(concurring).
While I concur in the results reached by the majority, I am unable to accept their reasoning in disposing of appellant’s ground of error complaining of the prosecutor’s argument on fingerprints. The argument complained of was, “Good professional burglars don’t leave fingerprints.” The analysis of the majority is as follows:
“It is common knowledge that experienced, good or professional burglars do not leave fingerprints. Defense counsel pointed out the fact that there was no testimony of fingerprints. The argument of the prosecutor was in reply to that of defense counsel.”
The majority assert that the proposition is common knowledge. Are they creating an additional realm of permissible jury argument? Cf. Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230. It is often said that the parole law is common knowledge, but that does not mean it may be argued to the jury. It does not follow, from something being common knowledge, that it is automatically proper jury argument. If the majority mean something else, let them explain it.
The majority also assert that the prosecutor’s argument was invited by that of defense counsel. How ?! Defense counsel makes a perfectly legitimate argument on the failure of the State to produce evidence of fingerprints. How can this proper argument based on the evidence invite or authorize argument from outside the record? It is only improper argument that will invite and authorize the prosecutor to follow defense counsel outside the limits of legitimate jury argument, and even then, reply is invited only on the particular matters or subject matter gone into by defense counsel. It is proper to comment in argument upon the failure of the opposing party to call for or produce favorable evidence. Cf. Miller v. State, Tex.Cr.App., 458 S.W.2d 680; Joines v. State, Tex.Cr.App., 482 S.W.2d 205. It is improper to argue from outside the record. Here appellant commented on the failure of the State to produce any evidence of fingerprints. The State replied by going outside the record. If the majority’s rule that even proper argument invites the State to go outside the record is now the law, the defense attorneys in this State would be well advised to waive argument, since by making any argument they will be giving the prosecutors free license to go outside the record on any matter mentioned. In this respect it should be pointed out that the majority’s interpretation of Overton v. State, Tex.Cr.App., 490 S.W.2d 556, is thoroughly wrong. Overton did not say that the argument there complained of was invited by defendant’s argument. To the contrary, Overton pointed out that the subject matter of the prosecutor’s argument was invited, but that the assertion made did, in fact, go too far and constituted error. It was upon the action of the trial court sustaining the objection and instructing the jury to disregard that the ground of error was overruled. Contrary to what the majority say, if anything in the disposition of that ground of error in Overton was dictum, it was the assertion that argument was invited.
The majority, then, have presented no reason for overruling this ground of error that is convincing to me. I concur in the affirmance of the case only because the evidence of guilt is so conclusively established by the evidence presented to the jury that I find the improper argument of the prosecutor was harmless beyond a reasonable doubt.
I also take exception to the majority’s unfounded suggestion that the res gestae *815rule is superior to the United States Constitution. I thought such misconceptions were laid to rest in Smith v. State, Tex.Cr.App., 507 S.W.2d 779. Let us not risk conjuring up old ghosts with loose language. The bench and bar of this State should have no misconceptions about the fact that when a statement is obtained in violation of constitutional rights the mere statement “res gestae” will not operate as “magic words.” Here, however, it appears the statement was spontaneous, and not in response to questioning. There being no constitutional infirmity, the independent res gestae exception to the statutory rule against oral confessions in Article 38.22, V.A.C.C.P., came into play. It is in this sense that the res gestae rule is independent of rules of voluntariness of confessions. But in no sense is it superior to the Constitution. Another statement which was in response to a question asked after arrest was properly excluded.
For the reasons stated, I concur in the results only.