex. App.—Dallas 1992, pet. ref‘d); Parker v. State, No. 08-03-00172-CR, 2004

WL 2113050, at *11 (Tex. App.—El Paso Sept. 23, 2004, no pet.) (not

designated for publication).



                                          13
      In conclusion, we hold that the prosecutor‘s remarks accurately restated

the law given in the jury charge. See Taylor, 233 S.W.3d at 359. Nor was there

any error in referring specifically to Appellant. See id. The prosecutor did not

convey any information beyond what was properly contained in the charge, and

he did not urge the jury to make a decision on punishment based on speculation

of matters that were not properly before it. See id.; Hawkins, 135 S.W.3d at 84.

          IV. Remarks Appellant Claims Were Outside the Record

      In points two through five, Appellant complains that the following remarks

from the State‘s closing argument at the end of the punishment phase were

outside the record:

            [THE PROSECUTOR]: Because no matter what you give him,
      you can‘t guarantee when he‘s next going to be out there, drinking
      and driving. That‘s the reality of the situation.

            And you know what? He hasn‘t hurt anybody yet. And - - and
      that has to be said. What if it had been a little girl or boy standing on
      the corner instead of just a curb?

      [Appellant‘s objection to ―counsel arguing facts that are not in
      evidence‖ overruled.] (Emphasis as given in Appellant‘s brief).

              [THE PROSECUTOR]: I do feel sorry for this [Appellant‘s]
      family. But you know what? Every day that he‘s in the penitentiary,
      they‘re going to know that he‘s safe, that he‘s not out there about to
      kill himself out on the roads, or kill somebody else, they‘re going to
      know exactly - -

            [DEFENSE COUNSEL]: Judge, whoa, whoa, whoa, whoa.
      I‘m going to object to - - I‘m going to object to that. That‘s improper
      argument about this defendant killing somebody. Now, that is not
      base - - that is not the evidence in this case, and I object to it.

            [Objection overruled.]

                                         14
       [THE PROSECUTOR]: And when he goes down to the
penitentiary, what message does he carry with him? ―Oh, I was
arrested six times for DWI, convicted five times, and they gave me
the minimum sentence.‖ I can‘t - - I can‘t in good conscience agree
that that‘s the right thing to do.

      THE COURT: Two minutes, counsel.

       [THE PROSECUTOR]: The reality of the situation is I cannot
live with myself if one day a few years later from now I picked up the
paper and I saw that this man had run over somebody and killed
them.

      [DEFENSE COUNSEL]: Now Judge, wait a minute, I‘m going
to object to that. That is absolute speculation, surmise and
suspicion of this lawyer, not based on one fact in this evidence and I
object to it.

      THE COURT: Overruled.

       [DEFENSE COUNSEL]: I specifically object to running over
and killing somebody in the record.

(Emphasis as given in Appellant‘s brief).

      [THE PROSECUTOR]: I could not live with myself if I picked
up the paper and read something like that, even if he had run off the
road in a ditch and killed himself - -

      [DEFENSE COUNSEL]: Object, Judge - -

      [PROSECUTOR]: - -when he could have been - -

     [DEFENSE COUNSEL]:           I object for the same reason, on
speculation, surmise - -

      [Running objection granted.]

    - - when he could have been safe and sound somewhere else,
somewhere his family can visit him.



                                 15
             I ask that you give him 60 years. That‘s my recommendation,
      because by doing that, you‘re putting him away for as long as you
      can, but you‘re not telling him he‘s a bad person, you‘re keeping our
      community safe, and you‘re sending a message with him that we will
      not tolerate this type of behavior, ―we will not tolerate this type of
      behavior.‖

(Emphasis as given in Appellant‘s brief).

      Appellant contends that by overruling his objections, the trial court erred

because the prosecutor improperly argued matters outside the record.2

      In Strahan v. State, the court of criminal appeals held that the prosecutor‘s

remarks during closing argument in a DWI trial, ―When you and your family are

on these highways driving you can‘t help but sometimes wonder if some drunk

driver is going to hit you, run over you and kill you,‖ was an appeal for strict law

enforcement and presented no error. 358 S.W.2d 626, 627 (Tex. Crim. App.

1962). Similarly, the court of criminal appeals held that the argument, ―And I ask

you to find the defendant guilty and all those like him because we are all going to

get in our cars, and we are going to go home‖ was ―nothing more than a plea for

law enforcement.‖    Nichols v. State, 504 S.W.2d 462, 465 (Tex. Crim. App.

