The offense is possession of marihuana; the punishment, twelve years.
Appellant's first ground of error complains of the prosecutor's jury argument.
During defense argument, appellant's counsel said:
Later, we find the following by the prosecutor:
In Langley v. State, 129 Tex.Cr.R. 254, 86 S.W.2d 755, this court said that counsel in argument may state "the impression made upon him from an observation [of a witness] which observation the jury had equal opportunity to make."
It is our opinion that the prosecutor's argument that the appellant "is coming down from an addictive drug" was not invited. The argument by appellant's counsel was clearly within the rule announced in Langley and quoted above. The rule on invited error is that if the defendant's counsel goes outside of the record in his argument, the prosecutor is then also permitted to go outside the record to respond. Here, defense counsel's argument being within the scope permitted by Langley, it was not objectionable, and certainly the State is not permitted to go outside the record to respond to argument which was not itself objectionable.
The State contends the prosecutor's argument was a legitimate deduction from the evidence, and within the rule of Langley. The record contains no evidence that the cause of appellant's demeanor was withdrawal from drugs,
The Langley opinion rests upon the rationale stated therein upon motion for rehearing:
The comment of the prosecutor in Langley was:
Such statements may be said to be in the nature of observations requiring no expertise, and therefore incapable of adding to or subtracting from the knowledge of the jurors who had likewise viewed the witnesses. Such statement is also true of the defense counsel's argument that appellant was shaking on the stand and appeared afraid. Such, however, is not true of the statement that appellant was "coming down from an addictive drug." There was no evidence that appellant had the appearance of one "coming down from an addictive drug." We are unable to say that "coming down from an addictive drug" is of such common occurrence that its recognition requires no expertise. Cf. Smithhart v. State, Tex.Cr.App., 503 S.W.2d 283 (1973). Consequently, Langley does not apply. The prosecutor's comments amounted to the injection of new evidence, constituting reversible error.
We note that a machine gun kit, a pistol, and evidence of stolen credit cards were improperly admitted into evidence, and although we do not reverse on the grounds raising those issues, we trust such error will not be repeated in the event appellant is retried for this offense. See Schuenemann v. State, Tex.Cr.App., 501 S.W.2d 319; Cunningham v. State, Tex.Cr.App., 500 S.W.2d 820; Hernandez v. State, Tex.Cr.App., 484 S.W.2d 754.
For the reversible error cited, the judgment is reversed and the cause remanded.