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Click here for the full text of this decision FACTS:Horace Chester appeals his conviction for possessing .07 grams of cocaine. His two issues involve the propriety of the state’s jury argument. He contends that the trial court erred by overruling his objection to the state’s application of the parole laws to potential sentences the jury could levy against him. HOLDING:Reversed. The comments made about how the parole laws would affect appellant’s sentence if a 20-year term was levied violated the Texas Code of Criminal Procedure, according to appellant. Laudably, the State conceded the accuracy of appellant’s argument. To determine whether the error affected substantial rights of the appellant, the court examines 1. the severity of the misconduct; 2. the measures adopted to cure the misconduct; and 3. the certainty of the punishment assessed absent the misconduct. Hawkins v. State, 135 S.W.3d 72 (Tex. Crim. App. 2004). The court notes that the improper comments were one of the last things said to the jury before it retired to deliberate punishment. The error served to inform the jury that irrespective of whatever sentence it imposed, the appellant may well serve far less time in prison. This could easily be interpreted as inducement to assess a longer term of imprisonment based on factors other than those permitted by the Legislature; indeed, the latter expressly prohibited the consideration of parole in setting punishment. The court concludes that the error may be deemed severe. The trial court overruled appellant’s objection. The decision to overrule the objection may well have been seen by the jurors as judicial approval of the mistake. Good v. State, 723 S.W.2d 734 (Tex. Crim. App. 1987). While the trial court admonished the jury, via its written charge, against considering how the laws concerning good time and parole related to appellant, the court cannot say with any assurance that the jury heeded the admonition. After hearing the trial court conceivably approve the state’s argument by overruling appellant’s objection, the jury specifically asked the court about the length of time appellant actually served when previously sentenced to prison. This question certainly suggests that the jurors were considering the possibility of early release due to parole and good time despite the instruction. This same question, when coupled with the timing of the error, also renders uncertain the likelihood that the same sentence would have been levied if the argument had not been made, the court states. “[W]e have grave reservations about whether the trial court cured the prejudice emanating from the mistake and the likelihood that the same sentence would have been assessed irrespective of the argument.” “Informing the jurors about parole and good time and then directing them to forego applying those factors to the sentence they are determining is akin to placing chocolate in one’s mouth and then being told not to chew it. Yes, one can spit it out, but the taste still lingers. So, one can wonder if the charge itself caused harm. Yet, the legislature has spoken on the matter and informed all that jurors are not to consider parole and good time in the way the jury probably did here. We cannot nullify that edict when the circumstances evince that those topics were indeed factored into the sentence.” OPINION:Quinn, C.J.; Quinn, C.J., Reavis and Hancock, JJ.

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