dissenting.
I respectfully dissent. In my view the trial court committed reversible error in allowing the prosecutor to comment on ap*327pellant’s failure to call a probation officer as a witness. Accordingly, I would sustain appellant’s second ground of error and reverse and remand.
During final argument at the punishment phase of trial the prosecutor made the following remark:
MS. JEROME [Prosecutor]: ... You heard defense counsel ask him when he was on the stand, if he had an interview with a probation office [sic] and ask yourself, if he was worthy of that probation, where is the probation officer to testify for him? Ask yourself that question because you didn’t hear from him. [emphasis added].
MR. GOMEZ [Defense Counsel]: Your Honor, I object to that. That’s obviously inadmissible testimony.
THE COURT: Objection overruled.
It will be noted that the majority fails to discuss whether the prosecutor’s reference to the probation officer was error. From this I presume the majority concludes that the remark was error. The majority disposes of this error upon two grounds. First, that appellant’s objection was too general to apprise the trial court of the complaint he now makes on appeal and was, therefore, insufficient to preserve error. Second, that the error was harmless.
First, let us consider the form of the objection. As will be shown elsewhere in this dissent, the testimony of the probation officer tendered by the prosecutor to the jury in his remark would not be admissible in evidence. Presumably, the majority would require trial counsel to further make known to the trial court why the testimony is “obviously inadmissible” even to the extent of pointing out that the prosecutor by his remark was advising the jury that the probation officer, if called to testify, would testify that appellant should not receive probation. In my view the majority requires too much of trial counsel. The present case does not involve the situation in which the trial objection differs from the complaint on appeal. Rather, the majority concludes that the objection did not say enough to the trial court. I disagree. When appellant told the court that the prosecutor’s remark is “obviously inadmissible testimony” he properly and adequately apprised the trial court of the complaint he now makes on appeal. Perhaps the majority’s holding that the objection was too general tells us something about lawyers when they become appellate judges. As appellate judges we should not ignore the stress and the ebb and flow of a hotly contested trial. To require a trial lawyer to articulate a better objection than made in the present case ignores the reality of the pit. We on this court have as much time as we wish to put down on paper our reasons. The trial lawyer who must, as the battle rages, rise to his feet and orally state his objection does not enjoy that great luxury.
I turn now to a discussion of why the prosecutor’s remark constituted error. The probation officer was not called to testify. Appellant argues that it was error to allow the prosecutor to comment on appellant’s failure to call the probation officer as a witness because the probation officer’s testimony would have been inadmissible. I agree. In the present case, the prosecutor’s remark concerning the probation officer was specifically directed at the absence of testimony from the probation officer bearing on appellant’s fitness for probation and left the clear impression that the probation officer was not called because he opposed a probated sentence. In Schulz v. State, 446 S.W.2d 872 (Tex.Cr.App.1969), the accused proffered testimony of a psychiatrist that it would be better for the accused to be placed on probation than be sentenced to the Department of Corrections. The court held that the trial court did not err in excluding the testimony. Observing that the practice of admitting such testimony would cause a battle of the experts, the court concluded that the testimony would invade the province of the jury. 446 S.W.2d at 874. Thus, the Court of Criminal Appeals determined that an expert’s opinion as to whether probation or confinement would be best for the accused was not admissible. In Logan v. State, 455 S.W.2d 267 (Tex.Cr.App.1970), the accused proffered testimony of a proba*328tion officer concerning the primary requirement of an applicant for probation and the purpose of probation. The Court of Criminal Appeals in its opinion treated the proffered testimony as similar in nature to that of the psychiatrist in Schulz and again held that the trial court did not err in excluding the testimony.
In the present case the issue is not the admissibility of evidence but rather the propriety of the prosecutor’s jury argument commenting on the fact that the appellant did not proffer the probation officer’s testimony because the testimony would be that the accused should not receive probation. In order to reach appellant’s contention, it must first be determined whether this testimony from the probation officer would be admissible. Since a probation officer’s testimony is not admissible when proffered to prove that an accused should receive probation, I would hold that a probation officer’s testimony is likewise inadmissible when proffered to prove an accused should not receive probation. I would further hold, therefore, that in the present case the probation officer’s testimony referred to by the prosecutor would be inadmissible.
