Sikes v. State
500 S.W.2d 650
Tex. Crim. App.
1973
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*1 Sсruggs. Prior to by not written the effective date Code 1966, it was not

Criminal Procedure in

necessary that defendant or his attor-

ney sign by jury. a written waiver of trial that the waiver be made was sufficient open by pеrson

in in court the defendant court,

with the consent

written, signed, approval and consent attorney ‍‌‌​​​‌‌‌​​‌​‌​​​​‌​‌​​​​​​​​​‌​‌‌‌‌‌‌​​​‌​​‌​‌​​‍representing the State. Arti- 10a, V.A.C.C.P.,

cle Acts 1931. fact that the waivers of filed papers specified of the causes that O.

Scruggs defendant’s is evi- by

dence to be considered the trial court

passing by of fact made appellant. Harvey

supra. us, the evidence of

On the record felony

appellant’s ten final convictions for by properly admitted

offenses 1953 was court, impeach guilt ‍‌‌​​​‌‌‌​​‌​‌​​​​‌​‌​​​​​​​​​‌​‌‌‌‌‌‌​​​‌​​‌​‌​​‍stage for punishment purposes,

ment and on the record.2

stage as a of his criminal

Opinion approved by the Court. Abilene, Chappell, for

Robert G. lant. SIKES, Appellant,

James Richard Eastland, Emory C. Atty., and Robert Austin, for Huttash, A. Asst. State’s Texas, Appellee. STATE the State. of Criminal Court 1973. DOUGLAS, Judge.

Rehearing Denied Nov. appeal from a conviction

This is an assault. offense fifty years. punishment at jury assessed twenty-one brief, Appellant’s containing filed error, timely was not grounds of 17,1973. 47,485, Octоber No. 2. See White

651 been identified as involved and the provisions of Article accordance was entitled to each of know 40.09, Ann.C.C.P. Vеrnon’s asked, played. the six Then the court have examined justice, we interest participant Rising she a “Was Star two ‍‌‌​​​‌‌‌​​‌​‌​​​​‌​‌​​​​​​​​​‌​‌‌‌‌‌‌​​​‌​​‌​‌​​‍allegations and find his jоb?” attorney, the district He be discussed. replied objection, evi- without that she was. weight of the court commented stated, overruling an The court then “Proceed.” erred in and the court dence objection to the

tor. Appellant contends that the above question judge the trial consti affirm.

We tutes error because it reversible was sufficiency of the evidence weight comment on the of the evidenсe. argues implied He the trial judge accepted as true the appellant alleged that The indictment Johnny Williams. was Rutherford robbed Rutherford. Bank of president the First ais well settled rule of this Court that Merl and Rising Thomas Star. Jenkins there must be an to a comment pistols, entered Sоrmrude, armed with weight of the evidence for it to be office. to Rutherford’s bank and went State, for review. Adams 165 v. officers, Rutherford, other They ushered 523, objec- Tex.Cr.R. 309 S.W.2d 245. No back employees and customers question objec- tion to the was An made. kept guard while room where Jenkins urged opportunity. tion must be at the first cages through the tellers’ went Sormrude State, Tex.Cr.App., Satillan 470 S.W.2d $9,262.00. and took attempt 677. Nor does to counsel show that he did not have time obj to ect. Johnny that he had testified Williams Only after Mr. Walton answered the played in a band in which was object. court’s did counsel One until he went (Williams) leader may objectionable question allow to related that when he armed services. Hе speculate be asked and as to its mentioning answer. received a letter from Sikes State, 583, Bell v. 160 272 large big plans he went Tex.Cr.R. S.W. money sums of 888; State, 2d Stone v. Tex.Cr.R. and robbed a bank Nashville 89 “AWOL” timely objection 818. Absent a or Upon upon the instruction of Sikes. a showing appellant оp He not have objection, testimony was this portunity object at the time the evidence the leader testified that also offered, ground his of error must be planning Rising robbery and that Star State, Sikes, Brazzell Tomlinson, overruled. ‍‌‌​​​‌‌‌​​‌​‌​​​​‌​‌​​​​​​​​​‌​‌‌‌‌‌‌​​​‌​​‌​‌​​‍Patsy Mary Legg, Jen- 130; 481 S.W.2d Hendrix v. Tex. kins, Dwayne in- and he were Sormrude Cr.App., 230; 474 S.W.2d Brown v. they also related that had volved. He 925; Tex.Cr.App., 460 S.W.2d He at another bank before. looked Tex.Jur. 2d, 39, page 61. one, said, Section and he then asked which “Gus- jury not to The court tine.” instructed 38.05,V.A.C.C.P.,provides: Article re- further consider the last answer. He they after the went lated that upon admissibility ruling “In designated to hide the place “we had shall or not discuss then asked what car.” Williams comment of the same or ob- Patsy Legg’s role. case, simply bearing in the but shall its jected. admissible; decide not it is whether or he, any stage proceed- nor shall at attorney district answered counsel’s verdict, people ing six had objection by stating previous the return of make remark convey calculated to reversible argues error. He that such a his improper case.” statement is because district was allowed to applicable Vasquez taken from final argument. into his 163 Tex.Cr.R. 288 S.W.2d 108,is as follows: The record shows that Mr. made Walton *3 the statement following his summation of “. . every . . Not comment of prefaced the complained evidence. He the

