concurring and dissenting on rehearing en banc.
I concur with the majority on the issue of ineffective assistance of counsel. While trial defense counsel’s conduct may have fallen below acceptable standards, the incomplete record of all or any of the prospective testimony leaves us unable to gage the second prong of Strickland. Therefore the majority correctly affirms this issue on direct appeal. The dissent aptly notes that trial defense counsel was ineffective because he did not use tools at his disposal to corroborate the alibi defense. While trial defense counsel clearly should have subpoenaed the corroborating witness in this very close swearing match, he failed to do so.
Beside my disagreement that this case merits en banc consideration mentioned below, I believe the majority opinion ignores part of the state’s final argument which was clearly outside the record. Because of the tenuous nature of the state’s case, it seems to me the argument of the prosecutor, making up conversations in contradiction to the state’s own evidence, was harmful error requiring reversal.
In essence this case boils down to the testimony of a thirteen-year old girl. In a matter of several seconds, she swears she could and did identify a man with a T-shirt over his head. This identification is made on the basis of seeing only appellant’s eyes and shoes. Other adults present could not and did not identify appellant. Against this young teenager’s identification stands the testimony of appellant’s girlfriend, Ava. Ava saw two men other than appellant enter the apartment about the time of the robbery. It is no wonder the jury repeatedly advised the trial court they were deadlocked. The jury sent out a note at 11:00 a.m., February 12th, stating: “We, the jury, cannot reach a verdict.” At 5:18 *386in the evening, the trial court improperly inquired of the jury: “What’s your last vote?” The jury responded they were pretty well split down the middle. The jury was sent home by the retired senior judge presiding and continued deliberating the next day. According to trial counsel, testimony in this case only lasted four hours and fifty minutes. Jury deliberations spanned two days. Against this backdrop, I am constrained to dissent to part of issue five, improper jury argument by the state.
The majority correctly recites the record of the state’s argument. The prosecutor argued Tarauniqui’s sister’s boyfriend, Kenneth Driver, was at the house and that: “Of course, Tarauniqui would mention something about her savings to her family members. Okay. Perhaps her sister let it slip one day that they were saving money.” Trial defense counsel timely objected to this argument outside the record, the objection was properly sustained, and the jury properly instructed to disregard this extraneous argument. Then the state refused to follow the ruling of the trial court and reiterated the identical argument. Masking the extraneous speculation, the state argued the jury could deduce whether or not the word of the savings money ever got out of Tarauni-qui’s mouth to anyone else. “You can reasonably deduce that once Kenneth Driver got that information, he decided he was going to want some of the money.” Again, defense counsel timely objected to the argument outside the record. Inexplicably, the senior judge overruled the same objection to the same argument he sustained moments before. The able prosecutor slammed the cell door shut right after the trial court’s erroneous ruling. The state’s attorney concluded: “You can reasonably deduce that his friend here was told by Mr. Driver. They planned it.”1
So what the state argued was: Tarau-nique might have told a sister, say Tamala. Then Tamala might have told Alicia. Then Alicia might have told Driver. Then, the jury could reasonably deduce Driver told Melancon.
The state argues, and the majority implicitly agrees, this was a reasonable inference or deduction from the evidence. The state’s own witness, Tarauniqui, testified she had just moved her money, and only her husband, Eze, knew the whereabouts of the money. The state’s own evidence, therefore, showed no one else knew the whereabouts of this money. Tarauniqui’s sisters did not know, Driver did not know; only her husband knew where the money was. Contrary to the state’s argument about “What happened that night ...” both Tarauniqui and her husband were gone that evening after the money was moved.2 How can anyone deduce or infer, against the state’s own evidence, that a person no longer in the house conveyed information from one sister to another who, in turn, conveyed the information to Driver, who then conveyed the information to Melancon?
