(concurring in part and dissenting in part).
I concur in the affirmance of this case with respect to the first ground of error because I do not believe the argument complained of was of sufficient gravity to have deprived appellant of a fair trial. I do, however, take exception to the majority’s reliance on Alexander v. State, Tex.Cr.App., 482 S.W.2d 862, in its asserted alternative basis for disposing of this ground of error.
In Alexander, the defendant contended on appeal that the trial court had improperly admonished him with respect to the permissibility of jury-recommended probation in three jointly-tried, guilty plea cases. This issue of statutory construction was held moot because the punishment assessed in that case would have precluded such a recommendation in any event. Jury argument was not at issue there.
In Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230, the conviction was reversed for improper prosecutorial jury argument on the subject of probation even though the punishment assessed precluded a recommendation for probation by the jury. In two separate dissents, both by Judge Douglas, it was asserted that Alexander v. State, supra, should have been applied. The inapplicability of that case, however, should have been obvious. To hold that improper jury argument regarding probation is harmless or the issue moot whenever it achieves its purpose of securing punishment to a degree that precludes a recommendation of probation or otherwise diminishes consideration of the issue is to hold in effect that the very success of the improper argument renders it harmless. This internal inconsistency should be apparent to all.
Although I agree that the argument complained of in the instant case does not present reversible error, I do so not because of the punishment assessed but despite it.
Having made these comments, I concur in the affirmance of this conviction.