*1 material, or ma- of line not come under classification border containing excerpt”, terial magazine merely an obscene nor “isolated does magazine
depict of nude females. All statute, prohibited devoted to matters and shows “engaged publishing distributing those com- it were in the exploitation craving mercial of for the morbid and shameful (Quote prurient materials effect.” Chief War- from Justice U.S., majority opinion.) ren Roth vs. cited very This is the conduct which legislature of this state has, wisdom, in its made unlawful the enactment of Art. 527 V.A.P.C. jury charge, Under the court’s re- order to convict was beyond quired to find a reasonable doubt that had
knowledge magazine of the contents of the and that dis- she purpose corrupting tributed it depraving “for average person.” failing If there was error in to instruct jury magazine that the contents of the were to be considered as by present day man, a whole and average given, standards of the error, charge in view of the evidence was harm- ground less for reversal. Art. 666 C.C.P. agree I do not authority say would have had possession magazine of such a for sale be- was lawful practically its cause contents “have contemporary become litera- Houston”, City for suggests. ture as counsel Even the wit- magazine
nesses the defense admitted that “trash.”
Felo Scott v. State 32,404.
No. November
WOODLEY, Judge, concurred.
DAVIDSON, Judge, dissented. Knight, appellant.;
Jack Houston W. Walton, Attorney, Dally, Leé P. Dan District Carl E. F. Attorney, Douglas, Ward, State’s Assistants District and Leon Austin, Attorney, for the state.
MORRISON, Presiding Judge. years. murder; punishment,
The offense drinking es- Appellant a and one Jackson were told leave they a arguing; shot tablishment soon thereafter because were deceased, lying pool LaBome, was found fired and was blood. he Hruzek, investigated killing, testified that
Officer who weapon he had used appellant’s went to home asked for “I said, shooting; appellant got in it a drawer and from shown It was meant but I Poncho instead.” to shoot Jackson shot gave weapon appellant officer was the weapon which fatal which fired the bullet. behalf, testify in his but called his
Appellant did- not own appellant approaching brother, was testified Jackson who which at time fired the shot knife in his hand a Jackson. Poncho LaBome instead of somehow hit no such called in rebuttal and testified that Hruzek was Officer vicinity occasion person on the appellant’s brother was question. by appel- a written was made It shown that confession it in day, to offer evi- lant not elect later that but state did dence.
- sufficiency support conviction is not of the evidence question presented by the brief relates challenged, the sole during argu- prosecutor made and statements quote entire appellant’s counsel. We transaction ment of error: appellant contends reflects which * * * (MR. KNIGHT) : we COUNSEL de- “APPELLANT’S veloped witnesses, question, several State’s officers signed confession, this Defendant a so-called confession re- property Texas, Attorney’s mains the of the State of District De- partment, they haven’t chosen introduce that evi- * * * dence . (Prosecutor) Knight “MR. WARD : If Mr. it wants intro- duced, we will allow him to it at introduce this time as a Defense exhibit, Your Honor. May please “MR. Court, KNIGHT: it we move for mis- comment, trial on the challenging basis Counsel’s the Defend- ant to introduce the statement when is the State’s confession they taken from him in which have not introduced. *3 Well, Jury “THE disregard COURT: will the State’s
comment, and reply. the answer and the “MR. Exception ruling, KNIGHT: to the Court’s Your Hon- or.
