Johnson v. State

423 S.W.2d 318 (1968)

Carvin JOHNSON, Appellant,
v.
The STATE of Texas, Appellee.

No. 40893.

Court of Criminal Appeals of Texas.

January 31, 1968.

Paul J. Chitwood, Dallas, for appellant.

Henry Wade, Dist. Atty., John Stauffer, Al Valvoord and William S. Mason, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION ON APPELLANT'S MOTION FOR REHEARING

MORRISON, Judge.

It has now been shown that appellant's brief was filed in the trial court, but was inadvertently omitted from the record sent to this Court. Our prior opinion is withdrawn, and the following substituted in lieu thereof.

The offense is robbery with firearms; the punishment, 20 years.

Appellant's sole ground of error is that "in charging the jury as to the law of the case, the Honorable Judge (committed fundamental error) by charging that should the jury find that the defendant took property of the complaining witness with intent to appropriate the same to the use and benefit of the said complaining witness, they should find the defendant guilty."

No objections to the charge were made, and no motion in arrest of judgment was submitted.

It has been the uniform holding of this Court under Article 36.19, V.A.C.C.P. and its predecessor, Article 666, Vernon's Ann. C.C.P., that a case will not be reversed on appeal because of an error in the charge of the court to which no objection was made, unless the error was calculated to injure the rights of the defendant or unless it appears that he has not had a fair and impartial trial. Aston v. State, 120 Tex. Crim. 534, 48 S.W.2d 292; Barfield v. State, 118 Tex. Cr.R. 394, 43 S.W.2d 106; McCue v. State, 75 Tex. Crim. 137, 170 S.W. 280; Bonds v. State, 71 Tex. Crim. 408, 160 S.W. 100; and Coleman v. State, 68 Tex. Crim. 182, 150 S.W. 1177.

Appellant's motion for rehearing is overruled, and the judgment is affirmed.