Martinez v. State

In Martinez v. State, 17 S.W.3d 677 (Tex. Crim. App. 2000), the Court of Criminal Appeals was asked to reverse a death penalty conviction in light of the following jury argument at the conclusion of the punishment stage of trial: PROSECUTOR: And based on this evidence, this--this rates as one of the worst crimes, one of the worst killings not only in Brazoria County but the State of Texas. DEFENSE COUNSEL: Objection, your honor. That's not in the record. THE COURT: Stay in the record, counsel. PROSECUTOR: The evidence shows you, these were execution killings. 26 to 28 bullets. The family of the murdered victims, the family--the victims themselves, they cry out to you, for the death penalty in this case. There's no more-- DEFENSE COUNSEL: Objection, your Honor. Not in the record, either. Absolutely no evidence of that. THE COURT: Overruled. PROSECUTOR: Justice in this case requires you, because we told you from day-one, what we wanted was a fair jury, a jury that would do justice in this case. Martinez, 17 S.W.3d at 692. The court concluded that the degree of misconduct, if any, was relatively mild in the present case. The prosecutor's comment that the victims and their families cry out for the death penalty appears to be intended as a plea for law enforcement. The jury was in a position to know that victims who are dead cannot presently cry out for the death penalty, and that, given the facts surrounding their deaths, no such cries were made before they died. Nor would the jurors be surprised to hear that the victims 'families would be upset with appellant or that they would want retribution. And the prosecutor did not attempt, through this argument, to convey any specific facts about the effect of the victims' deaths upon their families. Instead, the prosecutor was pleading with the jury to give the death penalty because the record before the jury showed that the defendant deserved it. To the extent that the prosecutor conveyed facts outside the record, such facts had no tendency to adversely influence the jury against appellant beyond the influence exerted by a wholly legitimate plea for law enforcement. Id. at 693.