Lookabaugh v. State, 33755
| Decision Date | 22 November 1961 |
| Docket Number | No. 33755,33755 |
| Citation | 171 Tex.Crim. 613,352 S.W.2d 279 |
| Parties | Leonard Lytton LOOKABAUGH, Jr., Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
[171 TEXCRIM 614] William O. Braecklein, Dallas, for appellant.
Henry Wade, Dist. Atty., Paul French, O. H. Harris, John Rogers and Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.
In view of our disposition of this case, a recitation of the facts will not be deemed necessary other than to observe that there is no evidence in the record that appellant had ever before been convicted of any offense.
In his argument to the jury, appellant's counsel urged them to acquit appellant because if they convicted him it would mean that he had to go to jail and that such fact would ruin his life.
In his closing argument, the prosecutor said, 'It's a reasonable deduction, since he went into this, that this isn't the first time this man has been in jail.' After the motion for mistrial was overruled, the prosecutor continued,
As stated, we find nothing in the record to authorize the 'reasonable deduction' of the prosecutor that appellant had prior to the commission of this offense been confined in jail on other charges. The testimony reflected no prior confinement in jail. The purpose of argument is to assist the jury in properly analyzing the evidence and arriving at a verdict based on the evidence alone. By this unsworn statement, the prosecutor got before the jury evidence which was outside the record and extremely harmful to accused. We have consistently held that such conduct constitutes reversible error. See Kirk v. State, 159 Tex.Cr.R. 124, 261 S.W.2d 721; Gonzales v. State, 159 Tex.Cr.R. 108, 261 S.W.2d 577, and the cases there cited.
For the error pointed out, the judgment is reversed and the cause is remanded.
[171 TEXCRIM 615] The sole ground for reversal presented is predicated upon the court's refusal to declare a mistrial during the closing argument of counsel for the state because said counsel argued:
The trial judge sustained appellant's objection and instructed the jury to disregard such remarks, out overruled appellant's motion for mistrial.
Appellant's counsel, who the evidence shows was the roommate of the appellant in their school days, had argued: * * *' This...
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