In his motion for rehearing appellant again urges that the remark made by the trial judge at the time he delivered his written charge to the jury should be held to be reversible error.
When our original opinion was prepared we were under the impression that Art. 663 Cow. C. P. obtained its present relative position under the revision of 1925. In this we were mistaken. It occurs in the revision of 1895 as Art. 720 Cow. C. P., and in the revision of 1911 as Art. 740 Cow. C. P., in both revisions occupying the same relative position as in the revision of 1925.
"Code Cr. Proc. 1895, art. 723, read as follows: 'Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall be reversed; provided, the error is excepted to at the time of the trial.' *Page 381
"It was amended by Act of 1897, p. 17, to read as follows: 'Whenever it appears by the record in any criminal action, upon appeal of the defendant, that any of the requirements of the eight preceding articles have been disregarded, the judgment shall not be reversed, unless the error appearing from the record was calculated to injure the rights of the defendant, which error shall be excepted to at the time of the trial, or on a motion for a new trial.' "
In 1913, (Acts 33d Leg., p. 278), Art. 735 Cow. C. P. (now Art. 658) was amended requiring a written charge in felony cases to be given "before argument, said charge making application of the law to the facts." At the same time Art. 743, (now Art. 666) was amended to read as set out in our original opinion. To hold that said article means that a written charge applying the law to the facts in felony cases could be omitted would be opposed to the spirit and general meaning of said Art. 658 and all the related articles in question.
The remark made by the trial judge, even had it been in a written charge, and properly and timely objected to, would not have called for a reversal in the absence of a showing that it "was calculated to injure the rights of the defendant." See Davis v. State, 107 Tex.Crim. R., 296 S.W. 605. But it is appellant's contention that the remark made was equivalent to the trial judge telling the jury that they could consider whatever they heard or saw in the court room. He then urges that something improper might have occurred or been said in the court room which the jury heard and saw which was calculated to injure appellant, and, therefore, concludes that the remark of the trial judge should be held reversible error. Of course, anything might have happened in the court room, or anythingmight have been said, but appellant makes no claim that such a thing did occur or was said. It appears to us that appellant is asking this court to assume that something was said or done in the court room which might have injured him from the mere fact of the trial judge's oral statement. The burden is on appellant to point out a possible injury. See many cases listed in Note 21 under present Art. 666, Vernon's Tex. C. C. P., Vol. 2.
The remark of the trial judge can not be regarded as an instruction applying the law to the facts in the case such as is contemplated in Art. 658 Cow. C. P., but as an admonition or *Page 382 warning to the jury. We are unable to attribute to it the serious character insisted upon by appellant.
Other matters urged in the motion for rehearing have not been overlooked. They were considered, and we think properly disposed of in our original opinion.
The motion for rehearing is overruled.