I respectfully dissent from the majority holding on point of error two. I would sustain this point, reverse the judgment, and remand the case for a new trial.
My first disagreement is the test applied by the majority to determine if the "assumed" error by the trial court is reversible. The test is: If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. TEX.R.APP.P. 81(b)(2). See also Matthew v.State, 699 S.W.2d 310, 312 (Tex.App. — Dallas 1985, pet. ref'd). The error was not one of jury argument committed by one of the attorneys. The error was the trial court putting "the stamp of judicial approval" on a statement of the law by the State's attorney that was contrary to the jury charge.Burke v. State, 652 S.W.2d 788, 790 (Tex.Crim.App. 1983) (en banc).
My second disagreement is with the majority proposition that the defense counsel can cure such a judicial error of the trial court. The majority cites no authority for this proposition, and I know of none. In fact, authority exists to the contrary.See Cook v. State, 540 S.W.2d 708, 709-711 (Tex.Crim.App. 1976) (trial court instruction to disregard persistent misstatement of law contrary to charge did not cure error). Consequently, I would reverse the judgment and remand for a new trial. *Page 776