Campbell v. State ( 1963 )

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant’s motion for rehearing presents as the question to be decided: “Should State be permitted to offer evidence of extraneous offense in habitual case ?”

The trial judge correctly answered this question in the negative when he sustained appellant’s objection and instructed the jury not to consider such evidence.

We gave a similar answer in our opinion on original submission by our holding that proof of the extraneous offense was improper. See also Scelles v. State, 172 Tex.Cr.R. 474, 358 S.W.2d 623.

It does not follow that such evidence coming before the jury in the manner stated in our original opinion and promptly withdrawn from the jury’s consideration by the court required that the appellant’s motion for mistrial be granted, or that such improper evidence calls for reversal of the conviction.

We direct attention to the fact that the jury did not assess the punishment of life imprisonment against the appellant, hence the improper evidence cannot be said to have influenced the jury in regard to punishment.

The punishment being definitely fixed by Art. 63 P.C., there remains only the question of whether the improper evidence, promptly withdrawn, may have influenced the jury in finding the appellant guilty of the burglary for which he was on trial.

In view of the record, the contention that it did would not be tenable.

Appellant’s motion for rehearing is overruled.