Appellant also sought to be permitted to introduce this evidence before the jury by witness Shackleford, but the State's objection was again sustained. Recently, in Walker v. State, Tex.Cr.App., 530 S.W.2d 572 (1975), we quoted with approval from Bacon v. State, 147 Tex.Crim. 605, 183 S.W.2d 177 (1944) as follows: "Upon the trial appellant sought to prove the fact of Chastain's acquittal. It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted. Wharton's Crim. Evidence, 11 Ed., Vol. 2, p. 1216, Sec. 724; 22 C.J.S. Criminal Law Sec. 784, p. 1334; Giles v. State, 109 Tex.Crim. R., 4 S.W.2d 66; Bell v. State, 33 Tex.Crim. R., 25 S.W. 769; Harper v. State, 11 Tex. App. 1[ 11 Tex.Crim. 1]; Walding v. State, 135 Tex.Crim. 430, 120 S.W.2d 1052. Cited in the notes under the sections in the textbooks will be found many cases from other jurisdictions supporting the principal announced in the Texas cases (supra)."
This is not a case where admission or proof of guilt by one is inconsistent with guilt of another. See Bacon v. State, 1944, 147 Tex.Cr.App. 605, 183 S.W.2d 177. See 1 Wigmore on Evidence 573, 3d Ed. 1940.
The judgment as to Marie Fowler should be reversed for trial anew. Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890; Lara v. State, 72 Tex.Crim. R., 161 S.W. 99; Gonzales v. State, 88 Tex.Crim. R., 226 S.W. 405; Walding v. State, 135 Tex.Crim. 430, 120 S.W.2d 1052; Bacon v. State, 147 Tex.Crim. 605, 183 S.W.2d 177.
" It was also proven, without objection, that appellant's codefendant had been convicted of this offense, (in violation of Bacon v. State, 147 Tex.Crim. R., 183 S.W.2d 177) and this was repeated in jury argument (in violation of Bailey v. State, Tex.Cr.App., 531 S.W.2d 628). Also, an improper question asserting that appellant and his friends had committed other robberies was asked without objection. The effectiveness of counsel is to be judged by the totality of the representation.
Those documents reveal that on August 9, 1978, Hartley was convicted of the aggravated rape of the complainant in the instant offense and assessed punishment of 12 years. In Walker v. State, Tex.Cr.App., 530 S.W.2d 572, the Court quoted the following from Bacon v. State, 147 Tex.Crim. R., 183 S.W.2d 177: ". . . It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted. Wharton's Crim. Evidence, 11 Ed., Vol. 2, p. 1216, Sec. 724; 22 C.J.S. Criminal Law ยง 784, p. 1334; Giles v. State, 109 Tex.Crim. R., 4 S.W.2d 66; Bell v. State, 33 Tex.Crim. 163, 25 S.W. 769; Harper v. State, 11 Tex. App. 1[ 11 Tex.Crim. 1]; Walding V. State, 135 Tex.Crim. R., 120 S.W.2d 1052. Cited in the notes under the sections in the text books will be found many cases from other jurisdictions supporting the principal announced in the Texas cases (supra)."
As a general rule, such information cannot be admitted into evidence because upon a trial of one charged with crime, it is not permissible to show that another jointly or severally indicted for the same offense has been convicted or acquitted. Walker v. State, Tex.Cr.App., 530 S.W.2d 572; Tucker v. State, Tex.Cr.App., 461 S.W.2d 630; Bacon v. State, 147 Tex.Cr. 605, 183 S.W.2d 177. The unsworn testimony of the prosecutor injected new facts into the case which were harmful and prejudicial to appellant.
Appellant contents that the not guilty verdict in the Rollins case was admissible on the issue of contemporary community standards. In Bacon v. State, 147 Tex.Crim. R., 183 S.W.2d 177 (1944), this Court wrote: "Upon the trial appellant sought to prove the fact of Chastain's acquittal. It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted. Wharton's Crim. Evidence, 11 Ed., Vol. 2, p. 1216, Sec. 724; 22 C.J.S., Criminal Law, ยง 784, p. 1334; Giles v. State, 109 Tex.Crim. 234, 4 S.W.2d 66; Bell v. State, 33 Tex.Crim. R., 25 S.W. 769; Harper v. State, 11 Tex. App. 1; Walding v. State, 135 Tex.Crim. R., 120 S.W.2d 1052. Cited in the notes under the sections in the text books will be found many cases from other jurisdictions supporting the principal announced in the Texas cases (supra)."
Appellant's first ground of error is that the jury heard not only that one of the principals had been found guilty, but also that death had been the punishment in this principal's case. It is axiomatic that it is inadmissible to prove that another, jointly or separately indicted for the same offense, has been convicted or acquitted. Bacon v. State, 147 Tex.Crim. 605, 183 S.W.2d 177, Barton v. State, 172 Tex.Crim. R., 361 S.W.2d 716. Another situation is presented when the accused is charged as an accomplice and evidence is offered to show that a principal is guilty of or has been convicted for the same offense.
This was clearly inadmissible, and the court erred in failing to respond to appellant's motion to withdraw the same from the jury's consideration. In Bacon v. State, 147 Tex.Crim. R., 183 S.W.2d 177, Judge Hawkins, speaking for the Court, said, 'It is well established as a general rule that upon the trial of one charged with crime it is not permissible to show that another jointly or separately indicted for the same offense has been convicted or acquitted.' See also Martin v. State, 151 Tex.Crim. 212, 206 S.W.2d 254. For the errors pointed out, the judgment is reversed and the cause is remanded.
Timothy Joe Thomas testified that when he was employed at T.K.'s the manager had told him that he could possibly be arrested, and that if he were arrested that T.K.'s would post his bond to get him out of jail, and that it would take care of any fines. Evidence of that promise, along with evidence that Timothy Joe Thomas was in fact arrested, had pled guilty, and had his fine paid by T.K.'s was relevant to the issue of T.K.'s knowledge as to the obscene content and character of the tape in question. T.K.'s relies on the cases of Thornton v. State, 542 S.W.2d 181 (Tex.Crim.App. 1976); Walker v. State, 530 S.W.2d 572 (Tex.Crim.App. 1975); and Bacon v. State, 147 Tex.Crim. 605, 183 S.W.2d 177 (1944) in support of a general rule that it is not permissible to show that another jointly or severally charged for the same offense has been convicted or acquitted. We have examined all of those cases and find that in none of them was the plea of guilty of a codefendant relevant to any issue in the case as it is in the case at bar.