Berryhill v. State, 46660
| Decision Date | 14 November 1973 |
| Docket Number | No. 46660,46660 |
| Citation | 501 S.W.2d 86 |
| Parties | Gill Blas BERRYHILL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Malcolm Dade and Ralph Gismant, Dallas, for appellant.
Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of attempted robbery. Punishment was assessed by a jury at two years.
Appellant contends that the prosecutor committed reversible error when he implied in his closing argument that he had additional evidence that was not introduced but which would show the guilt of appellant.
The record shows the following argument, objection and ruling:
On cross-examination of appellant, the prosecutor propounded the following questions:
'Q. Fine. Isn't it a fact, Berryhill, that you met with Carmichael at his girlfriend's house at about 7:00 or 8:00 that evening?
A. No, it's not.
Q. Isn't it a fact that you and Carmichael planned this sometime between 7:00 and 8:00 in the evening at Carmichael's girlfriend's place?
A. No, it's not.
Q. Isn't it a fact that you left Carmichael's girlfriend's place and went to Carmichael's place where he picked up that pistol?
A. That's a lie.
Q. Isn't it a fact that you then went to Jimmy Seale's apartment?
A. That's a lie.'
At no time was any evidence presented to show the meetings or plans referred to in the prosecutor's line of questioning. The complained of argument clearly referred to this cross-examination of appellant and implied that evidence existed which would support the matters set out in the prosecutor's hypothetical questions.
It is our conclusion that the state's reference to matters upon which cross-examination of appellant was based, and its statement that it could not bring those matters to the jury, followed by the invitation to the jury to speculate on what those matters were, constituted an improper representation that there was other evidence of the guilt of appellant...
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...engages in prosecutorial misconduct where it "inject[s] matters not in the record," which "is clearly improper." Berryhill v. State , 501 S.W.2d 86, 87 (Tex. Crim. App. 1973). The Court of Criminal Appeals noted that "argument inviting speculation is even more dangerous because it leaves to......
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McGee v. State
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