Thomas v. State

533 S.W.2d 796, 1976 Tex. Crim. App. LEXIS 880

• Court: Court of Criminal Appeals of Texas
• Decided: February 25, 1976
• Docket: 51013
• Status: Published

Opinions

OPINION

ODOM, Judge.

The offense was robbery by firearms; punishment was assessed at eleven years.

In the first ground of error, appellant contends the trial court erred, under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in admitting into evidence a co-defendant’s confession that implicated the appellant.

We do not agree. Bruton v. United States, supra, stands for the proposition that it is a violation of a defendant’s Sixth Amendment right of confrontation to introduce into evidence a co-defendant’s confession inculpating the defendant, provided that the co-defendant does not testify at trial. If, however, the co-defendant does testify, then he is available for cross-examination and there is no denial of the right of confrontation. As the United States Supreme Court has held:

“[Wjhere a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.”

Nelson v. O’Neil, 402 U.S. 622, 630, 91 S.Ct. 1723, 1727, 29 L.Ed.2d 222 (1971). This is precisely what happened in the instant case. No error of constitutional import occurred by introduction of the co-defendant’s confession into evidence.

Moreover, no violation of our eviden-tiary law concerning hearsay occurred. The confession was introduced into evidence by the State after the co-defendant who allegedly made the statements therein had testified favorably to appellant and contradictory to the confession. The trial court instructed the jury that the confession, even if found by the jury to be voluntary, was not to be considered as evidence of guilt of any of the co-defendants except the maker thereof. It was not error to admit the confession into evidence, and the ground of error is overruled.

In the second ground of error, appellant contends the trial court erred in stating to the jury, immediately after having charged them upon the law of assault and battery, that “I bet I have read that a hundred times and I still don’t know what it means, but it’s a statute so I cherish it.” The record reflects no objection to the trial court’s comment. Nothing is presented for review. The ground of error is overruled.

The judgment is affirmed.