Ray v. State

382 S.W.2d 270, 1964 Tex. Crim. App. LEXIS 1058

Opinions

MORRISON, Judge.

The offense is sodomy; the punishment, two years.

In view of our disposition of this cause, a recitation of the facts will not be deemed necessary other than to observe that the defense was that of alibi and that one of the witnesses, who according to the State’s testimony was present with the injured party and appellant prior to the commission of the act charged, failed to identify appellant as being the man in question. There was no testimony that appellant was placed in a lineup at the time he was identified by the boy who did identify him.

During the course of his argument, the prosecutor said:

“We were asked the question; I don’t know if the jury was asked the question, or if I was asked it, Mr. Richie, you asked, ‘Did they have a lineup ? ’ We have a police report here; (displaying sheet of paper from his file) it’s exactly what happened * *

The court refused to grant appellant’s motion for a mistrial. This presents substantially the same question that was before this Court in Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191, which was reversed because the prosecutor went outside the record in his argument.

Upon another trial, the court should respond to appellant’s objections to the charge concerning extraneous offenses. Judge Lattimore in Lankford v. State, 93 Tex.Cr. R. 442, 248 S.W. 389, clearly demonstrated the necessity for the charge as requested.

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