ONION, Presiding Judge.
The appellant was convicted of murder with malice and his punishment was assessed by the jury at twenty (20) years' confinement in the Texas Department of Corrections.
The evidence adduced at trial, including the appellant's confession in which he admitted killing the deceased, showed that the deceased phoned the appellant on April 21, 1973 and requested that he and the appellant meet to discuss some earlier "trouble" between them. Shortly thereafter, the appellant drove to the deceased's house and picked him up, and they drove several miles outside of Waco to a dirt road which was parallel to the North Bosque River. The appellant stopped his car on the road and he and the deceased shared a marihuana
The appellant alleges some twenty-eight (28) grounds of error. Due to our disposition of the case, we need discuss only four.
In grounds of error number sixteen, seventeen and eighteen, the appellant contends that the State during argument at the punishment stage of the trial commented on his failure to testify, thereby violating Article 38.08, Vernon's Ann.C.C.P.
Immediately following each of the arguments above, the appellant made a motion for mistrial, objected to the argument, and requested an instruction to the jury to disregard.
In addition to the above arguments, our examination of the record reveals another argument made by the prosecutor during the guilt-innocence stage of the trial which clearly referred to the failure of the appellant to testify. The prosecutor stated:
The court overruled the appellant's immediate motion for mistrial, but sustained his objection to the argument and instructed the jury to disregard the same. In Minton v. State, 162 Tex.Cr.R. 358, 285 S.W.2d 760 (1956),
See also, Bell v. State, 130 Tex.Cr.R. 57, 92 S.W.2d 450 (Tex.Cr.App.1936); Sanders v. State, 123 Tex.Cr.R. 409, 59 S.W.2d 1116 (1933). The similarity between that argument and the argument in the present case is apparent. In each, the reference was to the thought processes of the appellant and the inability of the State to prove such. Such arguments are clearly intended to bring to the jury's attention the failure of the appellant to testify in his own behalf.
It is apparent that the prosecutor by his arguments repeatedly attempted to remind the jury of the appellant's failure to testify. By considering the language of the arguments together with the evidence before the jury, we find that each of the arguments previously discussed was manifestly intended to be, and was, of such a character that the jury would naturally or necessarily
In addition to the above error, we feel compelled to discuss another error which occurred during the course of the trial. In ground of error number six, the appellant contends that the trial court erred in overruling his motion for mistrial because the prosecutor proved in the presence of the jury that the woman who accompanied the appellant when he made his confession was a prostitute. The record reveals the following exchange between the prosecutor and the State's witness:
At this point, the appellant immediately asked the court to declare a mistrial on the ground that the State was deliberately attempting to attack his character by attacking the character of his associate. Following denial of the motion for mistrial, the court sustained the appellant's objection and instructed the jury to disregard the testimony. The prosecutor immediately resumed his questions concerning the occupation of the appellant's associate, as shown in the following excerpt from the record:
At this point, the court again denied the appellant's renewed motion for mistrial, but sustained his objection and instructed the jury to disregard the testimony. As this court stated in Gant v. State, 513 S.W.2d 52, 53 (Tex.Cr.App.1974),
Even if the first reference to the alleged occupation of the defendant's associate was, as the State now claims, the accidental result of an unresponsive answer, the renewed questioning cannot be termed as such.
It is apparent that the only reason the prosecutor questioned the witness further on the subject was to emphasize the inadmissible evidence to the jury. As in Gant v. State, supra, we find that the State
In addition to the misconduct of the prosecutor already discussed, our examination of the record reveals numerous other incidents where the trial court sustained objections to his questions, arguments or conduct, and instructed the jury to disregard the same. Among these are forty-five (45) objections to improper questions, sixteen (16) objections to improper arguments, thirteen (13) objections to misconduct and side-bar remarks, and seven (7) deliberate attempts to circumvent the court's earlier rulings. As we recently noted in Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974), it is regrettable that a prosecutor finds it necessary to pursue a course of repeatedly attempting to place matters before the jury which are clearly impermissible. In order to preserve possible error for review, the appellant's counsel was required to object, request an instruction to disregard, and make a motion for mistrial following each of these incidents. Therefore, the misconduct of the prosecutor only served to greatly elongate the trial proceedings.
We are again forced to reassert the critical importance of convicting an accused only upon the evidence presented which shows that he is guilty of the offense charged, Newman v. State, 485 S.W.2d 576 (Tex.Cr.App.1972), and not through attempting to inflame or prejudice the minds of the jurors. E. g., Renn v. State, 495 S.W.2d 922 (Tex.Cr.App.1973); (On Motion for Rehearing); Stein v. State, 492 S.W.2d 548 (Tex.Cr.App.1973); White v. State, 492 S.W.2d 488 (Tex.Cr. App.1973). The conduct of the prosecutor could have served no other purpose than to deprive the appellant of a fair trial by prejudicing the jury against him.
For the grounds of error heretofore discussed, the judgment is reversed and the cause is remanded.
"Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause."
See also Meyer v. State, 416 S.W.2d 415 (Tex. Cr.App.1967). In the present case, the evidence that the appellant alone killed the deceased, and that the appellant alone could relate the facts and circumstances surrounding the killing, is uncontroverted. The prosecutor's argument was in direct reference to the appellant's failure to produce evidence; since the appellant alone through his own testimony could produce the facts surrounding and motive for the killing, the reference to Mr. Dunnam's failure to produce evidence clearly conveys the message to the jury that the appellant did not testify.