“THE COURT: Yes sir. any rate, they “MR. KNIGHT At CONTINUES: now are hollering they for us to introduce what took their skilled Department, intending day Jury present Police some to to a down they it, you Jury here go but didn’t do and will back this room trying to decide this man’s fate without the benefit confes- gave minutes, most, sion that he within or hours at the after this every they happened, and down there where had favorable means you your Now, up to take his confession. can make mind what confession, say they that I have been done with and that should they put suppressing you evidence when fail to are * * *. and Honor, going Your if “MR. WARD: the Defendant to con- going object it, right I to I feel tinue am to and that we do have a him it under the law. to allow to offer again object
“MR. KNIGHT: We once to the remarks of the Attorney, please, if the Court and move for District for the reason that we are a mistrial proper line of and Attorney challenging now is the Defendant District to introduce having taken the State without confession even examined it, move Court for that reason we mistrial because Attorney’s harm of the prejudice of the District remarks. Jury disregard the District right, will “THE COURT: All Counsel, any please, do Attorney’s purpose, both remarks for testify. gentlemen.” proceed, Let’s by the apparent foregoing offer made It is from the by appellant’s coun- prosecutor reply made was in to statements not reversible error. sel and therefore 88, State, Rep. upon Reliance is had Howard v. 147 Tex. Cr. controlling 691, be- not find the same here 2d but we do 178 S.W. was tantamount in that case the offer to call the witness cause the saying fact prosecutor would affirm the such witness dancing Mexican woman within accused was out with a days wife, his while in the case at bar after the death of five con- no allusion to what was prosecutor made the offer of the merely oppos- tendered the same to but in the confession tained failure to had commented on state’s ing after counsel introduce the same. 386, 240, Rep. 2d coun- State, 136 Tex. Cr. S.W. In Nix v. why argument posed question accused his
sel for the testify. In brought a certain witness had not the State they bring in would the witness reply, prosecutor said that reply to have the accused. This court held such tender him by argument counsel. of defense invited been Ed., 383, P.C., p. 403; Ann. 2nd Gas also 1 Branch’s Sec. See 152, Rep. Rep. Tex. 46 S. State, 119 Cr. Cr. kin v. Tex. *4 175, State, Rep. 2d 957; v. 141 Tex. 147 S.W. Johnson Cr. 2dW. 137; 312, State, Rep. Cr. 220 2d 153 Tex. S.W. 811; Ross v. 262; 81, Mus State, Rep. 289 S. W. 2d 163 Tex. Cr. Andrews v. 882, State, 2d cases there cited. ser v. S.W. support the
Finding conviction the evidence sufficient to is judgment of the trial court appearing, reversible error no affirmed.
WOODLEY, Judge, (concurring). complained con- of because I affirm the conviction would attorney presented is not to this court for prosecuting of duct by any law. manner authorized review appears in the record. exception of No bill 759a, 2c, V.A.C.C.P., as solely upon Art. Sec. Appellant relies provides: “In like as herein amended in which manner Section, may provided in the in this the defendant reserve State- objection by Facts, Exception, informal of to ment of or Bill testimony, argument counsel, to or motion withdraw of State’s ruling during the trial of the case.” of the trial court made attorney is complained prosecuting The of conduct of by only agreed transcript for shown which to counsel is containing full, cor- the state “a true and defendant and for by arguments transcript of of the to the both rect all num- upon the trial of above and defense counsel had state * * * styled bered and cause .” majority transcript A of this court has held that such a of arguments purview providing within comes of Section 2c objection argument may of counsel reserved state’s be facts, judge approval the statement of required. and the of is not the trial State, Rep. Kinnebrew v. 167 Tex. Cr. 2d See S.W. 544.
It complained does that the here of is before not follow error us review. complained of remarks occur did not dur-
ing argument counsel, of state’s but while defense counsel was addressing jury, hence come does not within 2c Section re- argument lating “objection Objections of state’s counsel.” conduct of interrup- remarks and counsel for the state argument among for the defense tion are not may by objections preserved be informal under bill Art. especially attempted This is where V.A.C.C.P. so to be re- 759a served in a statement of transcript argument of evidence or other than the jury. the trial facts on If ruling it be contended error court’s on the inter- during may ruption transcript be raised of the arguments showing interruption, such remarks of coun- therewith, for the in connection sel state the record before us present claim of true, does such error. This is first because agreement there no certification the court or of counsel that objection matters occurred or that the court was made or that *5 thereon, only ruled rulings second because the transcript judge shows trial made were his instructions jury disregard matter. If complained of conduct of counsel for the state is before review, upon it improper
us was and cannot be excused theory by argument it was invited of defense interrupted. which it right upon
Counsel for the comment defendant had the state’s failure to introduce a statement which the evidence shortly killing. showed had been made after the It was evidence state, available to the but not to the defense. Counsel for statement, state did not offer to introduce the but to “allow” it to be introduced as a defendant’s exhibit. interruption repeated was after the in- had been disregard Appellant sought
structed to the comment. thereafter opportunity the fendant to have the statement or confession of de- part appeal,
made a of the record on but it denied was him.
DAVIDSON, Judge, (dissenting). My agree brethren that this case should be affirmed. Morrison, Presiding Judge, predicates upon his conclusion proposition replying that the conduct of state’s counsel in appellant’s statements of counsel was attributable to such state- ments, and therefore did not constitute reversible error.
Woodley, Judge, concludes the misconduct of state’s counsel, although error, reversible is not before this court for de- termination. agree my
I do not with the conclusion of either of brethren. I question by am convinced that the of misconduct state’s counsel properly this court and that reversible error is reflect- by ed this record. Woodley, by Judge, complained-of suggested
As theory improper upon and cannot be excused “was counsel which it inter- invited of defense was rupted.” twenty ought go penitentiary for This not to to the years trial, upon as found when an error was committed his judges this court. two
I dissent.