stating that proper jury argument must fall within one of four categories: (1) "summary of the evidence;" (2) "reasonable deduction from the 20 evidence;" (3) "answer to argument of opposing counsel;" and (4) "plea for law enforcement."
How later courts described this case
- stating that proper jury argument must fall within one of four categories: (1) "summary of the evidence;" (2) "reasonable deduction from the 20 evidence;" (3) "answer to argument of opposing counsel;" and (4) "plea for law enforcement."
- noting that “[i]t is the duty 4 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”
- using her position of...authority to convey a personal opinion to sway the jury
- “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. . . . The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney.”
Written by the judges who cited it.
The opinion
DISSENTING OPINION TO THE ORDER OVERRULING THE STATE’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING
DOUGLAS, Judge.
The motion for leave to file the motion for rehearing should be granted and the reversal should be set aside for the reasons set forth in the dissenting opinion on original submission.
The majority opinion is in conflict with Alexander v. State, 482 S.W.2d 862 , where this Court held where a defendant received more than ten years, the question of probation should not be considered. That decision should, if it can, be distinguished or it should be overruled.
In the present case the jury was charged under Article 42.12, Vernon’s Ann.C.C.P., on probation. The court instructed the jury that probation could not be considered unless punishment was assessed at not more than ten years. Two forms of verdict were submitted to the jury. The first form was for the assessment of punishment without probation. The foreman of the jury signed this form after the jury had assessed the punishment at twenty-five years. After this the question of probation was not before the jury.
Further, for the purpose of informing trial judges and the attorneys who try to rely upon the decisions of this Court, the majority should either hold that a general objection to argument is sufficient for review or that such an objection is not sufficient. In the present case counsel stated to part of the argument relied upon for reversal, “Objection, Your Honor.” In the recent case of Bain v. State, Tex.Cr.App., 492 S.W.2d 475 (1973), this Court, in a unanimous opinion, held that an “Objection, Your Honor” “ . . .is too general and presents nothing for review.”
In Verret v. State, Tex.Cr.App., 470 S.W.2d 883 , the statement “Your Honor, we are going to object” was held to be too general to preserve error.
For the above reasons, leave to file the State’s motion for rehearing should be granted and the conviction should be affirmed.
The present case is in conflict with the previous holdings of this Court. See 56 Tex.Jur.2d, Trial, Section 315.
The previous cases should be either followed, distinguished (if that is possible), or overruled.