¶1dissenting.
¶2I respectfully dissent.
¶3*228The State does not dispute in its brief that the prosecutor’s argument, “[S]ome-body knows where it is, from the evidence you have heard, Johnny Wayne Allen knows what happened to it,” taken alone, constitutes a prohibited allusion to the accused’s failure to testify. Article 38.08 Tex. Code Crim. Pro. (Vernon 1979); Johnson v. State, 611 S.W.2d 649 (Tex. Cr. App. 1981).
¶4As in Johnson, the State seeks to excuse its impropriety relying on the “invited argument rule.” 611 S.W.2d at 650. The State argues that, since the defense questioned the absence of fingerprints from the State’s proof, it was entitled to respond— that the stolen Sony receiver had not been recovered — as an explanation of the absence of proof of fingerprints. I fully agree that the State’s explanation was invited but such explanation was fully made and completed before the prosecutor “tacked-on” the quoted allusion to the accused’s failure to testify. I would hold that the prosecutor here went beyond the “invitation,” or strayed beyond the scope thereof, as was found in Johnsonand in Kincaid v. State, 534 S.W.2d 340 (Tex. Cr. App. 1976).
¶5The State also seeks to excuse its impropriety by arguing that the defense failed to preserve the error for review. The State points out that, although the defense duly objected to the prosecutor’s argument and moved for a mistrial, there was no motion by the defense for the court to instruct the jury to disregard the prosecutor’s allusion to the accused’s failure to testify. This identical argument was rejected in Overstreet v. State, 470 S.W.2d 653 (Tex. Cr. App. 1971) where the court held that the prohibition against a comment on the defendant’s failure to testify is mandatory and that the adverse effect of any reference to the accused’s failure to testify could not be cured by an instruction; consequently, a motion for instruction, being ineffective even if given, was not necessary to preserve error. See Parr v. State, 606 S.W.2d 928 (Tex. Cr. App. 1980) (argument so inflammatory that its prejudicial effect could not be cured by instruction). I would hold that the error, consisting of a violation of Article 38.08, prohibiting an allusion to or comment upon the accused’s failure to testify, is not waived by the accused’s failure to move the court to instruct the jury to disregard.
¶6Inasmuch as the State concedes the violation of Article 38.08 and since neither of its excuses therefor are tenable in the face of these precedents, I would reverse and remand this case for a new trial.