Smith v. State, 40547
Decision Date | 19 July 1967 |
Docket Number | No. 40547,40547 |
Citation | 418 S.W.2d 683 |
Parties | Charles Ray SMITH, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Don Metcalfe, James B. Zimmerman, Dallas, for appellant.
Henry Wade, Dist. Atty., Robert Stenson, John Stauffer and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is murder with malice; the punishment, 99 years.
The sufficiency of the evidence to sustain the conviction is not challenged and a recitation of the facts adduced will not be undertaken other than to assert that the defense of self-defense was interposed and was by the jury rejected. A motion for probation was made and submitted to the jury in the court's charge.
Appellant's first grounds of error relate to the court's failure to instruct the jury not to consider certain argument of the prosecutor. Appellant's counsel had argued in favor of probation and urged the jury not to take away appellant's hope for the future. In answer thereto the following occurred:
We have carefully considered the cases of Hazzard v. State, 111 Tex.Cr.R. 539, 15 S.W.2d 638, Taylor v. State, 122 Tex.Cr.R. 77, 53 S.W.2d 610, and Allison v. State, Tex.Cr.App., 248 S.W.2d 147, relied upon by appellant as well as Cox v. State, 157 Tex.Cr.R. 134, 247 S.W.2d 262, and Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527, 85 A.L.R.2d 1130, but do not find that such holdings condemn the above quoted argument. We need cite only the opinion on motion for rehearing in Threadgill v. State, 156 Tex.Cr.R. 157, 239 S.W.2d 813, as demonstrating the type of argument which this Court, though not approving, has held not to demand a reversal. See also Owens v. State, 168 Tex.Cr.R. 88, 323 S.W.2d 260; Kirk v. State, 172 Tex.Cr.R. 550, 360 S.W.2d 150; Castillo v. State, Tex.Cr.App., 362 S.W.2d 320.
If we properly understand appellant's contention it is that when the court sustained the first objection he certified that error had been committed. Such a contention is without merit.
Appellant's next ground of error relates to the failure of the trial court to submit a charge on...
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