NATHANIEL KELLY, JR., Appellant v. THE STATE OF TEXAS, Appellee

REVERSE and REMAND. Opinion filed March 26, 1992.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-91-00180-CR
............................
NATHANIEL KELLY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F90-47788-N
..............................................................
O P I N I O N
Before Justices Baker, Kinkeade, and Burnett
Opinion By Justice Baker
        We withdraw our opinion and judgment of February 28, 1992. We substitute the opinion and judgment of this day in their place.
        Nathaniel Kelly, Jr. appeals from a conviction for murder. A jury found him guilty and assessed a life sentence. In three points of error, appellant contends that: (1) he received ineffective assistance of counsel; (2) fundamental error resulted from the prosecutor's improper jury argument; and (3) the trial court erred in refusing to submit a jury charge on voluntary manslaughter. We reverse and remand.
FACTS
        A Dallas Police Detective testified he went to an apartment complex on a "dead person" call. He photographed the scene. He found a revolver on the ground next to a car and the victim's body. He also found a three-blade pocket knife near the body. The deceased's fingerprints were not on the knife. An unidentifiable print was on the back of the blade.
        A resident at the complex testified he looked out of the window when he heard a gunshot. He saw appellant walking away from a woman lying on the ground. Appellant walked back toward his car. He appeared to have a pistol in his hand. He reached inside the car and either put something in the car or took something out. He went back toward the woman on the ground. The witness said it looked like he tried to put something under her. Appellant would not allow people gathering to help the woman. Appellant never cried, nor seemed distressed. Appellant told the detective to call the police. A paramedic testified that when he turned the deceased over, she had a small pocket knife in her hand.         The victim's daughter testified she lived with her mother. She testified appellant was very jealous of other men and had, in the past, threatened her mother. He had also physically abused her mother on occasion. She testified appellant came over to her mother's house and told her that he had some beer for her. He told her to come out with him to the car to get it. Her mother was scared and told her daughter to come with her. The daughter went out to the porch. She saw appellant and her mother standing by appellant's car, talking in normal tones. Appellant walked to the front of the car, reached in, and took out a gun. He went to the back of the car and shot her mother one time. Her mother had a beer in one hand and a bag in the other. Appellant stood about three feet from her. Appellant held the gun and said not to bother the victim. He would not let anyone near her. She testified that her mother sometimes carried a knife.
        A pathologist testified the autopsy revealed a bullet hole slightly back from the center of the left armpit. The bullet's direction showed that the victim's arm was not straight down at her side when she was shot. The wound was consistent with someone bending over and getting something out of the trunk.
        Appellant testified that he is sixty-two years old and had a "boyfriend/girlfriend" relationship with the victim on and off for about ten years. On the Monday before the shooting, he went to her apartment. Her daughter let him in and said her mother was upstairs. Appellant went upstairs where he found the victim and a man counting out rocks of cocaine. He hit her. That Friday, he went to her house and asked her for a beer. She only had a couple of beers, so he offered her more. They went to the car, and he raised the trunk lid. She began to put beer in a sack. She asked him to lend her a knife. When he did, she said, "I'm going to kill you." He reached in the trunk, grabbed his gun, and shot her.
GUILT/INNOCENCE
A. Ineffective Assistance of Counsel
 
