Bailey v. State

¶1OPINION

¶2This is an appeal from a conviction for the offense of robbery by firearms; the punishment assessed by the jury is imprisonment for 25 years.

¶3A judgment was reversed in an earlier appeal from a conviction for the same offense because the punishment assessed was not authorized by law. See Bailey v. State, 501 S.W.2d 633 (Tex.Cr.App.1973). The appellant was again tried for this offense; a mistrial was declared on April 25, 1974, because the jury could not reach a verdict. In this appeal from the judgment after the third trial the appellant urges several grounds of error, but it is only necessary for us to consider one of them. In that ground the appellant complains of the prosecutor’s jury argument.

¶4Our disposition of this appeal is controlled by the recent case of Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App.1974). There we held that when defense counsel’s argument is not objectionable the State may not in reply go outside the record and argue facts not in evidence. During his argument at the guilt-innocence phase of the trial the prosecutor argued as follows:

“MR. HALL: ....

“Now, Mr. Davis says, ‘Well, where is Earnest Minnifield’? I just want to tell you where he is. I’m happy to tell you where he is. He’s in the Texas Penitentiary.

“MR. DAVIS: I object, Your Honor. That’s improper jury argument.

“THE COURT: I specifically recall your asking that question before this Jury. Overruled.

“MR. HALL: I’m just more than happy to tell you where he is. And, I’m — he said, ‘Well, why wouldn’t Minnifield testify? Why wouldn’t he?’ Well, I’m here to tell you that Minniefield had an opportunity and he refused to testify against Bailey. Minniefield has been convicted of this armed robbery just like Bailey should be.

“MR. DAVIS: I object, Your Honor, to him telling the Jury the disposition of Mr. Minniefield’s case.

“THE COURT: Overruled.”

¶5The State strenuously urges that the prosecutor’s argument was in reply to the following argument made by defense counsel:

“Now, the State has made mention— and, I certainly agree — that what I say is not evidence. What Mr. Hall will say in a few minutes is not evidence; what Mr. Dowd has said is not evidence. The evidence comes from the witness stand, and naturally, if you’re going to have an arm*630ed robbery, no one sells tickets to an armed robbery. But, where is Earnest Minniefield? Why didn’t The State put him on the stand and let him tell who was in the store? Surely, he knows. You have a right to assume that his testimony wouldn’t be what The State of Texas wanted you to hear, or they would have put him there and had him testify as well.”

¶6The defense counsel’s argument was not objectionable. There is no evidence in the record that Minniefield had been convicted and was serving a sentence in prison for this armed robbery. This unsworn testimony of the prosecutor injected new facts into the case and was manifestly harmful to the appellant. See Vargas v. State, 442 S.W.2d 686 (Tex.Cr.App.1969); Barton v. State, 172 Tex.Cr.R. 600, 361 S.W.2d 716 (1962); cf. Thomas v. State, 519 S.W.2d 430 (Tex.Cr.App.1975); Smith v. State, 506 S.W.2d 602 (Tex.Cr.App.1974); Garrison v. State, 528 S.W.2d 837 (Tex.Cr.App., decided Oct. 15, 1975).

¶7The State contends Meadowes v. State, 368 S.W.2d 203 (Tex.Cr.App.1963), supports its position that the argument was invited. Meadowes, however, is distinguishable in that there counsel for the defendant was the first to go outside the record; the prosecutor responded by going outside the record. Defendant’s counsel argued as follows:

“We haven’t heard from Mr. Frost on this thing. We certainly couldn’t use him, couldn’t try. I think the State could have very handily if they had wanted to, but we didn’t get to hear from him.” (emphasis ours.)

¶8Frost accompanied the defendant when he sold dangerous drugs to two undercover agents. The emphasized portion of the argument was an unmistakable reference to Art. 711, V.A.C.C.P. (1925),1 which provided that co-indictees were not competent witnesses for each other. Defendant’s argument necessarily implied that Frost had been charged in connection with the same offense and was therefore outside the record. The prosecutor accepted the invitation by going outside the record to inform the jury that Frost was “doing two years in jail.” In the case at bar the appellant’s argument was permissible; the only objectionable argument was made by the prosecutor.

¶9It would have been appropriate for the prosecutor to argue that Earnest Minnie-field was equally available as a witness for the defense as he was for the prosecutor. Easley v. State, 454 S.W.2d 758 (Tex.Cr.App.1970); Luna v. State, 461 S.W.2d 600 (Tex.Cr.App.1971).

¶10The judgment is reversed and the cause remanded.

¶11Opinion approved by the Court.