Instructed the Jury to Disregard Prosecutors Comment Cases In Texas
Permissible jury argument is limited to four areas:
(1) summation of the evidence;
(2) reasonable deductions from the evidence;
(3) responses to opposing counsel's argument;
(4) pleas for law enforcement. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 832, 116 S. Ct. 106, 133 L. Ed. 2d 59 (1996); Coble v. State, 871 S.W.2d 192, 204 (Tex.Crim.App.1993); Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992); and, Todd v. State, 598 S.W.2d 286, 296-297 (Tex.Crim.App.1980).
Generally, when an argument falls outside of these areas, error occurs.
However, an instruction to disregard the argument generally cures the error. McGee v. State, 774 S.W.2d 229, 238 (Tex.Crim.App.1989); and, Anderson v. State, 633 S.W.2d 851, 855 (Tex.Crim.App.1982).
In Dinkins, the court of criminal appeals found a statement by the prosecutor to be harmless error, to wit: "Now, Defense Counsel wants to mislead you a little bit by saying if you find -." Dinkins, 894 S.W.2d at 357. the trial court sustained appellant's objection, instructed the jury to disregard, and overruled appellant's motion for mistrial.
The court of criminal appeals stated, in pertinent part:
We disagree with the State that the prosecutor's comment was permissible as rebuttal to defense counsel's prior argument concerning the voluntariness of appellant's confession.
Although the prosecutor's statements may have been intended as a rebuttal, they also cast aspersion on defense counsel's veracity with the jury.
Compare, Lopez v. State, 500 S.W.2d 844, 846 (Tex. Crim. App. 1973)(reversible error occurred at comment that defense counsel and defendants were liars when pled not guilty).
But see, Gorman v. State, 480 S.W.2d 188, 190 (Tex.Crim.App.1972) (comment "don't let [defense counsel] smoke-screen you" was permissible rebuttal).
Nonetheless, the prosecutor's comment was not as egregious as those in Gomez v. State, (Tex. App 1998) (reversible error resulted from comment that defense counsel was paid to "manufacture evidence" and "get this defendant off the hook"); and, Bray v. State, 478 S.W.2d 89, 89-90 (Tex.Crim.App.1972) (reversible error resulted from comment that prosecutor was grateful for not having to represent someone like defendant). Moreover, the trial judge sustained appellant's objection and instructed the jury to disregard the statement. Finally the State made no further comments impugning defense counsel's veracity.
We therefore hold the error was harmless.Dinkins, 894 S.W.2d at 357.
An instruction to the jury was held to cure the prosecutor's statement that "defense sounds kind of like a courthouse defense more than the truth to me, but I am not going to attack Mr. Mitchell's (defense counsel) character in this cause . . . ." Pogue v. State, 474 S.W.2d 492, 496 (Tex.Crim.App. 1971).