1. The Applicable Law
        In his first point of error, appellant contends that he received ineffective assistance of counsel at trial. To establish ineffective assistance of counsel, a defendant must show, first, that his attorney's representation was deficient. Second, he must show that these errors prejudiced his defense depriving him of a fair and impartial trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). We judge whether a defendant has received adequate assistance of counsel by the totality of the representation instead of by isolated acts or omissions. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 107 S. Ct. 1590 (1987).
        Isolated instances in the record reflecting errors of commission or omission by counsel do not make counsel ineffective. An appellant cannot show ineffective assistance by isolating a particular phase of the trial in examining counsel's performance. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Appellant complains that the sixth and fourteenth amendments to the United States Constitution as well as Article I, section 10 of the Texas Constitution were violated by his counsel's failure to provide effective assistance. FN:1
2. Appellant's Contentions
        Appellant cites numerous instances of alleged ineffective assistance of counsel. He contends that the totality of these errors substantially prejudiced appellant at trial and on appeal.
a. Pre-Trial
        Appellant first complains that his counsel filed pretrial discovery motions late. The record reflects that defense counsel filed the motions on the day of trial. However, the record reflects that the prosecutor stated that he had given appellant "his file." On appeal, he contends that there is no way to know whether defense counsel missed any discovery because of the failure to file a timely motion. The State argues that the record reflects that defense counsel had access to the prosecutor's file and that appellant has cited no harm. Appellant speculates as to the matters which a timely motion could have revealed. There is no support in the record for the existence of evidence "missed" by defense counsel. The record reflects that the parties conducted informal discovery. We perceive no harm. See Passmore v. State, 617 S.W.2d 682, 685 (Tex. Crim. App. 1981).
        Appellant next complains that defense counsel failed to request an identification hearing outside the jury's presence. Defense counsel waived a hearing because the makeup of the lineup photographs was not unsatisfactory. The record reflects that the police arrested appellant at the scene as he stood over the body in view of a crowd of people after shooting her while her daughter watched. Identity was not an issue in this case. Defense counsel did not err by refusing to pursue a hearing on identification in this case.
        Appellant next contends that trial counsel did not have a firm command of the facts because of the failure to conduct pretrial discovery as well as the failure to file a timely motion requesting that the jury assess punishment. The record reflects that the trial court instructed counsel that he had to file such a motion before voir dire. Appellant contends these facts demonstrate that defense counsel did not have the legal knowledge necessary to render reasonably effective assistance of counsel. However, the record reflects that the jury did assess punishment. There was no harm.
b. Voir Dire
        Appellant asserts that trial counsel was deficient because he did not lodge objections to the state's voir dire examination of the prospective jurors. He argues that the prosecutor misstated the law and made objectionable comments. The prosecutor stated on voir dire that "the law requires that the jury presume the defendant to be innocent, not that you believe him innocent, not that you think it is going to be proved that he is innocent, but simply that you presume him innocent." Appellant argues that this statement is contrary to section 2.01 of the Texas Penal Code, which states, "All persons are presumed to be innocent . . . ." Tex. Penal Code Ann. § 2.01 (Vernon 1984). The prosecutor's statement was not objectionable.
        Appellant complains that during voir dire the prosecutor stated, without objection, that probation was an option "depending on the defendant's personal background." Appellant complains that this statement informed the jury that there was a problem with appellant's "personal background." The prosecutor was discussing a hypothetical situation where a person disconnected a life support system for an elderly person who was "brain dead." The prosecutor said, "But a jury very well may give you five years, or they might even probate your sentence because they have that option depending upon personal background. Do you see what I'm saying? So there are all millions of facts and circumstances that the jury could take into account."
        The State argues that the comment was not objectionable because the prosecutor was not speaking about appellant's case. The State further argues that if defense counsel had objected, the objection might well have drawn attention to the fact that appellant was not eligible for probation, thus causing more harm than good. We find that this comment was not such that it calls attention to any deficiency in appellant's background.
        Appellant's next complains that the prosecutor, at voir dire, misstated the law of self-defense to the jury. The prosecutor said, "A person is justified in using force against another when and to the degree that he reasonably believes that force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force." Appellant complains that the prosecutor indicated that one can use deadly force in self-defense only where someone is actually using deadly force against the actor. Appellant argues that all that need be shown is that the actor reasonably believe that the force exists. Although the prosecutor did not state the law exactly as it appears in section 9.32(3) of the Texas Penal Code, it was not such a misstatement as might mislead the jury. See Tex. Penal Code Ann. § 9.32(3) (Vernon Supp. 1992). Further, the prosecutor stated that the jury did not have to remember exact definition because if the issue were raised, it would be in the charge. Appellant has failed to show harm stemming from the prosecutor's comments.
        Appellant contends that the prosecutor also misstated the law concerning the duty to retreat and that defense counsel failed to object. The prosecutor said:
In addition to thinking your life is in danger and that person is using deadly force against you, you have a duty to retreat. What that means is we don't live in the wild west anymore. If you walked down the street and somebody pulls a gun on you and you are packing a six-shooter, you don't pull it out and just shoot them dead.
 
