Johnson v. State , 1984 Tex. Crim. App. LEXIS 571 ( 1984 )

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of aggravated assault and punishment was assessed by the jury at ten years imprisonment in the Texas Department of Corrections and a $5,000 fine. The Court of Appeals for the Fourth Supreme Judicial District of Texas in San Antonio reversed the conviction and remanded the case to the trial court. 649 S.W.2d 111. We granted the State’s petition for discretionary review in order to determine whether the court of appeals erred in finding that the trial court had erroneously admitted evidence of an extraneous offense and in finding four instances of improper jury argument. We agree with the court of appeals’ finding of reversible error and affirm.

The court of appeals found merit in the appellant’s contention that the prosecutor was erroneously allowed to imply that absent witnesses were afraid to testify. The complained of argument is as follows:

“[PROSECUTOR]: ... [DJon’t you know that there are other witnesses. Don’t you know that the people really saw what happened out there ....

“... [W]hy don’t people come forth, ladies and gentlemen? Why won’t they get involved? Is it because they don’t car e?

“[DEFENSE COUNSEL]: Your Hon- or, that’s highly outside the record.

“[PROSECUTOR]: Or is it because they are afraid?

“THE COURT: Overruled.

“[DEFENSE COUNSEL]: Note my exception.

“[PROSECUTOR]: I submit to you that it’s because they are afraid. They are afraid to become involved. They are afraid to put the finger on the man that nearly killed another man. If anybody has a right to be afraid of testifying it should be the man who almost lost his life. It should be the man who laid on his back for thirty days and pondered the situation out there. The man who says that when I come and testify in Court I’m fair game.”

It is well settled that the prosecutor may not imply that witnesses have been frightened from the courtroom by the defendant. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975). In Thomas v. State, supra, this court held that:

“To argue such facts, unsupported by the evidence, is to inject new and harmful facts alluding to conduct of the appellant for which he is not on trial. By continuing this argument in a more distinct fashion after the objection was overruled, the prosecutor only compounded the error and harm to the appellant.”

We find that the prosecutor’s argument in the instant case similarly interjected new and harmful facts, unsupported by the evidence which were prejudicial to the appellant. The harm was then compounded by the additional comments made by the prosecutor as the objection was being ruled on by the court.¹ We find the prosecutor’s argument was improper and constitutes reversible error.

Because we agree with the result reached by the court of appeals, we do not deem it necessary at this time to address the remaining grounds of error found to be reversible by that court.

The judgment of the court of appeals is affirmed.

1 . We note that the harm done in this case is reflected rather obviously in the assessment of the maximum punishment for a third degree felony.