Fowler v. State

500 S.W.2d 643, 1973 Tex. Crim. App. LEXIS 2784

Opinions

OPINION

JACKSON, Commissioner.

The convictions were for burglary and assault with intent to murder, growing out of the same transaction; the punishment, 12 and 18 years, respectively. Both cases were tried together.

In his brief appellant presents to us four grounds of error, but since we have concluded that the case must be reversed and remanded on ground of error number four, we pretermit discussion of the others.

In his closing argument to the jury, the assistant district attorney said:

“I am certainly not going to prosecute a man that I don’t feel in my own heart is guilty.

“DEFENSE ATTORNEY: We object to that, Your Honor, that is testimony and we are entitled to cross-examine him if he is going to say things like that.

“THE COURT: I overrule the objection. Keep your seat, counsel, you have had your say.

“DEFENSE COUNSEL: Note our exception, Your Honor.

“THE COURT: Go ahead, Mr. Eu-banks.”

While counsel may draw reasonable deductions from the evidence, it is not permissible to inject their personal opinions into argument, lest they convey to the jury the idea that they have bases for their conclusions in addition to the evidence before the jury. Spinks v. State, 157 Tex.Cr.R. 612, 252 S.W.2d 159; Hickerson v. State, 162 Tex.Cr.R. 446, 286 S.W.2d 437. See also Bray v. State, Tex.Cr.App., 478 S.W.2d 89; Baldwin v. State, Tex.Cr.App., 499 S.W.2d 7 (1973).

If the court had sustained the objection and instructed the jury not to consider this argument, the error might not have resulted in reversal. Ramos v. State, Tex.Cr.App., 419 S.W.2d 359; Blackstock v. State, Tex.Cr.App., 433 S.W.2d 699; Reyes v. State, Tex.Cr.App., 388 S.W.2d 433.

We have examined the entire record and the argument of the defense attorney preceding the argument complained of, in the light of the State’s contentions that such argument was invited and was in legitimate reply to the argument of defense counsel, but do not find that the record supports this conclusion.

For the error of the court in overruling the objection to the argument quoted, we reverse the judgments and remand the causes for new trials.

Opinion approved by the Court.