Dinklage v. State , 150 Tex. Crim. 12 ( 1946 )

Appellant was assessed a penalty of nine years in the penitentiary on a charge of murder.

This is the second appeal (see Dinklage v. State, 185 S.W.2d 573). On the former conviction appellant was given a sentence of twenty-five years in the penitentiary. The facts of the case are practically the same and reference is here made to the former opinion for a statement of the case.

We are presented with three bills of exception, each complaining of the argument and manner of argument by the district attorney. Each bill, carefully drawn, refers to the record and negatives the fact that there is support found in the statement of facts for the argument, as set out in the bills. We note, however, that neither bill negatives the existence of any argument made by counsel for the defense which might have provoked or invited the argument by the district attorney. It has been consistently held by this court that such bills are deficient unless they negative the existence of all things which would have authorized the argument complained of. See Richardson v. State, 270 S.W. 854; Winslow v. State,98 S.W. 866; Gonzales v. State, 226 S.W. 405; Fowler v. State,232 S.W. 515; Clowers v. State, 171 S.W.2d 143; Fuller v. State,180 S.W.2d 361; Sanchez v. State, 181 S.W.2d 87; Taylor v. State, 184 S.W.2d 621; and France v. State,187 S.W.2d 80.

An examination of the record fails to reflect any reversible error. The judgment of the trial court is affirmed.

ON APPELLANT'S MOTION FOR REHEARING.