# Porter v. State

> Court of Criminal Appeals of Texas · June 21, 1944 · 147 Tex. Crim. 646

URL: https://www.frixlaw.com/law-library/cases/3983751

## Case

- **Full name:** Alvin Porter v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 21, 1944
- **Citations:** 147 Tex. Crim. 646; 183 S.W.2d 164; 1944 Tex. Crim. App. LEXIS 1072
- **Precedential status:** Published
- **Opinion:** Addendum by Graves
- **Judges:** Hawkins, Graves
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

*649
ON MOTION FOR REHEARING.
GRAVES, Judge.
In so far as bill No. 5 is concerned, we find that appellant’s attorneys presented to the court their bill No. 5, omitting formal parts, as follows:
“Be it remembered that on the trial of the above styled and numbered cause the assistant district attorney committed material error in his argument to the jury, in which he used this language: Then follows the language set forth above herein. The bill then continues:
“This argument was objected to at the time by counsel for the defendant, as it carried the imputation to the jury that the • defendant’s silence at the time of his arrest was destructive of. the truthfulness of his explanation given at the time of the trial.” Then follows that appellant made timely exception to the same, and tendered such as a bill of exception and requested that same be approved, “allowed and ordered filed as a part of the record in this cause; that.said argument was unsworn, argued facts that were not testified before the jury; it was improper, highly prejudicial, and destructive of his right of explanation of his connection with the alleged offense.”
We find this bill in the same condition as all the bills herein to this extent. Appellant’s attorneys prepared their bills of exceptions and presented same to the court, the majority of which were worded so as to have the trial court certifying in such bill that material error had been committed. The court then qualified such bills, refusing to certify error. Appellant’s attorneys then excepted to such qualification, thus requiring the court to prepare his own bill. No bystanders’ bills were presented nor filed by appellant’s attorneys, and we therefore have present bills of exceptions prepared by the trial court.
The trial court qualified such bill No. 5 as follows:
“The above and foregoing bill of exception No. 5 is signed and ordered filed by the court, but the court does not certify that the assistant district attorney committed material error in his argument to the jury, and there was no objection by counsel for the defendant on the ground set forth in the bill.”
Obviously bill of exceptions No. 5 as prepared by appellant’s attorneys and presented to the trial court called for a qualification by such court, otherwise he should have given appellant a
*650
new trial. In other respects such presented bill was inadequate to show a proper objection to the argument in that it was not therein shown that such remarks were without the record, or were not called for by some argument of opposing counsel, or that such statement was not a part of legitimate discussion of the evidence or argument of counsel. See Fuller v. State, 108 S. W. (2d) 363 ; Robinson v. State, 119 Tex. Cr. R. 467 ; McCall v. State, 131 Tex. Cr. R. 447 , 99 S. W. (2d) 302 .
The trial court’s bill, leaving out the certification as to material error, sets forth the statement of the State’s attorney,, and follows: “Whereupon counsel for the defendant objected to such argument of the assistant district attorney.” His objection being overruled, he excepted and said: “We reserve our bill.”
We think this was all that was required of the careful trial court.
Under these facts, we think appellant’s bill No. 5, as presented herein, is defective in that same does not show that the matters mentioned in the complained of argument were not in the record, and were not provoked or invited by any argument of appellant’s attorneys.
We have considered all remaining bills and find same without error.
The insufficiency of bill No. 5, as herein pointed out was not called to our attention upon the original submission hereof.
We think that the State’s motion for a rehearing should be granted, and that this judgment herein should be affirmed, and it is so ordered.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3983751. Public record. Not legal advice.