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626 S.W.2d 117

Briones v. State

Court of Appeals of Texas

Decided November 30, 1981

Court of Appeals of Texas · decided 1981-11-30

Cited by 1 later decisions — most recently October 1985

1 state decisions

Relies on Campos v. State · Green v. State · Hobbs v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1981-11-30

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¶1OPINION

BISSETT, Justice.

¶2This is an appeal from a conviction for attempted rape. Defendant brings forward two grounds of error. The first is that a prospective juror was questioned on voir dire outside the presence of the defendant.

¶3This Court is allowed to review only those matters which appear in the *118record. Williams v. State, 485 S.W.2d 274, 275 (Tex.Crim.App.1972); Hobbs v. State, 433 S.W.2d 700 (Tex.Crim.App.1968). There is nothing in the record to indicate defendant was absent during any part of the voir dire.

¶4Tex.Code Crim.Pro.Ann. § 33.03 (Supp. 1980-1981), in pertinent part, provides:

“. . . When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial.... ”

¶5See Green v. State, 510 S.W.2d 919 (Tex. Crim.App.1974). There being no evidence in the record to the contrary, defendant’s first ground cannot be sustained.

¶6Defendant’s second ground of error is that the prosecutor committed reversible error by referring to the fact that the defendant could testify for himself. The complained of comment occurred during the cross-examination of the investigating police officer by defense counsel:

“BY MR. LONGORIA (Defense Counsel):
Q: In fact, he told you he was in a fight on 18th Street, didn’t he?
A: He pointed towards 18th Street.
Q: Did he tell you that?
MR. RAMIREZ (Prosecutor): I will object to that, Your Honor. That is all hearsay. The defendant can testify for himself. It is all hearsay as to what the defendant said to him.
MR. LONGORIA: Your Honor, he is on cross-examination and I have a right to ask these questions.
THE COURT: Go ahead.”

¶7Defense counsel made no objection to the prosecutor’s comment. It is settled that where no objection was made to comments concerning the defendant’s right or failure to testify, nothing is preserved for review. Campos v. State, 589 S.W.2d 424 (Tex.Cr.App.1979). No objection to the comment was made at the trial and, thus, no issue is presented to this Court for appellate review. Moreover, defendant testified on his own behalf,' which rendered any error, if any, harmless. Defendant’s second ground of error is without merit.

¶8We have carefully considered all of defendant’s grounds of error. They are all overruled.

¶9The judgment of the trial court is AFFIRMED.

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