Opinion
No. 48841.
July 24, 1974.
Appeal from the 72nd Judicial District Court, Lubbock County, Pat S. Moore, J.
John R. McFall, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty., and Patrick G. Hubbard, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
This is an appeal from a conviction for the felony offense of theft by bailee. The jury assessed punishment at two years.
The appellant was an employee at a service station where he stole the money from his employer and falsely reported that it was taken in a robbery.
All of appellant's contentions concern the admission of his confession into evidence and the refusal of the court to instruct the jury on its voluntariness.
During the trial on the merits, the appellant testified that he 'faked' the robbery and took the money as alleged in the indictment. This was tantamount to a judicial confession. Had he not so testified, a different question would be presented. To hold that the court should have instructed the jury not to consider the confession in this case would be requiring an exercise in futility because the jury still had before it the same evidence, the admission of the appellant in open court that he committed the offense. See Hardin v. State, Tex.Cr.App., 458 S.W.2d 822. No harm or reversible error is shown.
The judgment is affirmed.