
    ARMSTRONG v. STATE.
    No. 14705.
    Court of Criminal Appeals of Texas.
    Oct. 28, 1931.
    W. J. Barnes, of Houston, and Frank Jud-kins, of Eastland, for appellant.
    Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is for the theft of an automobile over the value of $50; the punishment, confinement in the penitentiary for two years.

There is no statement of facts in this case. Several exceptions were taken to the charge of the court. We have examined said charge and no fundamental error is found therein. In view of the charge as given, we cannot say that it was not applicable to a state of facts that might be made by the evidence under the allegation of the indictment, and therefore, in the absence of a statement of facts, the charge must be held suflicient. Henderson v. State, 20 Tex. App. 304; Wallace v. State (Tex. Cr. App.) 200 S. W. 1088; Bryant v. State, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79; Wilkerson v. State (Tex. Cr. App.) 45 S. W. 805; Williams v. State, 67 Tex. Cr. R. 590 150 S. W. 185.

Appellant reserves a bill of exception to remarks of the district attorney in his closing address to the jury, wherein he is alleged to have used the following language: “Has this defendant proven oy any witness that he ever paid one dollar for this automobile which he claims to have purchased?”

The court qualified said bill to the effect that he heard what the district attorney said in his closing argument and that there was nothing said by him which could be construed as referring to defendant’s failure to testify, nor did said district attorney make the statement as contained in the bill of exception, but.on the contrary what was said by the district attorney was invited by and made in direct answer to the argument of counsel for defendant. There is no exception to said qualification. As qualified, no error iS shown. Smith v. State, 21 Tex. App. 277, 17 S. W. 471; Chalk v. State, 35 Tex. Cr. R. 116, 32 S. W. 534; Moore v. State, 65 Tex. Cr. R. 453, 144 S. W. 598; Campbell v. State, 62 Tex. Cr. R. 561, 138 S. W. 607, 609.

No error appearing, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.  