# Lafoon v. State

> Court of Criminal Appeals of Texas · November 17, 1976 · 543 S.W.2d 617

URL: https://www.frixlaw.com/law-library/cases/9771527

## Case

- **Full name:** Leroy LAFOON, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 17, 1976
- **Citations:** 543 S.W.2d 617; 1976 Tex. Crim. App. LEXIS 1142
- **Precedential status:** Published
- **Opinion:** Dissent by Roberts
- **Judges:** Douglas, Roberts
- **Cited by:** 46 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/9771527

## Opinion text

ROBERTS, Judge
(dissenting).
This case should be reversed because of the improper argument of the prosecutor, which is brought forward as appellant’s eighth ground of error. The prosecutor argued:
“There’s a lot of circumstances I would love to have you people know. I’ll guarantee you one thing; you return a guilty verdict in this case and then you go out and make a further investigation, and you’ll be proud of yourself.”
*623 Appellant’s objection was sustained, and the jury was instructed to disregard the argument. Appellant’s timely motion for mistrial was overruled.
The majority indicates that the argument was merely an expression of the prosecutor’s opinion that the appellant was guilty. This overbroad analysis entirely misses the obvious point of the prosecutor’s argument: to tell the jury in clear and explicit language that there were known facts not introduced in evidence which would bolster the prosecutor’s contention that the appellant was guilty.
The argument in this case is indistinguishable from the argument in Bowers v. State, 171 Tex.Cr.R. 345 , 350 S.W.2d 27 (1961). There this Court reversed where the prosecutor argued:
“I am asking you to put him in the penitentiary . . . That’s what I’m asking you and I’ll stand with you on the verdict, and I want you to come to me and I’ll tell you after it’s all over that I’ll stand with you right down the line and you’ll have a different light on this matter.”
As in the present case, the objection in Bowers was sustained, and the judge instructed the jury to disregard the argument, but a motion for mistrial was denied. This Court held that the argument “was tantamount to telling the jury that if they would vote to convict appellant and then come to see the prosecutor he would tell them something which had not been introduced in evidence and further justify their finding of guilt.” Bowers, supra, 350 S.W.2d at 28 .
The argument in this case is even more explicit than that in Bowers . Moreover, the rule applied in Bowers is one of longstanding and repeated application. See Smith v. State, 94 Tex.Cr.R. 427 , 250 S.W. 1025 (1923), and Harrison v. State, 102 Tex.Cr.R. 385 , 278 S.W. 430 (1925), both relied upon in Bowers , as well as Haggard v. State, 99 Tex.Cr.R. 354 , 269 S.W. 438 (1925); Brister v. State, 97 Tex.Cr.R. 395 , 262 S.W. 82 (1924); Puckett v. State, 168 Tex.Cr.R. 615 , 330 S.W.2d 465 , 81 A.L.R.2d 1237 (1959); and Stanchel v. State, 89 Tex.Cr.R. 358 , 231 S.W. 120 (1921).
Finally, it should be observed that the maximum possible punishment was assessed. This makes the following language from Stanchel especially pertinent:
“It was perfectly legitimate for counsel to criticize the failure to produce available evidence, and deduce a conclusion that, if offered, it would not be favorable. But the district attorney in his zeal went further than this court can sanction. We understand that in the heat of debate attorneys for both the state and defendant are likely to violate the rules of argument; but here counsel passed from the domain of argument and conclusion and entered the realm in which a witness only is entitled to move. It was a damaging statement against appellant, and we cannot hold the same to have been harmless, in view of the penalty inflicted.” 89 Tex.Cr.R., at 361 , 231 S.W., at 122 .
The judgment should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771527. Public record. Not legal advice.