TOM G. DAVIS, Judge.
Appeal is taken from a conviction for aggravated robbery. Following his plea of guilty, the jury assessed appellant's punishment at 5 years.
In his first ground of error, appellant contends that the court erred in failing to grant a mistrial due to improper jury argument. He maintains that the argument was improper as a comment upon appellant's failure to testify. Appellant did not testify, but offered testimony of his parents in support of his application for probation.
The complained of argument and counsel's objection thereto are as follows:
A prosecutor's comment on a defendant's failure to testify offends both our State and Federal Constitutions. Nickens v. State (Tex.Cr.App.), 604 S.W.2d 101; Pollard v. State (Tex.Cr.App.), 552 S.W.2d 475. The language of such a comment must be either manifestly intended, or of such a character that the jury would naturally and necessarily take it to be a comment on the defendant's failure to testify. Griffin v. State (Tex.Cr.App.), 554 S.W.2d 688; Hicks v. State (Tex.Cr.App.), 525 S.W.2d 177. If the remark complained of called the jury's attention to the absence of evidence that only the testimony from the appellant could supply, the conviction must be reversed. Myers v. State (Tex.Cr.App.), 573 S.W.2d 19.
The State does not dispute the contention that the argument was a comment upon appellant's failure to testify. Rather, the State urges that the argument "constituted a cogent response to Appellant's argument with respect to punishment."
The invited argument rule permits prosecutorial argument outside the record in response to defense argument which goes outside the record. Franks v. State (Tex. Cr.App.), 574 S.W.2d 124. However, a prosecutor may not stray beyond the scope of the invitation. Kincaid v. State (Tex.Cr. App.), 534 S.W.2d 340.
The record reflects that appellant's counsel spent the majority of his argument in requesting the jury to recommend that the punishment to be assessed be probated. Counsel concluded his argument in the following manner:
We find that there is no support in the record for the State's contention that the complained of argument was invited or in response to statements made by appellant's counsel.
We further note that appellant made a motion for mistrial and did not request an instruction from the court to have the jury disregard the comment of the prosecutor. In Parr v. State (Tex.Cr.App.), 606 S.W.2d 928, this Court stated that unless an argument is so inflammatory that its prejudicial effect could not have been alleviated by an instruction to disregard, the failure to request such an instruction waives the error. In Overstreet v. State (Tex.Cr.App.), 470 S.W.2d 653, it was stated that the prohibition against a comment on the defendant's failure to testify is mandatory and the adverse effect of any reference to the accused's failure to testify is not generally cured by an instruction to the jury. See Bird v. State (Tex.Cr.App.), 527 S.W.2d 891; Easterling v. State (Tex.Cr.App.), 325 S.W.2d 138; Williams v. State (Tex.Cr. App.), 243 S.W.2d 837; Weatherred v. State (Tex.Cr.App.), 89 S.W.2d 212.
The complained of argument in the instant case was a direct and flagrant reference to what the jury had not heard the appellant say. In point of fact, appellant had said nothing before the jury because he had chosen not to testify at trial. We conclude that the argument was so inflammatory that its prejudicial effect could not
The judgment is reversed and the cause remanded.