*1 opinion the Su- the As we understand of Illinois, Witherspoon preme Court in SALAZAR, Appellant, Joe C. the supra, its as arbiter of role “fell imposed, appellant’s jury ment Texas, Appellee. STATE of impartiality to of that woefully short” No. and the Sixth which he was entitled under but, the as to Fourteenth Amendments Appeals of Court Criminal Texas. issue, guilt respect bias with or innocence Oct. appellant’s guilt is not shown. provides sep The Texas Statute proper before hearing punishment
arate provides the jury
the that where and punishment
matter of is referred complete un the verdict shall not be
til jury the has rendered a verdict both and guilt
the or the defendant innocence of jury punishment when amount guilty.
finds the defendant And in mis jury agree, fail
event the shall discharged jury
trial declared, shall jeopardy Art. 37.07 no attach.
V.A.C.C.P.2 provides
Our statute Court of judg- Appeals
Criminal affirm the below, may
ment reverse court or trial, re-
and remand for new or case, may
verse and reform dismiss as the judgment correct law may require.
nature 44.24 of the case
V.A.C.C.P.
Also, provides: Art. 44.29 V.A.C.C.P. Appeals
“Where Court Criminal defendant, trial
awards new
cause shall as it have stood stand would granted
in case new trial had been court below.” au- that this is without follows court
thority before dif- to direct a new trial only. issue jury punishment
ferent on the the Su- the decisions of obedience to Fairweather, Amarillo, W. Charles States and preme Court of court appointment, compliance procedural with the statutes Texas, Compton, the affirm- Gene the mandate issued Atty., Former Dist. Tom Curtis, recalled and Atty., ance this conviction is Dist. Hinton, Michael Asst. J. Atty., Dist. Amarillo, of conviction is reversed Douglas, Leon B. Atty., Austin, for a trial. State’s cause is remanded new for the State. pro- punishment 2. Prior to the 1965 Code the statute shall assess the in all eases plea guilty the absolutely if the where vided same is fixed jury particular penalty.” ei- find that is “they must the defendant law some “guilty” guilty” (1925). “not ther C.C.P. *2 any purpose for the OPINION criminal case any impeaching person a witness un- DICE, Judge. indictment, in- less on trial under final complaint formation a conviction rape; The is conviction for * * has resulted ment, fifty years. that concedes The state Appellant’s ground is that sole of error not was question in the to referred failing grant the court in erred to his 8, 1968, the January on final conviction motion for a after mistrial he asked was that trial,1 insists but date of by jury’s presence state’s in if counsel of the asking the mere the record under felony he had been convicted of certain ap- to obviously harmful not question was offense—which at the time not a final was error. pellant and therefore conviction, this appeal then on to being court. have been question should While the provisions of by virtue of the asked cross-examination, testifying on While do not we 38.29, supra, under record question and appellant was asked the perceive reversible transpired: following and not question withdrawn Salazar, that “Q it a fact Mr. isn’t distinguishes this fact answered—which you have been offense convicted of State, 115 S.W. Jennings case from v. possession in firearms? of Ex-convict 333, 587, State, 117 Tex.Cr.R. v. Ward I “Mr. Fairweather: State, 1024, 137 Ringer v. 36 S.W.2d bench, question (low at tones court’s 654, 242, cited Tex.Cr.R. S.W.2d — reporter ma- recording inaudible chine.) 105, State, v. 159 Tex.Cr.R. Garza Slough: “Mr. I will withdraw 575, State, S.W.2d and Cohron Tex.Cr. by ap App., 413 cited also S.W.2d pellant, in af which the convictions were question “The Court: The with- is firmed, controlling. are not here drawn. question, ap- Prior to the asking of my make I will Fairweather: “Mr. pellant testified, had objection, without mistrial. motion for a felony three other for the convictions of- will over- The Court “The Court: rape, robbery assault, fenses rule it.” rape, assault with intent to for he which had served penitentiary. terms in the ques- asking in Appellant insists 38.29, Vernon’s tion state violated With such admission before the part, as Ann.C.C.P., provides, in which asking question obviously mere follows: could not appellant have been harmful to does call reversal of the in a crim- “The fact that defendant conviction. case, case, in
inal a criminal or witness indictment, been, charged by is or has be that under the should observed provisions of Art. our the com- 44.23 of Code of complaint, with information or Procedure, is crim- Criminal this court under against mission of an offense duty in ac- State, appeals determine criminal inal laws this regard rights tions “with due States, not be other State shall parties and proper justice, administration of the trial of admissible evidence on in 24, 1968, January Salazar affirmed this court on of conviction was State, 423 S.W.2d pressed 38.29, V.A.C.C.P., Article or reversal of a will no affirmance easily question mere thwarted. If a in viola- technicalities determined * * *» tion statute of such answered objection, appeal without this Court A reversal of conviction appears. would hold that no error If asking question a mere would be on question is asked and defendant technicality, another trial with *3 presence forced to appel- having become final prosecutor then withdraw such lant could be question citing this (Salazar State) authority to show the absence of re- is affirmed. objection versible error. Forcing such presence the jury’s only helpful could ONION, Judge (concurring). prosecution and harmful to the ac- fact, cused. objection be more I concur in the result reached. harmful to the than accused answer here error clearly recognized but held explanation extracted from defend- go I would further ant imagine stand. IWhile cannot and limit holding here the facts prosecutor deliberately following presented.
procedure faith, unless bad acting in it Otherwise, able counsel should be made clear that this case is not pointed out, has legislative authority intent ex- for him to do so.