Byrd v. State, 40738
| Decision Date | 08 November 1967 |
| Docket Number | No. 40738,40738 |
| Citation | 421 S.W.2d 915 |
| Parties | Venida A. BYRD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Pena & McDonald, by L. Aron Pena, Edinburg, for appellant.
Oscar B. McInnis, Dist. Atty., Edinburg, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is felony embezzlement; the punishment, two years.
The indictment alleged the embezzlement of $85.19 in money from Valley Transit Co. Inc., a corporation, by appellant, its agent and bailee.
The first ground of error is that the court erred in allowing admission of evidence and allusion to the commission by defendant of other crimes and transactions.
Art. 40.09, Sec. 9, Vernon's Ann.C.C.P., requires that the defendant's brief shall set forth separately each ground of error of which defendant desires to complain on appeal.
The brief fails to point out any particular evidence or allusion, or ruling of the court in regard to same. We note, however, that the evidence as to shortages in other similar transactions relating to money collected by appellant, as station agent at the Edinburg Bus Station, appears to have been admitted without objection and was limited in the court's charge, to which there were no objections. Further, we agree with the state's contention that the evidence so limited was admissible under Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125, to show system, intent and knowledge.
The second ground is that the trial court committed material error in making comment on the weight of the evidence at various incidents of the trial. This assignment of error does not comply with the requirements of Art. 40.09, Sec. 9, supra, that the grounds of error be set forth separately.
We have examined the portion of the record indicated in connection with this ground of error and find no comment of the court to which objection was made or which violated Art. 38.05 V.A.C.C.P., which provides that the judge shall not comment upon the weight of the evidence or its bearing in the case, or make any remark calculated to convey to the jury his opinion of the case. A comment by the court not reasonably calculated to prejudice the rights of appellant is not ground for reversal. Vasquez v. State, 163 Tex.Cr.R. 16, 288 S.W.2d 100; Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245; Collins v. State, Tex.Cr.App., 376 S.W.2d 354.
The third ground of error is that the court erred in considering other charges pending against appellant in assessing punishment.
This claim of error relates to a statement by the court at the time he passed on appellant's application for probation. The jury had previously returned its verdict finding appellant guilty and, the defendant having elected to have the punishment assessed by the court, the court had assessed the minimum punishment.
We find no denial of due process of law in the court's refusal to grant probation, based in part upon other charges pending against appellant.
The fourth ground of error is that the verdict of the jury and consequent judgment of the court where contrary to the law and the evidence.
This complaint relates to the variance between the total receipts from...
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