dissenting.
This is an appeal from a conviction for aggravated robbery in which the punishment assessed was ten years confinement.
In his second ground of error, appellant contends the prosecutor committed reversible error by arguing to the jury a fact not in evidence which was inflammatory and prejudicial. I agree and would reluctantly reverse.
The State’s case against appellant consisted of nothing more than the eyewitness identification of him by the robbery victim. Since appellant had worked for Mr. Cooley approximately one year prior to the robbery, Cooley’s identification of him was perhaps more convincing than the average eyewitness testimony. It might be therefore understandable that it was thought to be unnecessary to dust for appellant’s fingerprints on the door knob Cooley told the police the robber touched, to place appellant in a corporal lineup for Cooley’s identification when he was arrested two days after the offense, or to retrieve the bullet apparently lodged between the wall and the building structure Cooley reported had been fired by the perpetrator, or to have any other crime scene work done in the case.
By the same token, it seems understandable that the defensive tactic pursued was to vigorously cross-examine Cooley and the State’s two law enforcement witnesses regarding the State’s case, including discrepancies in testimony1 and the fact it consisted of nothing corroborative of Cooley’s word, then place the accused (who had never been convicted of a felony) on the stand to give his version of his activities at the time of the robbery.
The parties having thus joined the dis-positive issue in the case, it could have been hardly surprising to the State (after waiving opening argument) that defense counsel proceeded to dwell in what the State had failed to show, then zeroed in on the only evidence the State had: Cooley’s identification.
The effectiveness of counsel’s argument is plain even from the cold record before us. Therefore, the fact that the prosecutor reacted is not surprising either. But unfortunately, his reaction found its way into his opening statement to the jury:
“May it please the Court, Mr. Wilson, Ladies and Gentlemen of the jury.
First of all I would like to thank you for your time and the attention that you put into this case. It hasn’t been a very long case and it probably could have been just one witness, it could have been Mr. Charles W. Cooley who would come to the stand and say, ‘It was this man that robbed me at gunpoint.’
And let me tell you what Mr. Cooley asked me yesterday. He said, ‘Who’s on trial here?’ That’s what Mr. Cooley said.”2
Appellant’s objection was sustained, the prosecutor was instructed to “stay within the testimony,” but a motion for mistrial was overruled.
In Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980) we observed that a two step analysis has coalesced for determining whether a particular jury argument requires reversal of a conviction. First, it must be determined whether the argument falls within the legitimate areas of oral advocacy: (1) summation of the evidence; (2) reasonable deduction or inference from *406the evidence; (3) answer to argument of opposing counsel; and, (4) plea for law enforcement. Second, if the argument does not fall within, and in fact “exceeds the permissible bounds of the above 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. Kerns v. State, 550 S.W.2d 91 (Tex.Cr.App.1977); Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972).” Todd, supra, at 297.
Applying this analysis to the instant case, I initially agree agreement with the trial court that the prosecutor’s informing the jury of a statement by his main witness made to him “yesterday” is outside the record. But the State, (while conceding this) contends the remark “was a reply to” and in “rebuttal of” appellant’s “effort in argument to show poor and incomplete police work,” citing Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973). In sum, the State contends the remark was “invited” by defense counsel and directs us to “see Jones v. State, 582 S.W.2d 129” (Tex.Cr.App.1979).
The State’s argument illustrates the erroneous notion that a perfectly proper argument can “invite” a “reply” by the prosecutor which is outside the record. Contrary to this notion, the case cited by the State makes it clear that an argument which is otherwise improper may be justified and therefore legitimate, only if made in reply to an improper argument by opposing counsel:
“The arguments by both parties as to what could or could not be done with the unidentified fingerprint were outside the record. Appellant is correct that it is improper for the prosecution, in argu-
See also Todd, supra; Rodriguez v. State, 520 S.W.2d 778 (Tex.Cr.App.1975); Hill v. State, 518 S.W.2d 810 (Tex.Cr.App.1975) (Odom, J., concurring); and see, e.g., Mays v. State, 563 S.W.2d 260 (Tex.Cr.App.1978); Hefley v. State, 489 S.W.2d 115 (Tex.Cr. App.1973); Turner v. State, 482 S.W.2d 277 (Tex.Cr.App.1972); Sennette v. State, 481 S.W.2d 827 (Tex.Cr.App.1972); Pierron v. State, 475 S.W.2d 775 (Tex.Cr.App.1972); Thomas v. State, 468 S.W.2d 90 (Tex.Cr.App.1971).
Here, defense counsel had argued nothing other than evidence adduced during trial: no lineup was conducted; no fingerprint or other crime scene evidence had been collected; no gun was recovered.4 Then, making inferences from that evidence, defense counsel merely observed the State had brought in no physical evidence connecting appellant to the offense; therefore, the State’s entire case was based on Cooley’s identification. But defense counsel did not make a personal attack on Cooley, his veracity or his intentions. Instead, counsel suggested Cooley was making an honest mistake in believing the robber had been appellant, just as he had made errors concerning the denominations of the currency taken in the robbery.5 (Appellant had testified under the State’s crossexami-nation that Cooley had once before failed to recognize him when he had come into the shop out of his work uniform.)
Thus, the State’s contention that the above wholly legitimate argument by de*407fense counsel justified a response outside the record, is untenable.
