dissenting.
The district attorney’s argument that his decisions, police decisions, and the grand jury’s decisions are cumulative evidence of guilt was a misstatement of the law, improper and prejudicial, preserved and reversible error.
Defense counsel objected. When the trial court said, “I’ll give you an exception,” what it ruled, in effect, was: that’s all you’re getting. When a trial judge says, “you may have your exception,” he “permit[s] [the argument] to go to the jury unhampered by any caution not to consider it.” Thus, the trial court “. . .in effect place[s] his sanction upon such argument.” Traders and General Ins. Co. v. White, 320 S.W.2d 702, 705 (Tex.Civ.App.—Amarillo 1959, writ ref’d n. r. e.).
In Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973), we reversed because of the following improper argument:
“I am certainly not going to prosecute a man that I don’t feel in my own heart is guilty.”
We stated that “[i]f the court had sustained the objection and instructed the jury not to consider this argument, the error might not have resulted in reversal. (Citations).” Id., at 644.
In Harris v. State, 475 S.W.2d 922 (Tex.Cr.App.1972), the following argument was objected to:
“Now, again, he said that the State wields a lot of power, and he went through the process of the grand jury indictment; at ¡east nine people in the past have felt that there was evidence warranting a conviction, because they returned a true bill.” (Emphasis included).
Since the objection was sustained and an instruction to disregard granted, this Court held that reversible error was not present. However, we stated that “[t]he italicized portion of the prosecutor’s argument was a misstatement of the law; it should not have been made, and under some circumstances might well have been reversible error.” Id., at 923.
In Hall v. State, 492 S.W.2d 512 (Tex.Cr.App.1973), the following argument was objected to:
*203“ * * * I am trying to detail for you what law enforcement is, why it’s, your part, so important. The police do their work of apprehending these robbers; the grand jurors hear the cases, and they indict the cases. As you have heard the indictment read in this case. The grand jurors of the State of Texas, saying this man did wrong and you saw the details in the indictment.”
We stated that the argument was improper. But since no instruction to disregard was sought or a ruling obtained on the initial objection, “[w]e [were] not willing to label it reversible error however.” Id., at 514.
In Jones v. State, 520 S.W.2d 755 (Tex.Cr.App. 1975, Opinion on Appellant’s Motion to Reinstate Appeal), the following argument was complained of:
“. . .1 tell you each and every one of you you are the citizens who pay me to do a job. I will tell you this, there is not one of you, not one of you on that Jury that can pay me enough money or can pay the police department enough money to try to convict an innocent man and that is what we are here about, and that is what he is insinuating. You don’t do that, my job is not that important to me. I can go over there and defend them and make more money — * * *
“So let me make this clear to each and every one of you, it is important, you don’t pay me enough money to come here and convict an innocent man.”
This language was held improper but not reversible because the majority of this Court found that the argument was invited by defense counsel. See, Elizondo v. State, 545 S.W.2d 453, 454-455 (Tex.Cr.App. 1976).
In the case at bar, the error was preserved. The appellant received an unfavorable ruling on his objection.
When the evidence shows that the defendant shot and killed another, prosecutors should not risk reversal of a conviction by arguing that due process of law is due process of guilt. The practice we condone may lead, in a closer case, to an innocent person being deprived of his liberty because he has been indicted.
The judgment should be reversed and the cause remanded.
PHILLIPS, J., joins in this dissent.