Lookabaugh v. State

352 S.W.2d 279, 171 Tex. Crim. 613, 1961 Tex. Crim. App. LEXIS 4558

Opinions

MORRISON, Judge.

The offense is driving while intoxicated: the punishment, 3 days in jail and a fine of $50.00.

In view of our disposition of this case, a recitation of the facts will not be deemed necessary other than to observe that there is no evidence in the record that appellant had ever before been convicted of any offense.

In his argument to the jury, appellant’s counsel urged them to acquit appellant because if they convicted him it would mean that he had to go to jail and that such fact would ruin his life.

In his closing argument, the prosecutor said, “It’s a reasonable deduction, since he went into this, that this isn’t the first time this man has been in jail.” After the motion for mistrial was overruled, the prosecutor continued, “You are not going to degrade him and you’re not going to ruin his life. I can’t go any further. I have been overruled on that.”

As stated, we find nothing in the record to authorize the “reasonable deduction” of the prosecutor that appellant had prior to the commission of this offense been confined in jail on other charges. The testimony reflected no prior confinement in jail. The purpose of argument is to assist the jury in properly analyzing the evidence and arriving at a verdict based on the evidence alone. By this unsworn statement, the prosecutor got before the jury evidence which was outside the record and extremely harmful to accused. We have consistently held that such conduct constitutes reversible error. See Kirk v. State, 159 Tex. Cr. Rep. 124, 261 S.W. 2d 721; Gonzales v. State, 159 Tex. Cr. Rep. 108, 261 S.W. 2d 577, and the cases there cited.

For the error pointed out, the judgment is reversed and the cause is remanded.