¶1(dissenting).
¶2The “explicit objections” referred to in the majority opinion are set out in paragraph 6 of the appellant’s objections to the court’s charge filed November 7, 1967, at 12:33 P.M.
“Defendant objects to the failure of the court’s charge to instruct the jury that the State is bound by the exculpatory testimony of the defendant in the Bird trial introduced by the State in evidence in this trial and to instruct the jury that the exculpatory testimony must be beyond a reasonable doubt disproved by the State and that the jury cannot look to the testimony of the accomplice for disproof of the testimony of the Defendant and at the same time corroborate testimony of the accomplice or any portion thereof with the exculpatory testimony of the defendant.”
¶3The ground of error sustained by the majority is not before us. If so, it is without merit.
¶4The record does not reflect that the objections in writing were presented to or acted upon by the trial judge unless it be the docket entry: “11-7-67 Objections noted and overruled.”
¶5According to the clerk’s file marks thereon the charge of the court, the written objections to the charge, the verdict of guilty, the charge on the issue of punishment and the verdict on punishment were all filed with the clerk at the same time.
¶6I do not find in the reproduced testimony of appellant where “he said that he had not participated in the taking of the safe.”
¶7Wormley v. State, Tex.Cr.App., 366 S.W.2d 565, cited by appellant, points out that a confession may be completely exculpatory as to the offense of burglary but inculpatory as to theft of property taken from the burglarized premises.
¶8As I read the portion of appellant’s prior testimony introduced by the state, it is not exculpatory insofar as the theft of the safe is concerned. If so it was nothing more than a denial of guilt and cast no additional burden on the state.
¶9If, as appellant contends, his testimony at Bird’s trial was all exculpatory it was not necessary that the court charge the jury that the state is bound thereby. Trevenio v. State, 48 Tex.Cr.R. 207, 87 S.W. 1162; Anderson v. State, 71 Tex.Cr.R. 27, 159 S.W. 847; Dixon v. State, 128 Tex.Cr.R. 584, 83 S.W.2d 328; 1 Branch’s Ann.P.C.2d 104, Sec. 95.
¶10I respectfully dissent.