the requires trial reversal. following: of statement the dеpends Whether is called reversal consequences “Now, probably which thing, one other what I’ve said you result therefrom. . Chappel what Mr. (the lant’s attorney) you said to is analy- our “The test is whether the remarks are sis, way we look at it. It’s not testi- upon the weight of the evidenсe or indi- mony, just position.” it’s our (Emphasis opinion cate jury judge’s to the of supplied) merits, and whether remarks This shows that his statement an anal- рrejudicial were to the defendant’s ysis of the evidence and awas reasonable rights.” deduction therefrom. In order to constitute rеversible error Further, complained statement be found to have must was followed Walton’s he reason been beneficial to the оr harmful to thought guilty, “(a)nd Mr. Sikes was I’ll appellant. Garcia v. you tell I think why that. I think we have question by the court 427 S.W.2d 897. proved you beyond that a reasonаble a neither comment on doubt—.” Cf. 105 Tex. Walker v. appellant’s guilt as the evidence nor was Cr.R. where new mat- expression opinion by thе court. inj argument. ters were ected in the Apparently it for clarification was asked ruling. so that the court could make his objection After the was overruled Mr. Patsy Legg participated in the Whether think Walton stated: “I the evidence robbery not the issue. it, gentlemen ladies and shows . . .” There is no statement or indication that before the court was whether prosecutor had other he evidence that robbery. or not Sikes committed the get jury could not before the nor is there prosecutor fact ‍‌‌​​​‌‌‌​​‌​‌​​​​‌​‌​​​​​​​​​‌​‌‌‌‌‌‌​​​‌​​‌​‌​​‍that the answer jury indication to the that he hаd oth- participated showed that she in the er matters in mind he made the when nor did it benefit the not hurt Sikes statement. record reflects that such testi- State. The mony repeatedly with- argument Such did not subvert rule later had it out before the court against injection argument Appellant’s defense was alibi. purely opinion personal to the tor aside from a of the testimo- discussion everyone there knew stated ny guilty. is аccused start- the bank robbed before the trial shown, No reversible error or not ed and the issue was whether is robbery. Error, participated in the any, if was harmless. ROBERTS, Judge (concurring).

Appellant also particular Under the facts and circum- attorney Mr. Wal of the district statemеnt cause, stances involved in this I just as concur “I think old ton: the result I add constitutes reached. would be . . .” guilty as he can today’s following admonition— erosion taken as an be prosecutors their must guilt or accused’s innocence, from discussion aside

testimony. comes dan- case rule. Bald- violating

gerously close (Tex.Cr.App., S.W.2d 7

win

1973). *4 BROWN, Appellant, Lee

Ronnie Appellee. Texas,

The STATE

Court of Criminal Finstrom, Dallas, for appellant. P. Wade,

Henry Atty. and William J. Teitelbaum, Dallas, Asst. Dist. Austin, for the State.

DALLY, Commissioner. robbery; pun-

The conviction is for ishment, twenty-five imprisonment. years’ grounds of error do not require a statement sufficiency of which not