The law says that if you can get out of that situation safely, you do that because this isn't a kill-or-be-killed society we live in. It is a society that you look--or the law anticipates that you look for alternatives to force. Does everybody understand that?
Appellant argues that there is no duty to retreat in a "kill-or-be-killed" situation. The State argues that the prosecutor in his argument referred not to a kill-or-be-killed situation, but to the fact that a person should retreat if he can do so safely before taking a human life. Appellant fails to demonstrate any harm.
        Appellant argues that defense counsel should have better explained the law about self-defense and voluntary manslaughter during voir dire. Voluntary manslaughter was not raised by the evidence. The failure of defense counsel to explain those concepts in detail was justified. The prosecutor sufficiently explained the law of self-defense. Defense counsel also discussed self-defense but said he would refrain from asking questions repetitive of those asked by the prosecutor. The charge correctly explained the law regarding self-defense. We perceive no harm here.
        Appellant complains that during voir dire defense counsel directed the jury to consider only the state's witnesses, rather than defense witnesses. Defense counsel stated that "the only thing we would be able to go on would be the testimony of the witnesses that the district attorney presents" in determining whether a lesser included offense was applicable. Appellant argues that this statement in effect told the jury that appellant's testimony was not a consideration in determining whether a lesser included offense was appropriate. However, defense counsel may not have known at that point whether appellant would testify. As trial strategy, he might not have wanted to call attention to that contingency. The statement did not tell the jury that they should not consider witnesses for the defense. We perceive no harm from this statement. Appellant complains that defense counsel did not discuss or qualify jurors on their understanding of or their willingness to follow the appropriate punishment range or to consider the minimum punishment. Telling the panel of critical provisions of law without inquiring of the panel as to their ability or willingness to follow important provisions of law does not normally meet the expected standards of one who diligently represents his clients. Miles v. State, 644 S.W.2d 23, 24 (Tex. App.--El Paso 1982, no pet.). However, in this case, the trial court spent some time qualifying the jurors and questioning them about the range of punishment. Counsel may have chosen not to duplicate these efforts.
c. Opening Statement
        Appellant argues that trial counsel was deficient because he did not state any theory of the case and because he waived opening argument. The State replies that there is no duty to give an opening argument. The State contends that, as a matter of strategy, defense counsel could decide to forego making an opening statement to avoid the danger of promising the jury evidence that may not eventuate. This is an instance of less than stellar performance by defense counsel. However, this incident alone does not establish that appellant received ineffective assistance of counsel.
d. Trial
        Appellant next complains that defense counsel allowed the prosecutor to ask leading questions. Appellant cites numerous volume and page numbers from the statement of facts about leading questions. Appellant argues that the leading question reduced the possibility of impeachment or development of inconsistencies in the witnesses' testimony. In one instance, the prosecutor asked a paramedic leading questions about what type of knife the victim was holding and how it was positioned in her hand. In another instance the prosecutor asked leading questions of a police officer about whether the victim's fingerprints were on the knife. We have reviewed each instance in the record cited by appellant. We find that they were not so egregious that they prejudiced appellant's defense.
        Appellant complains that during the detective's testimony, the State elicited evidence showing the knife found near the victim's body did not have her fingerprints on it. Additionally, through the apartment resident, the State attempted to imply that appellant reached into the car and placed the knife next to the body after the shooting. Appellant complains that trial counsel did not establish through the detective that appellant's fingerprints were not on the knife. Appellant argues that it is likely that trial counsel was unaware of whether the prints on the knife were appellant's since he conducted no pretrial discovery. The State replies that this argument assumes a fact not in evidence. Specifically, that the unidentifiable fingerprint was not appellant's. We find that this is another instance of less-than-perfect performance by defense counsel but not so egregious to deny appellant a fair trial.
