# Lenzi v. State > Court of Criminal Appeals of Texas · May 20, 1970 · 456 S.W.2d 99 URL: https://www.frixlaw.com/law-library/cases/9771949 ## Case - **Full name:** Michael J. LENZI, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** May 20, 1970 - **Citations:** 456 S.W.2d 99; 1970 Tex. Crim. App. LEXIS 1515 - **Precedential status:** Published - **Opinion:** Dissent by Onion - **Judges:** Douglas, Onion - **Cited by:** 14 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/9771949 ## Opinion text ONION, Judge (dissenting). During the jury argument at the guilt stage of the proceedings the Assistant District Attorney Hill argued: “Here are two guys, two defendants —a Private and a PFC — stationed out at Fort Sam in the army, who will stay State-side enjoying the luxuries of American democracy, decide to go around and rob and hold up hotels while their comrades are overseas in Vietnam dying by the thousands.” Thereupon an objection was interposed and a conference at the bench ensued. Thereafter the “motion” of appellant was overruled and the court instructed the jury to disregard the prosecutor’s use of the plural of the word “hotel.” The prosecutor then apologized to the jury for his “slip of the lip.” At the penalty stage of the proceedings evidence was offered in support of the probation motions that the 18 year old appellant and his co-defendant being jointly tried with him had never previously been convicted of a felony. The State then offered evidence of three officers that the general reputation of the appellant and his co-defendant in the community for being peaceful and law abiding citizens was bad. Then Assistant District Attorney Flour-noy argued: “So, what myself and Mr. Hill will do is make a recommendation; and we trust that you will rely on that, based upon our experience as to what the sentence * * * and I emphasize the sentence —of the number of years would be. And the Court says that you will not discuss and deliberate as to how long they serve. Keep in mind that the number of years sentenced, not necessarily — by a long shot — the number of years served.” (emphasis supplied) The objection to such argument was su-tained and the jury instructed to disregard, the court stating “ * * * and it certainly is highly improper for an officer of this court to attempt by indirection to do what the jury has been instructed they must not do.” The motion for mistrial was overruled. Subsequently the prosecutor Hill argued: “Because all the prosecutor has now to ask a jury is for them to rely on his judgment; and that’s exactly what I am going to ask you to do because there is nothing else. * * * [W]e have to now ask for your trust and your judgment in following our recommendation; because you don’t know what you are *104 doing or how you are going about it. * * * “And Mr. Flournoy has already told you what that recommendation is — 35 years. I stand behind it wholeheartedly; that is my recommendation also. And / didn’t just reach up in the air and grab a figure.” (emphasis supplied) The objection that the prosecutor was asking the jury to base their verdict on his “experience and judgment” when it had to be on the law and evidence was answered as follows: THE COURT: That is his recommendation; the jury will determine the punishment. He can make a recommendation.” Thereafter the prosecutor argued: “I forgot what I was about to say. About the 35 years, it’s not where we get together and roll dice to figure out what we are going to recommend to the jury; we don’t sit down and figure out any process. Like the Court tells you in the charge, you don’t do it by lot or chance; we didn’t do it by lot or chance either. There is a reason, folks; there is a definite reason for the recommendation of 35 years, I can’t tell you what it is, unfortunately.” (emphasis supplied) The jury verdict did not recommend probation as requested and assessed the punishment at 35 years as requested by the prosecutors. “Counsel for the state may not base his argument regarding punishment on matter outside the record.” 56 Tex.Jur.2d, Trial, Sec. 278, pp. 624, 625. See also Kelley v. State, 79 Tex.Cr.R. 362 , 185 S.W. 570 ; Vannoy v. State, 142 Tex.Cr.R. 543 , 155 S.W.2d 368 ; May v. State, 151 Tex.Cr.R. 534 , 209 S.W.2d 606 ; Simone v. State, 157 Tex.Cr.R. 393 , 248 S.W.2d 938 . It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper.” 56 Tex.Jur.2d, Trial, Sec. 271, p. 613. In the instant case the prosecutor told the jurors that they did not know what they were doing; that they had to rely on and trust his judgment for “there is nothing elge”; that his recommendation- was based on definite reason, outside the record, which he unfortunately could not tell them about. 1 Certainly such argument is not to be condoned. Further, it is to be condemned. Because of its harmful and inherently and obviously prejudicial effect it, in my opinion, calls for reversal. When a prosecutor tells a jury to assess punishment, not on the law and facts in the case but on something outside the record, I would draw the line. The argument when considered in the light of the entire record reflects such fundamental unfairness that I am surprised that the majority, in effect, approves the same without a word of caution. In view of this seal of approval we shall see more of this type of improper argument. I respectfully dissent. . This is the same prosecutor who in making a recommendation to the jury as to penalty in Sanders v. State, 453 S.W.2d 162 said: “Now, from all of the facts and circumstances and some things you don’t know, bless your hearts' * * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771949. Public record. Not legal advice.