OPINION
The offense is murder; the punishment, forty (40) years.
Aрpellant’s first ground of error relates to jury separation. The court received the jury’s verdict at about 6:00 on a Friday afternoon and then, over appellant’s objectiоn, excused the jury until Monday morning when the punishment phase of the trial began. Appellant, relying on Art. 35.23 and 37.07, Sec. 3(c), Vernon’s Ann. C.C.P., contends that the statute requires that once a case has been submitted to the jury during the guilt or innocence phase of the trial, the jury should remain sequestered until the final verdict on punishment is rendered. In Johnson v. State, Tex.Cr. App.,
Appellant next contends that the court erred in admitting evidence of extraneous offenses. In the first instance cited, the рrosecutor was questioning the arresting officer concerning the circumstances of the arrest and in the course of his response the officer stated that he told the defendant he was under arrest “on two outstanding warrants. One for murder and one for possession of heroin.”
Appellant’s objection was sustained but his motion for a mistrial overruled. The jury was instructed not to consider the answer. Statements concerning the circumstances of an arrest are admissible. Wilson v. State, Tex.Cr.App.,
In Craig v. State,
The other instance in the present case which occurred during the punishment phase involved reputation testimony of a police officer. The prosecutor asked whether the officer had occasion to converse with appellant during his time with the police. The witness began to answer, “I stopped . . . . ” At this point the appellant objected that the response alluded to an extraneous offense. The objection was overruled. It cannоt be said that the witness made a prejudicial statement; he did not have a chance. The objection was properly overruled.
Appellant’s third ground of error is that the court erred in admitting prior inconsistent statements of a witness. Shortly after the shooting, the witness, Rosendo Martinez, the operator of the lounge where the shooting took place, gаve two statements to the place concerning the incident. He did not mention the position of deceased’s hand at the time of the shooting and stated that he did not see. the shots fired. The witness was called by appellant and stated that deceased was agitated and argumentative while at the lounge, that he saw deceased with his hands in his pockets just prior to the shooting and that he saw the actual shooting. On cross-examination the witness was questioned about his prior statements.
An objection to the admissibility of the statements was overruled and the jury instructed not to consider the statements as affirmative evidence but merely to determine the credibility of the witness. The record further reflects that only one of these statements went before the jury.
A witness’ prior inconsistent statements are admissible to impeach the witness. Hollingsworth v. State,
Appellant further contends that the court’s limiting charge did not cure the defect in admitting the stаtements and cites Wall v. State, Tex.Cr.App.,
The statements were properly admitted.
Appellant’s fourth, fifth and sixth grounds of error dealing with jury argument and the charge, are not in compliance with Article 40.09, Section 9, V.A. C.C.P., because they all do not “set forth separately each ground of error” appellant raises. Several different objections to the arguments in the same ground of error cannot be considered on appeal. Rose v. State, Tex.Cr.App.,
Regarding the merits, appellant’s fourth ground objects to various portions of the prosecutor’s argument in both the guilt and innocence phase and the punishment phase. Cox v. State,
In appellant’s fifth ground of error he raises two objections to the court’s charge. First, he submits that the charge regarding the impeachment of Rosendo Martinez was improper because it was not properly limited to only certain portions and because it did not identify the witness. The charge is substantially the same as that found in 1 Branch’s Ann.P.C., Sec. 202.3. Hunter v. State,
Next, appellant objects to a portion of the punishment phase charge where the trial judge deleted the word “рunishment” so that it read:
[the penalty for] “murder with malice aforethought, is by confinement in
instead of:
[the penalty for] “murder with malice aforethought, is punishment by confinement . . . . ”
Appellant claims this deletion constitutes a comment on the weight of the evidence. This contention is without merit. Indeed, it seems likely that the judge removed the word “punishment” from the charge to avoid just the typе of objection appellant raises.
Appellant’s sixth contention is that the court erred in refusing to include several requested instructions in its charge. The requests were proрerly denied.
Last, appellant objects to admittance, over his objection, of a certified copy of prior judgment of conviction because it was not delivered to him in compliance with Article 3731a, Section 3, V.A. T.S. which states:
“Such writing shall be admissible only if the party offering it has delivered a copy thereof, or so much of it as may relate to thе controversy, to the adverse party a reasonable time before trial, unless in the opinion of the trial court the adverse party has' not been unfairly surprised by the failure to deliver such copy.”
Therefore, such a judgment, though not properly delivered is, nonetheless, admissible in the absence of ünfair surprise to defendant. Roberts v. State,
In Roberts, supra, and Goolsby, supra, decided before the 1965 Code of Criminal Procedure revision, the prior convictions were alleged in the indictment and held sufficient to put accused on nоtice that these convictions would be introduced. In Martinez, supra, and Howard, supra, counsel did not object to the introduction of the prior conviction. In Denman, supra, and Rеdd, supra, objections were properly raised under Article 3731a and, in each, the court conducted an inquiry to determine whether counsel had actual notice of the prior conviction and whether he was unfairly surprised by the introduction of the conviction.
It is difficult for members of the Court, without evidence to the contrary, to conclude that counsel and appellant did not *289 know that appellant had been previously convicted of a felony offense and assessed two (2) years confinement in the Department of Corrections. We cannot conclude appellant was so unduly surprised as to reflect error.
Finding no reversible error, the judgment is affirmed.