Alejandro v. State

493 S.W.2d 230

• Court: Court of Criminal Appeals of Texas
• Decided: April 11, 1973
• Docket: 46383
• Status: Published

Opinions

OPINION

ODOM, Judge.

Appellant entered a plea of guilty to the offense of unlawful possession of a narcotic drug, to-wit: marihuana; punishment was assessed by the jury at 25 years.

Complaint is made that reversible error was committed when the prosecutor went outside the record in his closing jury argument.

The record shows that, appellant’s counsel argued for a probated sentence, and stated:

“ . . . this defendant will be best served by giving him supervision, and if that supervision doesn’t work, then of course he will be sent off to the penitentiary.”

The prosecutor responded in his closing argument as follows:

“You can turn him back out on the street and let him report to a probation officer once a month — a probation officer that has 350 probationers.

“MR. GLADDEN: Objection, Your Honor.

“THE COURT: I’ll overrule your objection.

“MR. WEBB: The law says that our probation officer in this court right here should have no more than 75 probationers, and he’s got 350—

We’ve got a unit down there called the Ferguson Unit at the Texas Department of Corrections. The Ferguson Unit is for the first offenders. This man can get a Junior College education down there in the Ferguson Unit.”

Such argument was clearly outside the record and was improper. Recently we have had an alarming number of improper jury arguments to consider¹ and it is hoped that the warning signal has been heard. Needless to say, the prosecutor sees all his trial work go for naught if the case has to be reversed because of improper jury argument.

In 56 Tex.Jur.2d, Trial, Section 271, p. 613, it is written:

“It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper.”

To receive the stamp of approval of this court, jury arguments need to be within the areas of: (1) summation of the evidence, e.g., Ward v. State, Tex.Cr.App., 474 S.W.2d 471; Andrews v. State, 150 Tex.Cr.R. 95, 199 S.W.2d 510; (2) reasonable deduction from the evidence, e.g., Frazier v. State, Tex.Cr.App., 480 S.W.2d 375; Archer v. State, Tex.Cr.App., 474 S.W.2d 484; (3) answer to argument of opposing counsel, e.g., Turner v. State, Tex.Cr.App., 482 S.W.2d 277; Miller v. State, Tex.Cr.App., 479 S.W.2d 670; and (4) plea for law enforcement, e.g., Minafee v. State, Tex.Cr.App., 482 S.W.2d 273; Langham v. State, Tex.Cr.App., 473 S.W.2d 515. The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney.

We hold that reversible error was committed by the improper jury argument. Compare Stearn v. State, supra, and cases cited therein.

In light of our disposition of the case on this ground, other grounds of error will not be discussed.

The judgment is reversed and the cause remanded.

ROBERTS, J., concurs in the results. DOUGLAS, J., dissents.

1 . See, e. g., Lott v. State, Tex.Cr.App., 490 S.W.2d 600 (1973) ; Washington v. State, Tex.Cr.App., 488 S.W,2d 445 (1972) ; Hodge v. State, Tex.Cr.App., 488 S.W.2d 779 (1972) ; Stearn v. State, Tex.Cr.App., 487 S.W.2d 734 (1972).