defense attorney's statement that the prosecutor was standing behind the defendant when he raised his voice and looked down at the defendant and said "there is somebody that we haven't heard from in this case," was accepted by this Court as being true since it was "undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made."
How later courts described this case
- defense attorney's statement that the prosecutor was standing behind the defendant when he raised his voice and looked down at the defendant and said "there is somebody that we haven't heard from in this case," was accepted by this Court as being true since it was "undisputed by the prosecutor and unquestioned and unqualified by the court in whose presence the statement was made."
- accepting defense counsel statement describing prosecutor’s physical actions –20– during improper argument when statement was undisputed by prosecutor and was unquestioned or unqualified by trial court
- “[T]he prosecutor was standing behind the appellant when he raised his voice, looked down at the appellant and stated, ‘But there is somebody that we haven’t heard from in this case. And I think you all know who it is.’”
- defense counsel's unsworn statements included in statement of facts put matter before the court
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(concurring).
I agree that this conviction must be reversed, but I would hold that Article 40.-09(4), Vernon’s Ann.C.C.P., does not alone control our determination of the issue presented.
Appellant’s counsel urged that the record should reflect the occurrence of certain observable events, which counsel described with specificity. On the basis of these events, which were part of the prosecutor’s argument, counsel objected that the prosecutor was commenting on the appellant’s failure to testify.
The prosecutor then urged that the record should reflect that he was talking about Dr. Stockton in his previous comments. This statément by the prosecutor was merely a self-serving statement of alleged intent; in no way did it dispute the statement of appellant’s counsel that the observable events had in fact occurred.
The same is true of the trial court’s comment, “I’ll overrule your objection.’’ This statement failed to dispute or deny the truth of the facts stated by defense counsel. Instead, it merely served to express the trial court’s disagreement with counsel’s assertion that the stated events were in fact objectionable.
The recitation of counsel thus stood unre-butted and unqualified by court or prosecutor, and hence in the same posture as it would have if neither had spoken.
I concur.