# Irving v. State

> Court of Criminal Appeals of Texas · May 17, 1978 · 573 S.W.2d 5

URL: https://www.frixlaw.com/law-library/cases/9680777

## Case

- **Full name:** Arthur Daniel IRVING, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** May 17, 1978
- **Citations:** 573 S.W.2d 5; 1978 Tex. Crim. App. LEXIS 1151
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Douglas, Roberts, Odom, Davis
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9680777

## How later opinions describe it (automated extraction)

- finding improper the following argument: “The proper punishment in this case, I ask you to rely upon my expertise in these matters, rely upon the Texas Department of Corrections, on what the proper thing to do with this man is . . . forty-five years[’] confinement.”

## Opinion text

DOUGLAS, Judge,
dissenting opinion on State's motion for leave to file motion for rehearing.
A majority refuses to grant leave to file the State’s motion for rehearing. On original submission, the cause was reversed because the prosecutor argued at the punishment stage of the trial the proper punishment in this case, “I ask you to rely upon my expertise in these matters. Counsel objected that the argument was *7 relying upon his expertise. The prosecutor then argued that the only proper punishment in the case was forty-five years. The jury paid little attention to the prosecutor and assessed the punishment at twenty years. The Court pointed out that if he got ten years it was possible he could have had probation.
One of the most important factors in determining whether the argument creates reversible error is in the effect it has on the jury. Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App. 1972); Brown v. State, 475 S.W.2d 761 (Tex.Cr.App. 1972); and Myer v. State, 416 S.W.2d 415 (Tex.Cr.App. 1967).
It is inconceivable that the jury would deny a defendant probation or assess ten years extra in a case because the prosecutor said he had expertise or had experience in the trial of criminal cases.
Leave to file the motion for rehearing should be granted and the judgment should be affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9680777. Public record. Not legal advice.