A.D. Roberson v. State

MORROW, Presiding Judge. Robbery with firearms is the offense; penalty assessed at confinement in the penitentiary for five years. The statement of facts on file with the record does not bear the signature of the judge who tried the case. However, accompanying the record is the affidavit of the trial judge to the effect that the statement of facts was prepared within the time required by law and filed with the clerk of the court; that it was the intention of the judge to sign and approve the statement of facts, but through some oversight he failed to do so. On the subject, we quote from Tex. Jur., Vol. 4, p. 420, sec. 287: “As a general rule, a statement of facts which is not approved and signed by the judge will not be considered on appeal, a certificate of the stenographer alone being insufficient. A statement will be considered though it is not approved or signed where the judge certifies that he intended to approve it and thought and believed that he had done so until his attention was called to the matter, and that the omission was due to oversight.” Therefore, the statement of facts in the present instance will be considered in connection with the record. The State’s theory, based upon the testimony of Mrs. Churchwell and Mrs. Jordan, is to the effect that they were *62 robbed of certain diamond rings; that the appellant was present at the robbery and that he was a principal in the commission of the offense. Appellant claimed that as he and a companion were riding in an automobile together with Mrs. Churchwell and Mrs. Jordan, they were all held up and the two women were robbed of their diamond rings. It is the State’s theory that the appellant was a particeps criminis in that he had conspired with the robbers to aid them in the commission of the offense. This theory was combatted by appellant upon the claim that he was entirely free of any criminal act or intent. There are five bills of exception in the record, all of them carrying the complaint that there was improper argument on the part of the State’s Attorney. In Bill of Exception No. 2 the statement is made that the County Attorney, in his closing argument, used the following language: “That Tommie Smelker is roaming the streets of Kaufman free right now, and that you know that Tommie Smelker was present at the time of the robbery.” According to Bill No. 3, the County Attorney made the following argument to the jury: “This defendant is a menace to the society and county and I know that you are going to say, ‘Now, young man, you have done enough in this county, and we are going to send you down yonder.’ ” Bill No. 4 complains of the following argument of the Assistant County Attorney: “That you (meaning defendant) took the distributor cap or knew it was taken off the car so that it would not run.” In each of the bills of exception the trial court certifies that the argument made was with reference to a matter not in evidence and was inflammatory and prejudicial to the rights of the appellant. Moreover, it is shown in said bills that appellant timely and properly objected to the argument. In view of the record, we are constrained to hold that reversible error is presented. Therefore, the judgment is reversed and the cause remanded. Reversed and remanded.