concluding prosecutor’s statement that “there is no evidence to that effect” and “there is no evidence of any phantom [killer]” was not improper reference to defendant’s failure to testify but was invited by counsel’s argument that someone else had committed the murder
How later courts described this case
- concluding prosecutor’s statement that “there is no evidence to that effect” and “there is no evidence of any phantom [killer]” was not improper reference to defendant’s failure to testify but was invited by counsel’s argument that someone else had committed the murder
- concluding prosecutor=s statement that Athere is no evidence to that effect@ and Athere is no evidence of any phantom [killer]@ was not improper reference to defendant=s failure to testify but was invited by counsel=s argument that someone else had committed the murder
- determining that following closing argument by State did not harm defendant: “‘[T]hat is a moral vacuum. He has no conscience, no heart, no recognition of right or wrong. You are perched on the rim of hell, looking deep into it”
- explaining that “the prosecutor may argue his opinions concerning issues in the case so long as the opinions are based on the evidence in the record and not as constituting unsworn testimony”
Written by the judges who cited it.
The opinion
OPINION ON APPELLANT’S MOTION FOR REHEARING
On original submission we overruled Appellant’s second ground of error, concerning the admission of an extraneous offense, for two reasons. On motion for rehearing appellant contends that we erred in doing so. He complains, as did Judge Clinton in the dissent on original submission, that cross-examination of a witness cannot alone be justification for the admission of an extraneous offense and thus our opinion is wrong when it states that the extraneous offense was “relevant as rehabilitation evidence for the testimony of Kevin Long”. Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972). We agree, and that portion of the original opinion has been excised. We do not agree however that the extraneous offense was not admissible to show motive, as also contended by appellant. Thus appellant's second ground of error was properly overruled on original submission.
We have examined the remainder of appellant’s contentions in his motion for rehearing and find them to be without merit.
Appellant’s motion for rehearing is overruled.
CLINTON and TEAGUE, JJ„ dissent.