¶1dissenting.
¶2In Jefferson v. State, 751 S.W.2d 502 (Tex.Cr.App.1988) (Dissenting, Duncan, J.), I dissented because the majority gratuitously permitted the State to ignore the court of appeals and pursue a constitutionally predicated claim directly in this Court through a petition for discretionary review. In the present case, the majority has permitted the appellant to similarly ignore the court of appeals and bootstrap a contention of unconstitutionality upon a claim that the State's jury argument was improper.
¶3In the court of appeals, the appellant argued that the prosecutor indirectly, but nonetheless improperly, commented on how long he would have to remain in the penitentiary relative to the instruction then authorized by Article 37.07, § 4(b), Y.A.C.C.P. The court of appeals rejected his contention, concluding that the argument was “a mere paraphrasing of the court’s statutorily authorized jury charge.” Rodriquez v. State, 721 S.W.2d 504 (Tex.App. — Houston [14th] 1986). The appellant did not assert that Article 37.07, § 4(b), supra, was unconstitutional.
¶4In his petition for discretionary review, the appellant again claims only that the jury argument rather than the jury charge was improper. That is the basis upon which the petition for discretionary review was granted. The first time the appellant alleges the statute is unconstitutional is in his Brief on Discretionary Review. That constitutes a procedural default as to the issue of the statute’s constitutionality.
¶5This Court should review the claimed error as identified in the petition for discretionary review and not permit the appellant to so belatedly claim a constitutional defect.
¶6Consequently, I dissent.