Lott v. State , 1973 Tex. Crim. App. LEXIS 1985 ( 1973 )

OPINION

ODOM, Judge.

This appeal is from a conviction for possession of marihuana. Punishment was assessed by the jury at ten years.

We reverse this conviction because of improper jury argument. In the closing argument at the punishment stage of the trial, the prosecutor told the jury that:

“ * * * there are different units in the Texas Department of Corrections, and, of course, we have the one unit for the young offenders, the first offenders, * * *»

and that appellant would be sent to “the Ferguson Unit, with young offenders * ‡ _ ⅜»

The state contends that this was in answer to appellant’s argument wherein he stated:

“ * * * Don’t send this boy to the penitentiary where he may be taught to be a hardened or perhaps a professional criminal. Give him one more chance. * * *

“You have that choice (probation) on the one hand or on the other hand you can enter him by your verdict into the toughest and I use that word literally college ever conjured up in the mind of man, and the education administered there by the toughest men of the toughest society, that most inalienable or most alienable group of our society, and he is subjected to their teachings, and he will be turned loose on the community with what he has learned there.”

True, the state was authorized, indeed even obliged, to answer such argument. But how did the prosecutor answer the same? He did so by making the above statements which were facts that were not in the record. Objections to the remarks were overruled.

In Verret v. State, Tex.Cr.App., 470 S.W.2d 883, this court held a similar remark not to be reversible error, stating: “While this argument should not have been made, no objection was urged * * (Emphasis supplied.)

In the recent case, Tex.Cr.App., Stearn v. State, 487 S.W.2d 734 (No. 45,400 Dec. 13, 1972) the prosecutor’s argument went outside the record and, as in the instant case, the objection thereto was overruled. The conviction was reversed because of the improper argument. Therein we observed :

“There seems to be a growing tendency by the prosecutors to go outside the record in jury argument and then, on appeal, submit that such was not error; or, at most, harmless error.”

See also, Thurman v. State, Tex.Cr.App., 382 S.W.2d 492; Ray v. State, 382 S.W.2d 270; Hernandez v. State, Tex.Cr.App., 366 S.W.2d 575; Pena v. State, 129 S.W.2d 667.

Neither is the argument in the case at bar a legitimate answer to that made by appellant’s counsel. Compare Sennette v. State, Tex.Cr.App., 481 S.W.2d 827, and cases cited therein. Nowhere does the record reflect that defense counsel made a reference to a particular unit of the Department of Corrections.

The complained of argument was improper and we cannot say the error was harmless error.

In view of our disposition of the case on this ground of error, other grounds will not be discussed.

The judgment is reversed and the cause remanded.