A valid argument can only be made from a valid premise. If the premise is invalid, the argument is invalid. One cannot deduce from either the unknown or, more like this case, from the contrary or the *387impossible.3
The law is well settled. In Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000), we are informed that the approved general areas of argument are: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement. Hathorn v. State, 848 S.W.2d 101, 117 (Tex.Crim.App.1992), cert. denied, 509 U.S. 932, 113 S.Ct. 3062, 125 L.Ed.2d 744 (1993). Even when an argument exceeds the permissible bounds of these approved areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. (Emphasis added.) Todd v. State, 598 S.W.2d 286, 296-97 (Tex.Crim.App.1980). The remarks must have been a willful and calculated effort on the part of the state to deprive appellant of a fair and impartial trial. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App.1997), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). In most instances, an instruction to disregard the remarks will cure the error. Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.Crim.App.1994), cert. denied, 513 U.S. 1060, 115 S.Ct. 671, 130 L.Ed.2d 604 (1994); Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App.1992), cert. denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993). Such was not the case here. To the contrary, by overruling appellant’s objection to the improper argument, the trial court put “the stamp of judicial approval” on the argument, thus magnifying the potential harm. See Good v. State, 723 S.W.2d 734, 738 (Tex.Crim.App.1986).
In Holliman v. State, 879 S.W.2d 85 (Tex.App.-Houston. [14th Dist.] 1994, no pet.), we addressed the extra-legal extraneous argument of the state. The prosecutor suggested the reason appellant didn’t go the hospital or call the police was because the fight was over drugs. The prosecutor again went outside the record and argued why Moore refused to give her forty year old son a key to their home. There, we held the prosecutor fabricated “her own explanation by injecting facts not in evidence.” Id. at 87. These arguments were deemed harmful error. Id. Here, even had Tarauniqui told one sister she was saving some money, there is not a shred of evidence that that sister told another sister or anyone else, much less that anyone told her absent boyfriend the whereabouts of any money. To suggest Tarauniqui told an unknown sister, who told Alicia, who told Driver, who told Me-lencon is like a fisherman throwing chum on the water.
Because the trial court erred in overruling appellant’s objection to the argument, I now consider whether those errors warrant reversal. See TEX. R. APP. P. 44.2. Erroneous rulings related to jury argument are generally treated as non-constitutional error within the purview of Rule 44.2(b). Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Rule 44.2(b) requires any error that does not affect substantial rights to be disregarded. In other *388words, “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after reviewing the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). The following three factors are used to analyze the harm associated with improper jury argument: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.
I have already discussed the tenuous nature of the state’s case, turning as it does upon the thirteen year old’s identification through a T-shirt, of appellant. After sustaining the identical objection to the same extraneous argument moments before, the state reiterates not once, but twice, for a total of three times, the highly improper argument. By the repetition of this extra-legal speculation as fact, the prosecution was able to fabricate just enough motive and opportunity to sway the six jurors who had held out more than a day for acquittal. This is patently not a ease with certainty of conviction; this is the weakest of cases, against a man without a felony record, who testified on his own behalf. In effect, the state’s illicit argument provided the corroboration through illegitimate words, while the defense failed tó produce corroboration through the legitimate witness.
Finally, the futility of the en banc court’s treatment of this case for well over one year palpably demonstrates the wisdom of Tex.R.App. P. 41.2(c). En banc consideration of a case is disfavored and reserved to preserve uniformity or for extraordinary circumstances. I disagree with the court’s consideration of this case en banc.
Even without addressing the visiting judge’s improper solicitation from the jury of its vote before verdict and giving of an Allen charge, I would reverse and remand 4 this case for a new trial based upon the prejudicial and prohibited argument of the state.
. The majority opinion ignores the context of the extra-record argument. It further ignores the patent effect of the error by allowing the state to manufacture motive and opportunity out of whole cloth. Similarly, the majority opinion ignores the preserved error I address.
. The state even argued that Alicia and Driver were alone. At some earlier date Tarauniqui may have told Tamala, another sister, about the money, but not where it was stashed. Tamala, like Tarauniqui, was not present, as the state argued, on the night in question.
. It is not permissible to base an inference upon an inference in order to convict upon circumstantial evidence. Thomas v. State, 148 Tex.Crim. 526, 189 S.W.2d 621, 625 (1945). Here, the house of cards is even more tenuous; an inference is based upon another inference, upon another and yet another. Not only is such an argument illogical, but doubly impermissible when it is directly in the face of the state’s own evidence to the contrary.
. Assuming, as the majority suggests, trial defense counsel once again failed to preserve error, (which I dispute), then surely both defense counsel and the majority have provided fodder for future hearings on this important constitutional issue of ineffective counsel.