Jordan v. State, s. 67346
| Decision Date | 16 March 1983 |
| Docket Number | Nos. 67346,67347,s. 67346 |
| Citation | 646 S.W.2d 946 |
| Parties | Darrell Wayne JORDAN, Appellant, v. The STATE of Texas, Appellee. Diane JORDAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Darrell Wayne Jordan and Diane Jordan, appellants, were separately indicted for the felony offense of possession of marihuana. They were jointly tried before a jury. The jury found each guilty and assessed punishment at three years' confinement in the penitentiary but recommended in the instance of Diane that her punishment be probated.
We have found reversible error in the jury argument of one of the prosecuting attorneys. Appellants do not challenge the sufficiency of the evidence. We will, therefore, not discuss the facts of the case. The other grounds of error that appellants raise in the appeals are without merit.
At the punishment stage of the trial, shortly prior to completing his jury argument, one of the prosecuting attorneys made the following statement to the jury:
I can't show you his arms, he's [referring to the appellant Darrell Wayne Jordan] got long sleeves on, and I don't know if you can see hers [referring to appellant Diane Jordan] or not--
One of the trial counsel for the appellants attempted at that time to interpose an objection, but the prosecuting attorney continued his argument:
--but look at the needle tracks on them.
Trial counsel for appellants then succeeded in making an objection, "for the reasons that it allows the jury to speculate about matters not in evidence." The objection was overruled by the trial judge.
Our search of the record of appeal to find something on which the prosecuting attorney based his argument, and our failure to find anything which would have supported his argument, causes us to agree with the statement that the appellants have made in their brief: "There was no evidence in the record about needle tracks on anyone's arms." Furthermore, our reading of the record does not indicate that anyone with normal eye sight could have seen any needle marks on the appellant Diane Jordan's arms, if any were in fact on her arms. The prosecutor himself admitted in his argument, as to the appellant Darrell Wayne Jordan, that no one could have seen any needle marks on his arms, if any were in fact on his arms. Also, this is a possession of marihuana case and not a possession of a controlled substance such as heroin case.
Unquestionably, by the unsworn and not admitted into evidence statements of the prosecuting attorney, the jury was left to speculate on whether or not the appellants had needle marks on their arms, which if resolved in the affirmative would lead the jury to further speculate whether or not the appellants had been injecting themselves with a substance such as heroin versus something such as insulin.
In Berryhill v. State, 501 S.W.2d 86 (Tex.Cr.App.1973), this Court in a unanimous opinion made the following statement:
Argument injecting matters not in the record is clearly improper; but argument inviting speculation is even more dangerous because it leaves to the imagination of each juror whether extraneous 'facts' may be needed to support a conviction [or assess punishment]. Logical deductions from evidence do not permit within the rule logical deductions from nonevidence.
We find that the prosecuting attorney's jury argument in this instance falls outside the boundaries of proper jury summation which boundaries are set forth in Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973); also see Campbell v. State, 610 S.W.2d 754 (Tex.Cr.App.1981); Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980); Dunbar v. State, 551 S.W.2d 382 (Tex.Cr.App.1977). A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he may not use jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. A prosecuting attorney, though free to strike hard blows, is not at liberty to strike foul ones, either directly or indirectly. Jackson v. State, 529 S.W.2d 544, 546 (Tex.Cr.App.1975).
Although it is true that a prosecuting attorney, like his counterpart, is entitled to call to the attention of the jurors what they had an opportunity equal to his to observe, see Langley v. State, 129 Tex.Cr.R. 254, 86 S.W.2d 755 (Tex.Cr.App.1935); Threadgill v. State, 124 Tex.Cr.R. 287, 61 S.W.2d 821 (Tex.Cr.App.1933); Thom v. State, 167 Tex.Cr.R. 258, 319 S.W.2d 313 (Tex.Cr.App.1958), nevertheless, such must be reflected in the record or be of...
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