        Appellant also complains defense counsel did not object to two questions asked of the apartment resident. The prosecutor asked this witness if he considered unusual the appellant's leaning down and apparently placing something under the body. The prosecutor also asked this witness if he considered unusual appellant's refusal to allow anyone near the body after the shooting. Appellant argues that the evidence elicited was not relevant and was inadmissible under rule 403 of the Texas Rules of Criminal Evidence. See Tex. R. Crim. Evid. 403. The State argues that appellant's demeanor after the shooting was relevant to an assessment of the credibility of his defense and reflected his intent. A lay witness may testify in the form of an opinion if the witness rationally bases the opinion on his perception and if it is helpful to a clear understanding of his testimony. Tex. R. Crim. Evid. 701. We hold that this evidence, even if improperly admitted, was not so prejudicial as to affect the outcome of the trial.
        Appellant complains defense counsel did not object to leading questions asked of the victim's daughter. Appellant cites unobjected-to hearsay statements by the daughter quoting statements made by her mother in conversation with appellant. The hearsay statement appellant cites in the record was that a few days before the shooting, appellant asked her mother to come outside with him and that she would not go. The daughter said, "[my mother] said [to appellant] come back in the house and talk to [me]." This is the sole hearsay testimony appearing on the page of the statement of facts cited by appellant. It could have been trial strategy not to object to this statement as it was cumulative of other evidence showing that the victim was afraid of appellant.
        Appellant complains the daughter testified about where the complaining witness was looking immediately prior to the shooting. The prosecutor asked, "Was [the victim] facing him or was her side to him or was her back to him?" The daughter answered, "No. She was bending over. She looked up--I guess she saw him coming, and she looked up." The record reflects that this answer was nonresponsive to the question. Defense counsel could not object in time to prevent the answer from coming into evidence. In any case, we see no harm from this evidence.
        Appellant complains that the daughter testified about appellant's mental state after the shooting. However, at the page of the statement of facts that appellant cites, there is no testimony about appellant's mental state. She did comment concerning his "thoughts." At one point the prosecutor asked, "After you called the police, did something begin to worry you?" The daughter answered, "Yes. I thought about I had left my kids at the scene. So I ran back around there to get them. And he thought I was coming toward them so he put the gun up and told us to don't bother her." This answer was nonresponsive. Again, defense counsel could not anticipate this answer about appellant's thoughts. Although the statement about appellant's thoughts involved speculation, we perceive no harm here.
        Appellant contends that defense counsel was ineffective because he did not guide appellant in a question-and-answer format about the shooting. Instead, defense counsel asked appellant, "Do you want to tell the jury?" In response, the State asked that it be in question and answer form. Because this may have been trial strategy, we find this contention meritless.
        Appellant complains that during the State's cross-examination of appellant, the prosecutor went into extraneous offenses involving violence by appellant. Appellant complains that this evidence was not objected to and was prejudicial. Appellant complains that the prosecutor elicited evidence that appellant struck the victim across the mouth a few days before the shooting. The State contends that this evidence was admissible under section 19.06 of the Texas Penal Code as evidence of the killing and of the previous relationship between the victim and the accused. Tex. Penal Code Ann. § 19.06 (a) (Vernon Supp. 1992). The evidence came in when appellant was testifying that he was angry with the victim for "fooling" with drugs. It is possible that it was trial strategy not to object to this evidence because it involved the victim's lifestyle and appellant's disapproval of that lifestyle.
        Appellant complains that the prosecution asked appellant about a young boy whom appellant threatened at gun point after the shooting. This evidence would be admissible as res gestae. See Rios v. State, 147 Tex. Crim. 125, 179 S.W.2d 509, 509 (1944). Appellant also complains that the State elicited testimony about a murder in Arizona for which appellant was acquitted. Admission of an extraneous offense involving a defendant's acquittal is inherently prejudicial and constitutes reversible error. Kerbyson v. State, 711 S.W.2d 289, 290 (Tex. App.--Dallas 1986, pet. ref'd). The trial of an accused should be on the accusation before the court and not on collateral crimes or for being a criminal generally. Trial courts exclude evidence of extraneous offenses because it is inherently prejudicial and tends to confuse the issues in the case. Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988), cert. denied, 110 S. Ct. 209 (1989). An extraneous offense is only admissible if it is relevant to a material issue in the case and that relevancy outweighs its inflammatory or prejudicial potential. Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988). At trial, the following occurred:
[PROSECUTOR]: We'll get to that in just a minute, Mr. Kelly. You told us that she told you she killed her previous husband. Is that right?
 