1974).

      2
       To the extent that Appellant‘s complaint is that the prosecutor‘s remarks to
the effect that he could not live with himself if he read that Appellant had killed
someone improperly injected the prosecutor‘s personal opinion, we hold that
Appellant‘s objections at trial preserved only his claim that the prosecutor
improperly urged the jury to speculate about evidence not in the record; i.e., that
someone could have been injured or killed. See Tex. R. App. P. 33.1(a)(1)(A);
Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh‘g), cert.
denied, 526 U.S. 1070 (1999); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App.
1996), cert. denied, 522 U.S. 827 (1997).

                                        16
      In Pittman v. State, the appellant in a DWI trial had been stopped after

driving through a traffic light four seconds after it turned red; but there was no

evidence that he had injured anyone. 9 S.W.3d 432, 434 (Tex. App.—Houston

[14th Dist.] 1999, no pet.) Several times during closing argument, the prosecutor

remarked to the effect that the appellant ―is going to kill someone some day.‖ Id.

The prosecutor also argued that prison is ―one place where we know that he

can‘t go kill someone.‖ Id. The Fourteenth Court of Appeals held that ―the seven

statements relating to appellant killing another person‖ were all ―proper pleas for

law enforcement.‖ Id.

      In Yocom v. State, we held that where, although there was no evidence in

the appellant‘s DWI trial that he had injured anyone, the prosecutor‘s remark, ―He

made it somehow to Euless. Are we lucky nobody died? Yes, we are‖ was a

reasonable deduction from the evidence where the evidence showed that the

appellant had admitted drinking at a bar in Dallas, was extremely intoxicated, and

had pulled over in Euless because he was not feeling well. No. 02-03-00181-CR,

2004 WL 742888, at *1, *12 (Tex. App.—Fort Worth Apr. 8, 2004, pet. ref‘d) (not

designated for publication).

      And finally, in Bobbit v. State, we held that the prosecutor‘s argument in a

DWI trial that drunk drivers like the defendant injure or kill innocent people was

an unobjectionable plea for law enforcement as well as a reasonable deduction

from the evidence. No. 02-01-00506-CR, 2003 WL 21197606, at *1 (Tex. App.—

Fort Worth May 22, 2003, no pet.) (mem. op., not designated for publication).

                                        17
      Based on these precedents, we hold that the prosecutor‘s remarks in this

case referring to the risks of injury or death imposed by drunk drivers, regardless

of the lack of evidence in the record that someone was injured or killed, are

proper pleas for law enforcement.

      Furthermore, the remarks were proper responses to arguments made by

opposing counsel. Before the remarks of which Appellant complains, Appellant‘s

counsel had argued, ―There‘s no evidence in this case that Berry Waters ever

hurt anybody.    Berry Waters is not a murderer, he‘s not a rapist, he hasn‘t

abused your children or mine, he hadn‘t committed sexual assaults, he hadn‘t

done all the things that - - he‘s not a pedophile. He hasn‘t done those kind[s] of

things that I tell you that justify, in my opinion, a long-term prison sentence.‖ He

also argued, ―And I‘ll say to you on behalf of this [Appellant‘s] family, please don‘t

punish Berry for being some kind of criminal. Please don‘t punish him for being

some kind of a violent guy that you‘re afraid to put back on the streets of the

community.‖ Given Appellant‘s counsel‘s argument that Appellant didn‘t deserve

a long prison term because he didn‘t hurt anybody, the prosecutor‘s remarks

were proper responses. See Borjan v. State, 787 S.W.2d 53, 55 (Tex. Crim.

App. 1990). Accordingly, we overrule points two through five.




                                         18
                                V. Conclusion

      Having overruled all of Appellant‘s points, we affirm the trial court‘s

judgment.


                                                LEE GABRIEL
                                                JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J., filed a dissenting opinion.

PUBLISH

DELIVERED: November 4, 2010




                                      19
                          COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH

                                NO. 02-10-00080-CR


WILLIAM BERRY WATERS, III                                               APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


                                      ------------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                      ------------

                             DISSENTING OPINION
                                      ------------

      I agree with the majority that it is ‖absurd‖ to expect ―juries [to] consider the

existence of good-conduct time[] and how [it factors] into the formula for

determining parole eligibility but still refrain from applying that formula in

[determining] an appropriate punishment.‖3 It is particularly absurd when the

State‘s jury argument dwells on computing the mathematics of parole law as

applied to the specific defendant:

      3
       Majority op. at 11.
                                          20
            So if he has good-conduct time that gives him extra credit, he
      might — — it’d be less than 15 years. Okay? You understand that?

