Opinion
No. 36456.
January 22, 1964. Rehearing Denied March 4, 1964.
Appeal from the Criminal District Court, Harris County, E. B. Duggan, J.
Johi W. O'Dowd, Houston (counsel on appeal only), for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for robbery by assault with a prior conviction for an offense of like character alleged for the purpose of enhancement; the punishment, life imprisonment.
No statement of facts accompanies the record. There are no formal bills of exceptions, and there are no requested charges or exceptions to the court's charge.
In his brief appellant contends that the court committed fundamental error in commenting on the weight of the evidence in its charge to the jury. He insists that the instruction that the prior conviction could not be used in considering the guilt of the appellant of the primary offense conveyed to the jury that the court believed there was evidence showing the prior conviction and the primary offense.
If it could be construed as a comment, the instruction is not contrary to the law and the facts and does not constitute fundamental error. Debth v. State, 80 Tex.Crim. R., 187 S.W. 341, 343. In the absence of an exception and a statement of facts, appellant's complaint cannot be further considered. Wyatt v. State, 140 Tex.Crim. R., 146 S.W.2d 187.
The judgment is affirmed.
Opinion approved by the Court.