trial court's response to jury note that the witness testified "the porch light was on" was not a comment on the weight of the evidence
How later courts described this case
- trial court's response to jury note that the witness testified "the porch light was on" was not a comment on the weight of the evidence
- when party does not request a jury poll, the right is waived
Written by the judges who cited it.
The opinion
MORRISON, Judge
(concurring).
While I agree with the affirmance of this conviction, I cannot do so without specifically pointing out that the action of the trial court in answering the jury’s question was highly improper and without compliance with Arts. 36.27 and 36.28, V.A.C.C.P. I concur only because I do not think that the appellant was harmed by this action. The testimony to which the question referred was as follows:
“Q On that night the shooting occurred, were the living room lights on?
“A It was off.
“Q They were off ?
“A This is my bedroom. My bedroom light.
*399 “Q How about the porch light ?
“A Off.”
In view of the fact that Chinn’s testimony in regard to the porch light was clear, direct and unequivocal, and was the only testimony on the subject, the Court’s answer did not constitute a comment on the weight of the evidence and was not harmful to the appellant.
Finally, it is to be noted that appellant made no objection to the Court’s reply, and by failing to object, he implied to the Court that he was satisfied with the answer.
ONION, P. J., joins in this concurrence.