The State relies on cases which hold that a prosecutor may direct comments at the failure of a defendant to call competent and material witnesses. I do not find these cases on point, however, for in each of those instances the witnesses were both available and their testimony admissible. O’Bryan v. State, 591 S.W.2d 464, 479 (Tex.Cr.App.1979) (en banc); Carrillo v. State, 566 S.W.2d 902, 912 (Tex.Cr.App.1978); Kerns v. State, 550 S.W.2d 91, 96 (Tex.Cr.App.1977). More to the point are those decisions which have held that it is reversible error for the prosecutor to comment on the failure of a defendant to call a witness who would not be competent to testify. Grille v. State, 112 Tex.Cr. 561, 17 S.W.2d 833 (1929). In Grille the court held that it was reversible error for the State to comment on the defendant’s failure to call a codefendant as a fact witness to the crime. Grille, 17 S.W.2d at 834. The court’s holding in Grille was predicated on the fact that a codefend-ant was incompetent to testify under the Code of Criminal Procedure which was in effect at that time. Winkle v. State, 506 S.W.2d 891, 897 (Tex.Cr.App.1974); Grille, 17 S.W.2d at 834. Therefore, because the probation officer’s testimony referred to by the prosecutor would be inadmissible I would hold that it was error to allow the prosecutor to comment on appellant’s failure to call the probation officer.
This brings us to a consideration of whether that error was harmless. In my view the error was not harmless and requires reversal. Under the very tests relied on by the majority the argument was manifestly improper, harmful and injected new and harmful facts into the case. In my view the probable effect on the minds of the jurors in the present case caused them to deny appellant probation. In the present case the appellant pleaded guilty. It defies reality not to recognize that, under the facts of this case, he did so hoping for probation. The prosecutor then conceived an adroit means of destroying any chance appellant might have had for probation. Knowing that the jury would perceive the probation officer as an expert in these matters, the prosecutor in his jury argument simply proceeded to advise the jury that the probation officer, if called to testify, would testify that the appellant should not receive probation. Thus, the prosecutor’s remarks injected “new and harmful facts into the case.”
Furthermore, I cannot accept the majority’s argument that the remark was harmless because the term of confinement was in excess of ten years, and, thus, probation legally impermissible. To my mind the jury having heard the testimony of the expert, i.e., the probation officer, recommending against probation, via the prosecutor’s remarks, made certain that appellant would not receive probation by assessing the punishment much in excess of ten years. Moreover, if the expert is against probation the jury can easily be persuaded that the accused should be removed from society for a long period of time. If unfit for probation, then unfit to be free in society. Thus twenty-five years to make sure. In the present *329case the charge was read to the jurors before they retired to consider their verdict. The court’s charge on probation immediately followed the jury’s guilty verdict as instructed by the court and before the jury reached the verdict forms. Thus, before the jury reached a consideration of years, fines and probation the jury knew that if the punishment was more than ten years that appellant would not receive probation. And the jury knew that appellant was unfit for probation because the probation officer told them so — through the prosecutor’s jury argument. In the present case I cannot agree that the improper jury argument was harmless because appellant was assessed a twenty-five year sentence by the jury.
In conclusion I would only briefly comment on the two remaining reasons advanced by the majority in support of its holding that the error was harmless. In the first instance, the majority would have us believe that the prosecutor’s remark was to call the jury’s attention to an earlier objection the State had made to appellant’s testimony which had been overruled by the court and that the appellant’s objection in question (“That’s obviously inadmissible testimony”) had reference to the appellant’s earlier testimony to which the State had objected. Thus, the majority asks us to believe that the appellant by the objection in question admitted that appellant’s prior testimony to which the State objected, and the court overruled, was indeed “obviously inadmissible testimony.” I cannot accept the majority’s argument that the prosecutor, defense counsel and the trial court were all talking about the appellant’s prior testimony at the time of the remark, objection and ruling in question before us on this ground of error. In the second instance, the majority engages in a word count (twenty-nine) out of the jury argument (twenty-four pages and a trial of 140 pages). Prosecutors will find this logic invaluable. Prosecutors who by study and preparation reduce improper remarks to twenty-five words or less escape reversal.
STEPHENS, J., joins in this dissent.