Chambers v. State

379 S.W.2d 907, 1964 Tex. Crim. App. LEXIS 1023

• Court: Court of Criminal Appeals of Texas
• Decided: June 17, 1964
• Docket: 37066
• Status: Published

Opinion

WOODLEY, Presiding Judge.

The offense is the unlawful possession of marijuana; the punishment, 7 years

No statement of facts showing the evidence adduced before the jury is found in the record and there are no formal bills of exception and no written objections relating to the court’s charge.

In his amended motion for new trial filed October 30, 1963, appellant complains of the overruling of his motion for mistrial, his complaint being that the trial judge amended his charge during the argument of appellant’s counsel and in connection therewith stated that counsel had misquoted the charge.

The record contains a statement of facts in a hearing on the amended motion held December 13, 1963, (which was more than 20 days after the amended motion was filed) and an order of the trial court dated January 3, 1964, refusing the amended motion.

The complaint regarding the amending of the charge and remarks of the court in connection with such amendment is not before us for review.

Appellant’s motion is not one of the motions included in or referred to in Art. 760e Vernon’s Ann.C.C.P. and a bill of exception was necessary. Thomas v. State, 171 Tex.Cr.R. 54, 344 S.W.2d 453.

Further, the amended motion for new trial was overruled by operation of law 20 days after it was filed, no action having been taken. Arts. 755 V.A.C.C.P.; Hart v. State, 171 Tex.Cr.R. 375, 350 S.W.2d 547.

If the matter is before us, we find no error in the court’s amending his charge in order to correctly state the law. Nowlin v. State, 76 Tex.Cr.R. 480, 175 S.W. 1070; Holt v. State, 39 Tex.Cr.R. 282, 45 S.W. 1016.

Upon the record before us and in the absence of the facts adduced before the jury, we are unable to agree with counsel’s contention that the remarks of the court were calculated to or did injure the rights of the appellant.

The judgment is affirmed.