Woerner v. State
Decision Date | 24 January 1979 |
Docket Number | No. 54175,54175 |
Citation | 576 S.W.2d 85 |
Court | Texas Court of Criminal Appeals |
Parties | James H. WOERNER, Jr., Appellant, v. The STATE of Texas, Appellee. |
Antonio G. Cantu, San Antonio, court appointed, for appellant.
Ted Butler, Dist. Atty., John A. Hrncir, Sharon S. Macrae and Susan D. Reed, Asst. Dist. Attys., San Antonio, for the State.
Before the Court en banc.
OPINION ON APPELLANT'S MOTION FOR REHEARING
Appellant was convicted by a jury of attempted burglary, under V.T.C.A. Penal Code, Secs. 15.01 and 30.02. Punishment was assessed at ten years imprisonment. An appeal followed, and this conviction was affirmed on April 5, 1978, by per curiam opinion. Appellant's motion for rehearing was granted in order that we might, in the interest of justice, consider a contention not raised upon original submission.
The record reflects that appellant was tried with his co-defendant, George F. Jones, whose conviction was subsequently reversed by this Court because of improper jury argument at the punishment phase of the trial. See Jones v. State, 564 S.W.2d 718 (Tex.Cr.App.1978). Appellant now contends that he is entitled to a reversal of his conviction because of the same argument by the prosecutor. The record reflects that the prosecutor argued:
The jury assessed the maximum punishment of ten years confinement.
As a preliminary matter, we hold that this error in the argument was sufficiently preserved for review by appellant's counsel. The two defendants were tried together, and each of the two defendants had his own counsel; Jones' attorney made the objection; when it was overruled by the trial court, appellant's counsel voiced an exception to the ruling. This was sufficient in order for appellant to "adopt" the objection as his own also. The argument by the prosecutor was directed towards Both defendants; the error was definitely called to the attention of the trial court, which is the purpose of an objection. Zillender v. State, 557 S.W.2d 515 (Tex.Cr.App.1977); Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App.1972). In stating his ground for the objection, counsel for Jones argued on behalf of Both defendants; counsel for appellant noted an exception to the court's ruling....
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