Having concluded the argument complained of constituted error, I now turn to a determination of the second step of our analysis: whether the error requires reversal in this case.
Analysis of this question requires consideration of not only the record as a whole, including the facts adduced, the issues involved, the nature of the offense and the verdict,6 but also the possibility that the conviction resulted from passion or prejudice engendered by the argument,7 or from the jury’s consideration of matters other than evidence duly processed according to law.8 Clearly, the harm or lack thereof attending any given argument can never be determined by considering the argument in a vacuum. It follows that a patently egregious argument might be rendered harmless by other attributes of the case such as overwhelming evidence or the failure of the argument to touch a material issue. See, e.g., Hill, supra, (Odom, J., concurring) (Roberts, J., concurring). Conversely, the very argument which appears innocuous in one case might constitute reversible error in another. In sum, this determination can only be made case by case. Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1976).
Standing alone, the improper argument complained of here does not appear to be particularly extreme, and no doubt would not require reversal if repeated in some other cases. However, ’as chronicled above, the only real issue in this case was whether the jury believed beyond a reasonable doubt that a man all parties agreed was upstanding, was correct in identifying the accused as his assailant. Thus, the prosecutor’s informing the jury that the complainant had asked him, “Who’s on trial here?” injected inadmissible information into the proceeding which had the effect of bolstering the credibility of the very witness whose credibility was in question. Moreover, this new information inferentially indicted defense counsel for utilizing improper tactics in the defense of appellant, when, in fact, his technique was beyond reproach. And finally, interjection of the complainant’s query was calculated to operate on the emotions of the jury by castigating an inclination any juror might harbour to believe appellant or reasonably doubt the accuracy of his identification as the robber by the witness Cooley.
More than ten years ago the Court was constrained to note the “growing tendency by prosecutors to go outside the record in jury argument and then, on appeal, submit that such was not error....” Stearn v. State, 487 S.W.2d 734, 736 (Tex.Cr.App.1972). The purpose of jury argument was reiterated, quoting from Pena v. State, 137 Tex.Cr.R. 311, 129 S.W.2d 667, 669 (1939), as follows:
“The object and principle purpose of an argument to the jury, as we understand it, is to aid and assist them in properly analyzing the evidence and arriving] at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence. Nor should resort be had in argument to arouse the passion or prejudice of the jury by matters not properly before them.”
487 S.W.2d at 736.
If the prosecutor is so convinced of the credibility of his sole eyewitness that he chooses to hinge a conviction on it alone *408without the necessity of bringing forth any other evidence connecting the accused to the offense, then, at a minimum, fairness requires the State must trust the jury to decide the question of guilt on that basis. Interjection of inadmissible facts which tend to divert the jury’s attention from the issues properly joined should not be tolerated. Stearn, supra; Pena, supra.
In light of the evidence and the issues involved in the trial of this cause, prejudicial effect of the prosecutor’s comment could not have been removed from the jury’s consciousness;9 accordingly, the trial court erred in overruling appellant’s motion for mistrial.
The majority acknowledges the accuracy of the analysis I have explicated but then fails to apply it faithfully.
I dissent.
MILLER, J., joins.. For example, Cooley testified on direct that the robber had taken a total of $360.00 or $370.00, including two one hundred dollar bills and one fifty dollar bill.
The investigating officer, however, testified on cross-examination that Cooley had reported $330.00 missing but was unable to give any information regarding the denominations of the currency.
. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
. Jones, supra, at 135.
. Compare Hill v. State, 518 S.W.2d 810, 812, n. 1 (Tex.Cr.App.1975).
. Counsel told the jury:
"Well, this case—not that Mr. Cooley is lying, but because I don’t think Mr. Cooley would come in here and intentionally point ment, to refer to matters outside the record. However, in the instant case, the prosecutor’s argument was invited by defense counsel. If an argument is invited, then it is not improper and, therefore, does not constitute error. [Citations omitted.]”3 out Charles Cannon and say that’s the man that robbed me, as a lie. I don’t think he did that. I think he honestly believes that Charles Cannon is the man that robbed him, but he is wrong. Just like he told Officer Rodrigues he couldn’t recall the denominations of the money.”
. Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973); Douglas, J., dissenting); Gatlin v. State, 113 Tex.Cr.R. 247, 20 S.W.2d 431 (1929); see also Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); and Houston v. Estelle, 569 F.2d 372 (5 CA 1978).
. Blansett v. State, 556 S.W.2d 322 (Tex.Cr.App.1977); Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1976) (Opinion on State's Motion for Rehearing); Hodge v. State, 488 S.W.2d 779 (Tex.Cr.App.1973).
. Turrentine v. State, 536 S.W.2d 219 (Tex.Cr.App.1976); Renn v. State, 495 S.W.2d 922 (Tex.Cr.App.1973); Cazares v. State, 488 S.W.2d 110 (Tex.Cr.App.1972); Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527 (1961); Porter v. State, 154 Tex.Cr.R. 252, 226 S.W.2d 435 (1950); Palmer v. State, 148 Tex.Cr.R. 39, 184 S.W.2d 471 (1945).
. See Cook v. State, 537 S.W.2d 258 (Tex.Cr.App.1976); Edmiston v. State, 520 S.W.2d 386 (Tex.Cr.App.1975); Boyde v. State, 513 S.W.2d 588 (Tex.Cr.App.1974).