Kirk v. State

261 S.W.2d 721, 159 Tex. Crim. 124, 1953 Tex. Crim. App. LEXIS 1807

Opinion

MORRISON, Judge.

The two prior opinions herein are withdrawn.

The offense is assault with intent to murder; the punishment, fifteen years.

In view of our disposition of this cause, a recitation of the facts is not deemed necessary.

Bill of Exception No. 1 complains of the argument of the assistant criminal district attorney in which he said: “He (defendant) has been to the penitentiary before. I know. I sent him to the penitentiary and I also helped him get out of other trouble.”

We have carefully searched the record before us and fail to find any evidence that the prosecutor making this argument had ever helped the appellant out of any other trouble. When he made such argument the prosecutor injected a new and harmful fact into the case, in violation of Article 667, C. C. P.

The appellant’s second motion for rehearing is granted, and the judgment is now reversed and the cause remanded.