The offense is murder with malice; the punishment, 999 years.
Appellant urges three grounds of error, none of which challenges the sufficiency of the evidence.
In his first ground, appellant contends that the jury's verdict is cruel and unusual punishment. This Court has held that if the penalty is within the prescribed limits set by the Legislature the jury's verdict will not be disturbed. In the very recent opinion of this Court in Angle v. State, Tex.Cr.App., 501 S.W.2d 99, this principle was reaffirmed. No error is shown.
In ground number two, appellant complains of certain sidebar remarks of the prosecutor made during the cross-examination of appellant. Appellant gives four "examples" of the comments in question.
No further relief was requested. Having received all the relief requested, no error is shown. Cazares v. State, Tex.Cr.App., 488 S.W.2d 110.
We do not find that the remark was so prejudicial that the trial court's instruction could not cure it. No reversible error is shown. Cazares v. State, supra.
(3) The objection leveled in the trial court at the prosecutor's remarks in this instance was that they constituted a narrative. Since the complaint now made was not made in the trial court, nothing is presented for review. Bacon v. State, Tex.Cr.App., 500 S.W.2d 512.
(4) The record reflects that no objection was made to the final "example" of a sidebar remark. Nothing is presented for review.
In his final ground of error, appellant contends that the trial court erred in failing to give his requested charge on murder without malice during the guilt or innocence phase of the trial.
The record reflects that appellant and Thomas Harris, who was charged with the
Appellant testified that he was dazed by the collision, that he stumbled from the truck, dropped the gun he had in his pants, picked it up and was moving around the front of the truck with his hands up when he was shot in the wrist by Officer Hartwell. Appellant testified on cross-examination that he fired only in self-defense.
The record fails to raise the issue of murder without malice. There is no testimony that appellant was acting under the influence of sudden passion. Appellant continuously asserted that he was acting in his own defense out of fear for his life. The fact that appellant may have been dazed moments earlier is not sufficient to raise the question of "sudden passion."
The trial court gave an appropriate and complete charge on self-defense and the jury was also instructed to acquit appellant if they had a reasonable doubt that he killed the deceased voluntarily and with malice aforethought.
Finding no reversible error, the judgment is affirmed.