holding that a contention on appeal that the State’s jury argument commented on a defendant’s failure to testify was forfeited because at trial the defendant objected on the ground that the argument was ―outside the record‖
How later courts described this case
- holding that a contention on appeal that the State’s jury argument commented on a defendant’s failure to testify was forfeited because at trial the defendant objected on the ground that the argument was ―outside the record‖
- stating that a district court's procedure of postponing veniremembers' service "is proper upon a request from a juror"
- objection that “the [closing] argument went outside the record” did not preserve argument that statements were “a further comment on appellant’s failure to testify”
- objection that argument went outside the record was not sufficient to preserve an appellate claim that the argument was a comment on appellant’s failure to testify
Written by the judges who cited it.
The opinion
ONION, Presiding Judge
(concurring).
I concur in the results but do not feel that the majority has properly addressed itself to the last ground of error discussed.
In a pro se brief appellant complains the trial court erred in denying his request for three additional peremptory challenges and in refusing subsequently to dismiss the jury as chosen because he had been forced to accept three persons as jurors whose names did not appear on the jury list for the week of October 14, 1974, when the trial was conducted. The record reflects that two of these jurors had been summoned for the week of October 7, 1974, and one for the week of September 30, 1974. Their jury service was postponed to the week of October 14, 1974.
Article 2120, Vernon’s Ann.C.S., as amended (Acts 1971, 62nd Leg., p. 2801, ch. 905, § 10), provides:
“The court may hear any reasonable sworn excuse of a juror, and may release him entirely or until some other day of the term; provided, however, the court shall not excuse any juror for economic reasons unless all parties of record are present and approve such excuse.”
In Lopez v. State, 437 S.W.2d 268 (Tex.Cr.App.1968), the action of the Bexar County District Courts, in compliance with Article 2120, supra, to see that jurors whose service was postponed served as jurors on another day, was commended.
It does not appear to be the thrust of appellant’s pro se brief that prospective jurors who are summoned for one week cannot serve another week if their service is validly postponed. It is his argument that Tarrant County had adopted a plan for the selection of persons for jury service with the aid of mechanical or electronic means under the provisions of Article 2100a, Vernon’s Ann. C.S. He contends that the plan adopted by the Commissioners Court, upon the recommendation of the District Judges, provides that if the service of a prospective juror is postponed from one week to another that *324 the name of such juror is required to be typed onto the list for the week to which the service was postponed, the original list having come from the computer. It is his contention that the names of the three jurors in question were not typed onto the list for the week of October 14, 1974, as required by the plan.
While this court has written on the legality of the selection of jury panels in Tarrant County by electronic means and has upheld such procedure [Martinez v. State, 507 S.W.2d 223 (Tex.Cr.App.1974), cert. den., 419 U.S. 969 , 95 S.Ct. 234 , 42 L.Ed.2d 186 ]; see also Smith v. State, 472 S.W.2d 520 (Tex.Cr.App.1971), we observe that the “plan” is not in the record before us. Even if it was and contained the requirement mentioned, we observe the October 14, 1974, jury list is not in the record before us, and it is not possible to determine if the names of the jurors in question were added thereto or not. Further, if the requirement was contained in such “plan” and in fact was not followed in this case, we cannot conclude that appellant has shown he was harmed where the jurors were not otherwise shown to be disqualified.
For the reasons stated, I concur in the result.
ROBERTS, J., joins in this concurrence.