Shelton v. State

ON APPELLANT’S MOTION FOR REHEARING.

BEAUCHAMP, Judge.

Appellant’s motion for rehearing presents two questions, both of which were considered in the original opinion. The most serious of these, which gave the court considerable concern on original submission, challenges the sufficiency of the evidence to sustain the conviction.

The chief point at issue is whether or not the evidence indicated a sufficient determination of mind to meet the requirements of law and warrant a finding of guilty of an assault with intent to rape. On this point the question is quite close, but the state’s case is aided much by the testimony of the girl who twice said that the reason appellant desisted from his efforts to have intercourse with her was because the lights of an automobile appeared nearby. The admissibility of this evidence is not challenged, and it is quite pertinent to the issues. If that be the reason for his abandoning his effort to force her to submit to him, then all question of lack of intent would be removed from the case, for his chief reliance is based on the claim that he was strong enough and could have forced the girl to submit to him, and probably would have done so if he had had such intention. Considering this evidence, together with all of the facts and circumstances of the case, it is our opinion that the finding of the jury is supported. Everything which he did was over her protest and there is no evidence that she, at any time, encouraged him in the venture. The original opinion sets this out and it need not be here repeated.

The next question which we are asked to again consider is the complaint relating to -the closing argument of the assistant district attorney, as set out in Bill of Exception No. 2. The writer might have a different view to that expressed in the original opinion if the bill presented the matter properly for consideration. We do not think it is prepared in accordance with the requirements of this court, which have been many times, and recently, fully discussed. It is incumbent upon the appellant, in preparing his bill, to incorporate into it all of those things required to show error. It has always been the holding of the court that objection to the argument of the state’s attorney must be made at the time the argument was made, and the bill must show that the argument complained of was not in *372reply to any argument made by the defense and that it was neither invited nor provoked by the argument of the defendant’s counsel. The bill in the record now before us, complaining of such argument, makes no effort whatsoever to comply with this rule. See Brown v. State, 184 S. W. (2d) 840; Texas Jurisprudence, Vol. 4, Sec. 263, under Appeal and Error — Criminal Cases, at page 396; Article 667, Vernon’s Ann. C. C. P., and cases cited under note 31.

We again conclude that the record does not show reversible error, and appellant’s motion for rehearing is overruled.