[APPELLANT]: She talked about that--
 
[PROSECUTOR]: Bragged about it alot?
 
[APPELLANT]: All the time.
 
[PROSECUTOR]: Were ya'll talking about people dying, people getting killed, and this subject came up?
 
[APPELLANT]: It was just a habit that she had.
 
[PROSECUTOR]: You never discussed anything like that in your background?
 
[APPELLANT]: No, never.
 
[PROSECUTOR]: Why was that? I mean, ya'll had a ten-year relationship and she is telling you about killing her former husband. Did you ever tell her anything about your background?
[APPELLANT]: No, because I never--I never have done anything.
 
. . .
 
[APPELLANT]: I ain't never killed nobody.
(Emphasis added.) Later, the prosecutor elicited testimony about the shooting in Arizona. Appellant testified that a woman shot his brother and "shot out of the door" and "hit" him. He said that he did not have to go to court concerning the matter and that the verdict was "not guilty." The prosecutor asked whether he remembered telling a police detective that he was "acquitted." Appellant stated that he did not remember. Later, the prosecutor called a police investigator. The investigator testified he asked appellant whether appellant was involved in the murder of a woman in Arizona. He quoted appellant as saying "Yes, I did. I was involved in a murder. I was acquitted in Phoenix, Arizona." The prosecutor asked the investigator whether appellant used the word "acquitted" or whether appellant used the words "charged" or "self-defense." The investigator stated that appellant said "acquitted."
        It was clear that during his questioning of appellant, the prosecutor was implying that appellant had a killing in his background. The prosecutor was attempting to bring up this extraneous offense by asking whether appellant had something "like that" in his background. Had appellant objected, this evidence may not have come in before the jury. At the very least, defense counsel could have preserved reversible error by objecting.
        In a similar case, the Texarkana court referred to brief voir dire, the lack of defense evidence, and the State's introduction, without objection, of extraneous offenses as a basis for finding that representation in that case was not reasonably effective. The court held that while failing to put on a defense may be part of trial strategy, failing to object to the State's proof of extraneous offenses cannot reasonably be trial strategy. The court found that the introduction of extraneous offenses and resulting severe penitentiary sentence indicates that the deficient representation prejudiced the appellant's defense. See Strickland v. State, 747 S.W.2d 59, 60-61 (Tex. App.--Texarkana 1999, no pet.). Similarly, the introduction of a prior shooting prejudicially affected appellant's self-defense issues. Appellant had no prior conviction for a violent offense. In this case, the jury assessed a life sentence.
e. Argument--guilt/innocence
        Appellant next complains that defense counsel's argument on guilt/innocence was too brief and that the only reference to self-defense was the following statement, "It is self-defense." The record reflects that defense counsel mentioned "the role that the deceased played" in the shooting. He discussed the character of the deceased and her lifestyle concerning drugs and alcohol. The evidence in this case was overwhelming. Defense counsel did not have many facts to work with about self-defense. We hold that this argument does not constitute deficient performance.
        Appellant complains that defense counsel did not attempt to attack the credibility of the State's witnesses, did not discuss the burden of proof, and did not mention appellant's testimony in his closing argument. The State replies that it could be strategy to let the jury recall the testimony rather than discuss it in view of the fact that appellant's story was "weak." The State also suggests that defense counsel refrained from attacking the credibility of the State's witnesses because they were "credible" people. The State points out that defense counsel did discuss the fact that the jury was to determine the credibility of the witnesses and the motives of the State's witnesses, namely the victim's family, in wanting appellant punished regardless of his defense. Counsel discussed the character of the deceased and her unattractive lifestyle. He also urged the jury not to make a hasty finding of guilt. Defense counsel's argument was not so deficient that it was reversible error on its own.
2. Application of the Law to the Facts
