Dirck v. State

579 S.W.2d 198, 1979 Tex. Crim. App. LEXIS 1407

• Court: Court of Criminal Appeals of Texas
• Decided: April 18, 1979
• Docket: 54370
• Status: Published

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault. Appellant was found guilty of this offense as a lesser included offense on an indictment charging murder with malice. Punishment was assessed by the jury at a $1,000 fine and two years in jail.

In his first six grounds of error appellant contends error was committed in the instructions to the jury. Objections were dictated to the court reporter and included in the transcribed court reporter’s notes in this record, along with the testimony, jury arguments, and other trial proceedings. The transcribed court reporter’s notes of the objections were not endorsed with the Court’s ruling and official signature.

Article 36.14, V.A.C.C.P., governs the procedure for making objections to the court’s charge and presenting them on appeal. It has long required that such objections be in writing. In 1975 it was amended by adding this sentence:

“The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court, before the reading of the court’s charge to the jury, and are subsequently transcribed, endorsed with the court’s ruling and official signature, and filed with the clerk in time to be included in the transcript.” (Emphasis added.)

Appellant failed to comply with the mandatory provisions of the statute in presenting his objections for the appellate record.¹ It is not sufficient just to secure permission of the court and dictate to the court reporter objections to the charge. The subsequent steps under the quoted provision must also be followed. That was not done here. The objections present nothing for review.

In his remaining ground of error appellant contends the trial court erroneously excluded the testimony of a defense witness. The rule had been invoked (Art. 36.-03, V.A.C.C.P.) and one of appellant’s witnesses was present during some of the testimony. When the witness was called to testify, the State objected for violation of the rule, and the court sustained the objection. Appellant made his bill of exception showing what the testimony would have been. The witness would have testified to events occurring in Missouri some time before the offense, which was committed in Houston. The materiality of the excluded testimony was tangential at best.

The matter of enforcement of the rule lies in the sound discretion of the trial court. Art. 36.04, V.A.C.C.P.; Barnes v. State, Tex.Cr.App., 520 S.W.2d 401; Marshburn v. State, Tex.Cr.App., 491 S.W.2d 663; Smith v. State, Tex.Cr.App., 472 S.W.2d 121. No abuse of discretion is shown here and the ground of error is overruled.

The judgment is affirmed.

Before the Court en banc.

1 . Cf. Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App., Corpus Christi—1974), in which a similar requirement under the Texas Rules of Civil Procedure was not met.