(concurring).
I concur in the result reached, but desire to express my own views as to the jury argument of which appellant complains.
At the penalty stage of the trial the prosecuting attorney urged the jury to give the appellant “time in the penitentiary” and not to grant probation. Then he stated:
“ . . .1 submit to you that you give him a long term in the penitentiary as the law indicates to you when they put in the maximum to the punishment for the crime of rape. I tell you that that is appropriate.
“For reasons that I can’t tell you about, I would suggest to you that the very minimum time in the penitentiary that you assess is sixty years, would be appropriate. However, keep in mind, you twelve people represent Tarrant County — ”
At this point appellant’s counsel asked to approach the bench and a discussion ensued outside the court reporter’s hearing. Thereafter appellant’s counsel asked the reporter to make a notation that he would be making an objection “later on outside the presence of the jury.” Another bench discussion then took place after which appellant’s counsel stated:
“Your Honor, at this time, I am going to object to counsel’s argument concerning ... I think he said something to the effect that for reasons that I can’t tell you ... I think is an inappropriate term — appropriate sentence by the jury would be sixty years for the reasons that it is improper argument.”
*640The objection was then sustained and the jury instructed to disregard the argument complained of for any reason in their deliberations. The motion for mistrial was denied.
“It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper.” 56 Tex.Jur.2d, Trial, Sec. 271, p. 631.
While counsel has a right to make a recommendation as to punishment, “[cjounsel for the state may not base his argument regarding punishment on matters outside of the record.” 56 Tex.Jur.2d, Trial, Sec. 278, pp. 624-625. See also Lenzi v. State, 456 S.W.2d 99, 104 (dissenting opinion) (Tex.Cr.App.1970) and cases there cited.
The prosecuting attorney was clearly wrong in stating “For reasons that I can’t tell you about. . . . ” If I could conclude from the record that the argument was a deliberate attempt to get around the trial court’s jury instruction not to discuss the matter of parole or to infer that he (the prosecutor) had other information not reflected by the record which would justify the recommended penalty, I would not hesitate to reverse this cause.
However, as I read the argument in the context in which it was made, the objection made at the time and the judge’s prompt instruction to disregard, I cannot conclude that error is so harmful as to call for reversal.
Certainly such argument is not to be condoned and prosecutors should be warned that prompt jury instructions to disregard by the court will not always remove the reversible nature of the error.
For the reasons stated, I concur reluctantly.