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
*182 MORRISON, Judge
(dissenting).
I agree that the assertion that the prosecutor was standing behind the appellant and looking down at him is not supported by the record before us.
I would further point out that in our opinion in Salazar v. State, supra, on rehearing, we acknowledged that the exhibition of the scars had been made. This was based upon a statement in the record by the court that “the wounds had been shown to the jury.”
I cannot agree with my Brother Onion that he has sufficiently distinguished Barrientez v. State, supra. I would hold that it is authoritative in the case at bar and, for that reason, I dissent to the reversal of this conviction.