dissenting.
Finding myself in total agreement with the dissenting opinion of Justice Whitham of the Dallas Court of Appeals, see Thomas v. State, 629 S.W.2d 112, 116 (Tex.App.—Dallas 1981), and because I believe that Justice Whitham has stated in his extremely well written opinion everything that needs to be stated concerning the appellant’s complaint that the prosecuting attorney’s jury argument was so prejudicial that it deprived the appellant of a fair trial, this Court should merely state in an opinion that the appellant’s petition for discretionary review is granted and that Justice Whitham’s opinion is adopted in toto as this Court’s opinion. To do more than that adds nothing to the jurisprudence of this State.
However, a majority of this Court does not agree with what I think should be the proper disposition of this cause. In its efforts to do otherwise, it properly concludes that the prosecuting attorney’s jury argument was impermissible, albeit for a different reason than that stated by Justice Whitham. Nevertheless, it fails to reverse this conviction. The majority holds that the argument did not constitute a comment on the appellant’s failure to testify. The opinion states: “but from the standpoint of a lay jury it does not constitute a necessary implication that appellant has failed to testify in his own behalf.” To the conclusion reached by the majority, that the jury argument of the prosecuting attorney does not constitute either a direct or indirect comment on the appellant’s failure to testify, I must respectfully dissent.
Justice Whitham stated what the effect of the complained of prosecuting attorney’s jury argument was in the following words: “Once the jury’s attention is called to the absence of sorrow, remorse, regret or any other act of contrition [on the part of the defendant], it defies logic and common sense to believe that the remark refers to any person other than the defendant.” The majority of this Court, although holding that the argument of the prosecuting attorney was improper, fails to reverse this conviction. By failing to reverse this cause for the reasons stated by Justice Whitham, the majority is indirectly putting its stamp of *486approval on this kind of argument. The majority opinion can now be authority for prosecuting attorneys of this State to make similar arguments as the one made in this cause. However, in failing to reverse this conviction, the majority actually does a disservice to the vast majority of the prosecuting attorneys of this State, indirectly puts its stamp of approval on those prosecuting attorneys who may be categorized as being Machiavellian, and emasculates the provisions of Art. 38.08, V.A.C.C.P. Also, by its holding, the majority only pays lip service to what this Court has stated in the past concerning impermissible and permissible jury argument. See Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.1973), and its progeny. See also Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). The bottom line of the majority’s opinion, by its failure to reverse this conviction, is that it indirectly condones impermissible and improper jury arguments. To such action, I must respectfully dissent.