dissenting.
I dissent to the majority opinion’s ruling on the prosecutor’s jury argument.
The first argument that was improper constituted an improper comment about defense counsel. The prosecutor argued:
“... what would he [appellant] have to do before they [defense counsel] would stand up here and tell you members of the jury to send him to the penitentiary....”
See Bray v. State, 478 S.W.2d 89 (Tex.Cr.App.1972); Spencer v. State, 466 S.W.2d 749 (Tex.Cr.App.1971). The majority’s conclusion that the argument was a proper opinion that probation was not appropriate in this case ignores the fact that the argument actually was that defense counsel should not have argued in favor of probation.
I also do not agree with the majority’s statement that evidence of appellant being on probation for burglary demonstrates he had terrorized others. It is not an element of burglary that any person be on the burglarized premises or even in the vicinity at the time of the offense. See V.T.C.A., Penal Code Sec. 30.02. If the argument is construed as a reference to the facts of the offense for which appellant was on probation, which the majority apparently is doing, it goes beyond the permissible limit of showing only the fact of conviction.
For these reasons I dissent.
CLINTON and TEAGUE, JJ., join.