            All right. So the reality of the situation is, if you give him 60
      years or more, you’re doing all that you can do.

      The Texas Court of Criminal Appeals has instructed us that the jury is ―not

to consider the manner in which the parole law may be applied to [a] particular

defendant‖ but that it is perfectly acceptable for the jury to consider how the

parole law applies to the particular defendant by deciding the earliest date on

which the jury wants the particular defendant to first become eligible for parole. 4

Rather than play semantic games, we should look to the plain meaning of the

statute.5 But it makes no sense:

              In the penalty phase of the trial of a felony case in which the
      punishment is to be assessed by the jury rather than the court, if the
      offense is punishable as a felony of the first degree, if a prior
      conviction has been alleged for enhancement of punishment as
      provided by Section 12.42(b), (c)(1) or (2), or (d), Penal Code, or if
      the offense is a felony not designated as a capital felony or a felony
      of the first, second, or third degree and the maximum term of
      imprisonment that may be imposed for the offense is longer than 60
      years, unless the offense of which the jury has found the defendant
      guilty is an offense that is punishable under Section 21.02(h), Penal
      Code, or is listed in Section 3g(a)(1), Article 42.12, of this code or
      the judgment contains an affirmative finding under Section 3g(a)(2),
      Article 42.12, of this code, the court shall charge the jury in writing as
      follows:



      4
      See Taylor v. State, 233 S.W.3d 356, 360 (Tex. Crim. App. 2007)
(Womack, J., concurring) (quoting Byrd v. State, 192 S.W.3d 69, 76 (Tex. App.—
Houston [14th Dist.] 2006, pet. ref‘d) (Frost, J., concurring)).
      5
       See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(b) (Vernon Supp. 2010).

                                         21
             Under the law applicable in this case, the defendant, if
      sentenced to a term of imprisonment, may earn time off the period of
      incarceration imposed through the award of good conduct time.
      Prison authorities may award good conduct time to a prisoner who
      exhibits good behavior, diligence in carrying out prison work
      assignments, and attempts at rehabilitation. If a prisoner engages in
      misconduct, prison authorities may also take away all or part of any
      good conduct time earned by the prisoner.

            It is also possible that the length of time for which the
      defendant will be imprisoned might be reduced by the award of
      parole.

            Under the law applicable in this case, if the defendant is
      sentenced to a term of imprisonment, he will not become eligible for
      parole until the actual time served plus any good conduct time
      earned equals one-fourth of the sentence imposed or 15 years,
      whichever is less. Eligibility for parole does not guarantee that
      parole will be granted.

            It cannot accurately be predicted how the parole law and good
      conduct time might be applied to this defendant if he is sentenced to
      a term of imprisonment, because the application of these laws will
      depend on decisions made by prison and parole authorities.

           You may consider the existence of the parole law and good
      conduct time. However, you are not to consider the extent to which
      good conduct time may be awarded to or forfeited by this particular
      defendant. You are not to consider the manner in which the parole
      law may be applied to this particular defendant.6

      The legislature could solve the problem by admitting that it wants the jury

to consider how the parole law might apply to a particular defendant and by

expressly allowing evidence and argument on parole eligibility. Or the legislature

could remove its mandate requiring the nonsensical jury instruction and state

clearly that parole should not be placed before the jury because the jury‘s

      6
       Id.

                                       22
function is to decide the appropriate sentence for the defendant based on the

facts of the case as they stand on the day of trial. But courts should not expand

or contract the clear language of a statute, no matter how nonsensical it may be.

      To say that a jury who is urged to consider a particular defendant‘s parole

eligibility date is not considering how the parole law applies to that particular

defendant defies any rational thought. I am aware that this court is required to

follow the precedent of the Texas Court of Criminal Appeals,7 and I realize that

the majority does exactly what it is required to do in following that precedent. But

because the reasoning and the result so directly conflict with the clear legislative

mandate, conscience requires that I respectfully dissent.



                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PUBLISH

DELIVERED: November 4, 2010




7
See Taylor, 233 S.W.3d at 359.
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