Opinion
No. 42649.
March 25, 1970. Rehearing Denied May 6, 1970.
Appeal from the 174th Judicial District Court, Harris County, E. B. Duggan, J.
Cutler Epps by Raymond Epps, Houston, on appeal only, for appellant.
Carol S. Vance, Dist. Atty., and James C. Brough and Robert Scott, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
The offense is possession of heroin; the punishment, 15 years.
Appellant's retained counsel on appeal earnestly urges this Court to consider as fundamental error the following argument of the prosecutor, which he contends constituted a comment upon the appellant's failure to testify:
"* * * They brought you Ramon's testimony. They could bring you doctors; they could bring you the mother of Ramon who possibly saw him while he was using the telephone; they could have brought you the person he was talking to on the phone who we have no way of knowing or no way of obtaining that name, unless it comes from the mouth of that man — '
"MR. MARTINEZ: Your Honor, we are going to object at this time.'
"THE COURT: Well, the jury heard the evidence. Stay in the record."
In Howe v. State, Tex.Cr.App., 380 S.W.2d 615, we held 'We object to that, Your Honor, at this time' was not sufficient to preserve error.
We remain convinced of the soundness of our holding in Howe, and find no error preserved in the case at bar.
The judgment is affirmed.