The opinion
WOODLEY, Presiding Judge
(dissenting).
This conviction is set aside, in part at least, upon the erroneous conclusion that the trial court has certified as a fact that the remarks of the assistant district attorney, Eddie Davis, set out in the majority opinion and in Formal Bill of Exception No. 9, were prejudicial and highly inflammatory; were outside the record and that such argument “as well as numerous other personal vilifications and abuse of defendant’s counsel with which the record is replete, shows peradventure of a doubt that the defendant suffered irreparable damage and injury which could not be lessened or mitigated by the Court’s rulings.”
It should be apparent that had the trial judge entertained such view of the argument he should and no doubt would have declared a mistrial or granted a new trial.
It should also be apparent from the trial judge’s certificate quoted in the majority opinion that he refused to certify that such were facts and certified that such were only contentions of the defendant.
The majority opinion is in error in concluding that the trial judge’s approval of the bill with qualifications was tantamount to no action at all, and is also in error in assuming that Art. 760d V.A.C.C.P. has been or may be construed as authorizing or requiring that Bill of Exception No. 9 be treated as approved without qualification.
Bill No. 9 was presented to the trial judge and approved with qualifications in a manner authorized by Art. 667 V.A.C.C.P. and the applicable Rules of Civil Procedure. It was filed with the clerk as so qualified and there was no exception to the qualification.
The only portion of Art. 760d V.A.C.C.P. which has any bearing on a bill of exception presented to and approved by the trial judge with qualifications to which there was no exception, is the last paragraph which reads:
“Nothing in this Act shall prevent the defendant and the trial judge from agreeing upon or to the correctness of the bill of exception and the filing thereof in the trial court within ninety days from the date notice of appeal was given. Such a bill of exception shall be considered as approved by the trial judge.”
Bill of Exception No. 9 may not be treated as approved without qualification, but must be considered as qualified by the trial judge under the following authorities :
The trial court’s qualification of a bill of exception becomes a part of it. Townsley v. State, 103 Tex.Cr.R. 508 , 281 S.W. 1054 .
*630 The appellate court will presume qualifications in duly certified bill of exception were made with the consent of the defendant or his counsel unless the contrary appears over the certificate of the trial judge. Ray v. State, 116 Tex.Cr.R. 575 , 28 S.W.2d 1084 ; Blackshear v. State, 137 Tex.Cr.R. 264 , 128 S.W.2d 1205 .
To warrant appellate court in rejecting matters contained in qualifications to bill of exception there must have been an exception taken thereto, Jenkins v. State, 118 Tex.Cr.R. 556 , 40 S.W.2d 109 .
When bill of exception is accepted with qualifications thereto, without objection, appellant impliedly admits truthfulness of such qualifications. Court of Criminal Appeals is bound by qualifications to bill of exception which have not been objected to. Chandler v. State, 103 Tex.Cr.R. 311 , 280 S.W. 817 .
When the defendant accepts and files a qualified bill, he is bound by the qualification which will not only be accepted by the appellate court as correct but will also control insofar as it is in conflict with the bill prepared by the defendant. Clarich v. State, 137 Tex.Cr.R. 282 , 129 S.W.2d 291 .
The appellate court will not entertain a motion to strike from a bill qualifications and explanations. 5 Tex.Jur.2d 298, Sec. 181; Blain v. State, 34 Tex.Cr.R. 448 , 31 S.W. 368 ; Pool v. State, 48 Tex.Cr.R. 478 , 88 S.W. 350 .
The court may qualify a bill by stating that he does not certify the truthfulness or correctness of the grounds of exception set out therein. Briscoe v. State, 37 Tex.Cr.R. 464 , 36 S.W. 281 .
Belcher v. State, 96 Tex.Cr.R. 561 , 258 S.W. 815 , where the judge endorsed on the bill: “The court does not certify that the above proceedings were had, nor does the court certify that any of the matters alleged therein are true, nor that there was any basis for supposing them to be true.” The bill was considered as so qualified over the defendant’s insistance that a trial judge cannot approve a bill in such manner as to destroy it.
I respectfully dissent.