        We should make a full inquiry into the strategy and tactics of counsel only if there is no plausible explanation for the basis for the strategy and tactics of trial counsel. Small v. State, 692 S.W.2d 536, 539 (Tex. App.--Dallas 1985, pet. ref'd). An isolated failure to object does not necessarily render counsel ineffective. However, where the record shows numerous occasions where improper and highly prejudicial evidence was admitted or numerous occasions of improper jury argument, these deficiencies will lead the court to conclude that there was a denial of effective assistance of counsel. See Weathersby v. State, 627 S.W.2d 729, 730 (Tex. Crim. App. [Panel Op.] 1982). This Court has reviewed the record as a whole. In particular, this Court has reviewed the unobjected-to evidence about the extraneous murder in Arizona. The admission of this evidence could only have prejudiced his defense. The prosecutor repeatedly introduced evidence, all without objection, about that offense. Had appellant objected, the result of the trial might have been different. We hold that the cumulative effect of the repeated, unobjected-to references to the extraneous offense resulted in inadequate and ineffective representation. See Ruth v. State, 522 S.W.2d 517, 519 (Tex. Crim. App. 1975). We hold that appellant has proved that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding might have been different on guilt/innocence. See Hernandez, 726 S.W.2d at 59. We sustain appellant's first point of error insofar as it concerns ineffective assistance of counsel at the guilt/innocence stage of trial.
PUNISHMENT
A. Ineffective Assistance of Counsel
        Appellant complains he received ineffective assistance of counsel at the punishment phase of trial. The standard of review for ineffective assistance of counsel at the punishment phase is whether the appellant received reasonably effective assistance of counsel. Ex parte Walker, 794 S.W.2d 36, 37 (Tex. Crim. App. 1990). In reviewing an attorney's assistance, we examine the totality of the representation. Walker, 795 S.W.2d at 37. The test is whether counsel is reasonably likely to render and rendered effective assistance. Craig v. State, No. 333-90, Slip op. at 2 (Tex. Crim. App. March 4, 1992)(not yet reported); Ex parte Duffy, 607 S.W.2d 507, 514 n. 14 (Tex. Crim. App. 1980). "Reasonably likely to render" refers to competence and "rendered" refers to effectiveness. Ex parte Duffy, 607 S.W.2d at 516 n.17. We review the entire record to determine competence. We review the punishment phase both alone and also in light of the entire record to determine effectiveness.
        Appellant complains that, at the punishment phase, the State proved a prior arson conviction without proving several preliminary facts "essential" to the admissibility of this prior conviction. Appellant complains the only evidence the State introduced about the prior conviction is State's exhibit number 33. This exhibit is an order setting aside the judgment of conviction, dismissing the indictment, and discharging the defendant from probation for a 1974 charge of arson. Appellant complains the State should have proved that appellant pleaded guilty freely and voluntarily and that appellant was represented by counsel. See Maxey v. State, 626 S.W.2d 180, 181 (Tex. App.--Corpus Christi 1981, pet. ref'd).
        Appellant's prior criminal record was admissible under article 37.07, section 3(a) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a) (Vernon Supp. 1992). Prior criminal record includes probated sentences. See Elder v. State, 677 S.W.2d 538, 539 (Tex. Crim. App. 1984). State's exhibit 33 also included the indictment for the arson offense. The charging instrument for a prior criminal record is also generally admissible. See Fairris v. State, 515 S.W.2d 921, 923 (Tex. Crim. App. 1974). It is the defendant's burden to show a denial of the right to counsel, even if the judgment does not recite he was without counsel. See Lopez v. State, 574 S.W.2d 563, 566 (Tex. Crim. App. [Panel Op.] 1978). The record does not show appellant's plea to the arson charge. The State did not have to prove appellant entered his plea of guilty freely and voluntarily. These contentions are without merit.
        Appellant complains that at the punishment phase, the State cross-examined appellant's wife about the Arizona offense. The prosecutor asked her, "Did your husband ever mention to you that he had killed a person in Arizona several years back?" There was no objection to this question or to the answer of "Yes." The State replies that the questions were proper to rebut appellant's statement that he had never killed anyone. We have previously held that counsel's performance was deficient in allowing the admission of this evidence at the guilt/innocence phase.
        Appellant complains defense counsel's argument at the punishment stage was too brief and that he made no attempt to present mitigating evidence other than to say appellant had been a "good citizen." He further complains the prosecutor argued, without objection, that appellant's punishment should be more severe because he had taken another person's life in Arizona. The prosecutor argued:
I'm going to ask you for a life sentence in this case. And I don't have any problem whatsoever asking for that because of what he has done, because of what he has been in his life.
 
