
    Joe Dean Elliott v. State
    No. 25291.
    October 31, 1951.
    Appellant’s Motion for Rehearing Denied (Without Written Opinion) December 12, 1951.
    Hon. Robert A. Hall, Judge Presiding.
    
      Leonard R. Winborn and Piranio & Piranio, by Angelo Piranio, Dallas, for appellant.
    
      Henry Wade, Criminal District Attorney, and Charles S. Potts, Assistant Criminal District Attorney, both of Dallas, and George P. Blackburn, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

Having again examined the record in accordance with appellant’s request, we now note that the statement of facts does not bear the approval of the trial judge, as required under the statute applicable at the time of its filing in the trial court. We further observe that the statement of facts does not appear to have been agreed to by the attorney representing the state.

The statement of facts having been taken into account in the former opinions herein, such former opinions are now withdrawn.

The conviction is for statutory rape, with punishment assessed by a jury at 10 years in the penitentiary.

There are several bills of exception in the record, but they cannot be appraised in the absence of a statement of facts.

The bills relating to the admittedly improper argument of the special prosecutor each show that the trial court instructed the jury to disregard the complained of remarks. And it is not contended that the argument violated any constitutional or statutory provision.

Whether or not the argument was obviously hurtful and prejudicial and therefore so vicious as to warrant reversal, notwithstanding the trial judge’s instructions to disregard, must be determined in the light of the facts of the case and the punishment assessed by the jury.

Being without authority to consider the statement of facts, it follows that we are in no position to find that the argument was prejudicial, or that it resulted in harm to appellant.

The judgment of the trial court is affirmed.

Opinion approved by the court.  