Wilder v. State , 1977 Tex. Crim. App. LEXIS 1263 ( 1977 )

OPINION

DOUGLAS, Judge.

This is the companion case to Andrew v. State, 558 S.W.2d 876 (Tex.Cr.App.1977). Wilder appeals from his conviction for the offense of robbery by firearms wherein the jury assessed punishment at fifty years.

Grounds of error numbers one, two, three, four and seven are identical to grounds raised and discussed in Andrew and no further discussion will be presented in this opinion. These grounds of error are here, as in Andrew, overruled.

Further, in view of our disposition of his double jeopardy allegation in Andrew, we need not discuss grounds of error numbers eight and ten.

In ground of error number five he contends that the trial court erred in admitting evidence of an extraneous offense. Officer E. R. Reynolds of the Dallas Narcotics Division testified that on the day following the instant offense he arrested appellant pursuant to a search warrant for an offense other than the one involved in the instant ease.

Appellant did not object on the grounds now raised on appeal. He did not object that the arrest was unrelated to the robbery and the assaults in the instant case. See Hoffman v. State, 514 S.W.2d 248 (Tex. Cr.App.1974).

Next he complains of the following portion of the prosecutor’s argument in an attempt to explain why the confidential informer was not produced as a witness:

“Mr. Zimmermann asked why didn’t they bring him down here. Now I’m trying to tell you and he won’t let me, because he would be dead in a minute.”

The record reflects that one of the witnesses, a victim of a gunshot wound, testified that when he turned his head to look at the robbers he was shot. Apparently the robbers did not want witnesses.

The prosecutor’s remarks were to some extent invited. The record shows that appellant’s counsel had argued as follows:

“ . . . how about the mysterious witness, the mysterious witness who saw it? Why can’t he come down here? Why can't he identify somebody? Why can’t he be brought to you? Not trying to hide anything. . . . ”

No reversible error is shown. Holloway v. State, 525 S.W.2d 165 (Tex.Cr.App.1975); Howard v. State, 505 S.W.2d 306 (Tex.Cr. App.1974).¹

In ground of error number nine appellant contends that the court’s charge is fundamentally defective because it fails to apply the law to the facts of the instant case. Specifically he complains of the court’s charge on alibi.

The court submitted the following charge as to alibi:

“You are instructed that a defense of alibi is that, if an offense was committed, as alleged, that the defendant was, at the time of the commission thereof, if any, at another and different place from that at which such offense was committed, if it was, and therefore was not and could not have been the person who committed the same, if any.

“Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the offense was committed, if any was committed, at the time of the commission thereof, if any, you will find the defendant not guilty.”

Appellant did not object to this instruction in writing as required by Article 36.14, V.A.C.C.P. Nothing is presented for review. Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976). No fundamental error is shown.

In his final ground of error, appellant complains of the prosecutor’s argument. There was no objection to the argument. Nothing is presented for review. Thompson v. State, 537 S.W.2d 732 (Tex.Cr. App.1976).

No reversible error having been shown, the judgment is affirmed.

1 . The dissent in discussing invited argument would be so generous that it would permit the State to argue what is in evidence after it has been invited to do so by the defense counsel. There would be no need for, and no cases upon, the rule of invited argument if the reasoning of the dissent were followed because it has always been the rule that the prosecutor may argue the evidence without an invitation from anyone. Then, the dissent has some idea that perhaps counsel for the defense may invite argument, but the prosecutor’s reply may not go further than what the defense might want him to say.