. . .
 
And you tell me by your verdict what's proper because even if you give him a life sentence, he is still going to be down at the Texas Department of Corrections seeing his family, writing letters, using the phone, watching T.V., going to class, doing all the things that we do every day in our life. He is not going to be outside society. He is just going to be locked up where there won't be another [murder victim], there won't be another arson, there won't be another person in Arizona. It will protect us.
 
. . .
 
And if you give him five, or ten, or fifteen, or twenty, or thirty years, you're telling this man right here you can commit arson, you can do the things that we heard about in Arizona through the wife, you can go out and premeditate and plan to kill someone, and you can lie about it, but that is not as bad as punishment should be. That is not a maximum case. Well if it isn't a maximum case, what in God's name is? What does it take to put someone away?
(Emphasis added.) The fact finder should not punish an accused for collateral crimes or for being a criminal generally. The court or jury should assess punishment based upon the accusations in the indictment. Lomas v. State, 707 S.W.2d 566, 568 (Tex. Crim. App. 1986). Asking the jury to assess punishment based on the extraneous offense mentioned would be reversible error had defense counsel lodged an objection. See Lomas, 707 S.W.2d at 570 n.3. We hold that defense counsel was deficient in his performance because he did not object to this argument.
        Reviewing the totality of the representation, including the pretrial representation, the guilt/innocence phase, and the punishment phase, we hold that counsel was not reasonably likely to render effective assistance. See Craig, slip op. at 2. After reviewing the record as a whole, we conclude that counsel's representation, as it impacted the punishment phase of the trial, was not reasonably effective. See Ex parte Duffy, 607 S.W.2d at 515-16. Considering the punishment phase alone, we hold that counsel did not render reasonably effective assistance. Ex parte Duffy, 607 S.W. 2. at 514 n.14. We sustain appellant's point of error insofar as it concerns ineffective assistance of counsel at punishment.
B. Punishment Argument
        In his second point of error, appellant contends that the trial court erred in permitting the prosecutor to argue that the jury should increase appellant's punishment because of an extraneous offense. Appellant complains of the same argument discussed under point of error one. The State argued that if appellant were given a life sentence, then "there won't be another arson, there won't be another person in Arizona . . . ." The prosecutor also argued that by giving a lesser sentence "you're telling this man right here you can commit arson, you can do the things that we heard about in Arizona through his wife . . . ." Defense counsel did not object to this argument.
        There must be a timely, proper, specific objection to a prosecutor's complained-of jury argument for the defendant to preserve the complaint for appellate review. Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987), cert. denied, 486 U.S. 1061 (1988). However, the courts recognize an exception to this general rule. The exception is when improper argument creates a fourteenth amendment due process violation because the prosecutor's argument "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Miller, 741 S.W.2d at 391. Failure to timely object does not waive error created by a prosecutor's argument that is so inherently prejudicial that no instruction would cure the harm. Curtis v. State, 640 S.W.2d 615, 618-19 n.4 (Tex. Crim. App. 1982).
        As discussed earlier, this argument was improper under Lomas. See Lomas, 707 S.W.2d at 570. Here, the prosecutor encouraged the jury to give appellant a harsher sentence because of the extraneous offenses. Appellant received a life sentence. We hold that reversible error occurred despite the fact that there was no objection. The prosecutor's argument so infected the trial with unfairness as to make the resulting punishment a denial of due process. An instruction to disregard could not have cured the harm. Curtis, 640 S.W.2d at 618-19 n.4. We sustain appellant's second point of error.
VOLUNTARY MANSLAUGHTER CHARGE
        In his third point of error, appellant contends that the trial court erred in refusing to submit a charge on voluntary manslaughter. Our disposition of points one and two make it unnecessary to discuss appellant's third point of error.
        We reverse the trial court's judgment. We remand the cause for a new trial.
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
910180F.U05
 
FN:1 Appellant's point of error is multifarious because it improperly combines federal and state constitutional claims in one point of error. See Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991); Segura v. State, No. 05-91-00279-CV (Tex. App.--Dallas January 30, 1992) (not yet reported).
File Date[03-26-92]
File Name[910180F]