Mickle v. State , 149 Tex. Crim. 53 ( 1945 )

In his motion for rehearing, appellant insists that the action of the trial court in limiting, if not denying, his right to object to argument of special prosecutor Taylor at the time it was made, cast upon him an undue hardship under the rule stated in our original opinion. It was for this reason we considered the Bills of Exception Nos. Two, Five, Six, Seven, and Eight, relative thereto.

Argument of State's counsel constitutes reversible error when some mandatory statute is violated, or new and harmful fact injected into the case, or when — in extreme cases — it is manifestly improper, harmful, and prejudicial. Vineyard v. State, 96 Tex.Crim. R., 257 S.W. 548; Heidle v. State,129 Tex. Crim. 201, 86 S.W.2d 641; Phillips v. State,136 Tex. Crim. 430, 121 S.W.2d 1002; O'Mary v. State, 139 Tex. Crim. 294,139 S.W.2d 800.

The argument complained of in each of the bills of exception mentioned fails to come within the rule stated. No useful purpose would be served to set out the argument.

The argument complained of in Bills of Exception Nos. Three and Four, relative to the statement by special counsel for the State that they were "threatening Mrs. Boyer," has again been reviewed and we remain convinced that such argument — in the light of the facts as a whole, — cannot be construed as manifestly improper, harmful, and prejudicial.

Relative to the failure to permit proof by the special prosecutor as to the filing of the damage suit, as complained of in Bill of Exception No. One, in addition to what we said originally, attention is directed to the fact that proof of such fact was not attempted or offered upon cross-examination of the witness Wolcoff, the interested party. Moreover, special prosecutor Taylor, by whom the proof was attempted, had not testified as a witness in the case. We are unable to see wherein Taylor's acts or intentions operated to show Wolcoff's attitude.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.