¶1dissenting.
¶2I respectfully dissent.
¶3Appellant correctly asserts reversible error in his fourth point of error.
¶4To illustrate clearly why the error is reversible, it is necessary to reiterate the pertinent exchange already recognized by the majority.
[MR. STEVENS-APPELLANT’S COUNSEL]
You took an oath. It's in the Charge. And you’ll read the Charge. And when you go back there, when you first go back to deliberate, sit down and read the Charge very carefully. And think about it. Because you’ll see the words: reasonable doubt.
As we said originally, the State has the burden of proof beyond a reasonable doubt.
You’ll see in there, Judge Butler tells you that Ernest Dominguez is presumed to be innocent.
So right now before you deliberate that presumption exists. And you have to go back there and decide whether the State has removed all reasonable doubt—
MR. LUITJEN [Prosecutor]: Objection, Your Honor.
MR. STEVENS: —about the elements of the offense.
MR. LUITJEN: The presumption has already been destroyed. It does not exist at the time that they go into that jury room. They can make their mind up any time during this trial.
THE COURT: I’m going to sustain the objection. Just disregard what Mr. Stevens said about that the presumption still exists. Just disregard that.
MR. STEVENS: On page five it says all persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.
So when you go back to the jury room, please read that. Please read the whole Charge.
¶5Although the majority has chosen to treat the court’s ruling and gratuitous instruction as simply a comment on the weight of the evidence, the thrust of appellant’s actual complaint is otherwise. Appellant clearly and correctly characterizes the prosecutor’s objection as a misstatement of the law, improperly sustained by the court and made worse by the court’s gratuitous instruction to the jury.
¶6“In all cases the defendant is presumed to be innocent until the jury has concluded his guilt from the facts of the case. This obtains during the argument of counsel with as much force as when he is being arraigned.” McGrew v. State, 140 Tex.Cr.R. 77, 143 S.W.2d 946 (1940).
¶7In objecting, the prosecutor not only misstated the law, but told the jury he had already overcome the presumption of innocence. The trial court not only committed error in sustaining the objection of the prosecutor, but went further and gratuitously instructed the jury to disregard appellant’s contention that his “presumption still exists.” In so doing, the court not only undermined his own charge, but inad-vertantly created the appearance to the jury that he agreed with the prosecutor that the presumption of innocence had already been overcome.
¶8The majority recognizes error was committed, but condones it as waived because no objection was made to the court’s ruling. However, the majority fails to recognize that the improper objection was made by the State, and the erroneous ruling by the court. No requirement exists for an appellant to incur the wrath of a trial court by arguing with a ruling which has already been made.
¶9While I agree that comments on the weight of the evidence can be waived when *191not objected to, this is not the central issue here. We all agree that error was committed, and we must reverse, unless we determine “beyond a reasonable doubt that the error made no contribution to the conviction or the punishment.” TEX.R.APP.P. 81(b)(2). When we consider the effect of the court’s erroneous ruling and instruction, it is impossible to say that the error, beyond a reasonable doubt, made no contribution to the conviction or punishment.
¶10I would reverse the judgment, and remand for a new trial.