Can Prosecutor Argue His Personal Opinion In Texas ?
It is improper for a prosecutor to inject personal opinion in statements to the jury if he implies a special expertise coupled with an implied appeal to the jury to rely on that expertise in deciding the contested issues. See Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985).
However, not every statement that sounds like personal opinion is reversible error.
It is the combination of an argument that sounds like personal opinion with statements suggesting special expertise that is prohibited because jurors may infer that the prosecutor's opinion is based on outside information not available to the jury. See Hernandez v. State, 931 S.W.2d 49, 51 (Tex. App.-Fort Worth 1996, no pet.); Bui v. State, 964 S.W.2d 335, 345 (Tex. App.-Texarkana 1998, pet. ref'd).
Thus, a prosecutor may argue his opinions concerning issues in the case so long as the opinion is based on evidence in the record and does not constitute unsworn testimony. See Bui v. State, 964 S.W.2d at 345.
In Frias v. State, 775 S.W.2d 871, 875 (Tex. App.-Ft. Worth 1989, no pet.), the Fort Worth Court of Appeals overruled a point of error based on an argument identical to that in the instant case.
There, the prosecutor argued, "I don't think probation is appropriate..." the Frias court determined that the argument, in context, was an analysis of the evidence and was a reasonable deduction therefrom. See id. Similarly, in Hernandez v. State, 931 S.W.2d at 51, the same court held the following punishment argument to be proper:
The State is going to tell you right here and now, in no uncertain terms, that it is the State's position that this case-both cases are absolutely in no way indicative of a probated sentence.
The murder of victim and attempted murder of victim are not probation cases.