finding no error when trial court overruled relevancy objection “pending the fact that” the prosecutor would introduce evidence sufficient to fulfill a condition of fact; “Clearly, the parties must be allowed to develop their cases one step at a time.”
How later courts described this case
- finding no error when trial court overruled relevancy objection “pending the fact that” the prosecutor would introduce evidence sufficient to fulfill a condition of fact; “Clearly, the parties must be allowed to develop their cases one step at a time.”
- finding inquiry is whether photographs so horrifying or appalling that juror of normal sensitivity would necessarily encounter difficulty rationally deciding critical issues of case after viewing the photographs
- holding that under rule 104(b), evidence should not be excluded merely because its relevance may depend upon the production of additional evidence at a later point in the trial
- holding that defendant did not have standing under art. 38.23 to object to admission of evidence unlawfully obtained from another person
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Castillo v. State, 1995 Tex. Crim. App. LEXIS 124 (1995)
829 S.W.2d 191, 206 (Tex. Crim. App. 1992), overruled on other grounds by Castillo v. State, 913 S.W.2d 529
Overruled on other grounds by Riley v. State, 1994 Tex. Crim. App. LEXIS 147 (1994)
829 S.W.2d 191, 202 (Tex. Crim. App. 1992), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 301
Overruled by State v. Daugherty, 1996 Tex. Crim. App. LEXIS 88 (1996)
Neither of our Johnson cases nor Daugherty overruled Fuller even though a dissenting opinion in our most recent Johnson case noted the inconsistent approaches taken by this Johnson case and Fuller in interpreting Article 38.23(a).
Distinguished
Distinguished by Murphy v. State, 2003 Tex. Crim. App. LEXIS 118 (2003)
A plurality of the Court disagreed, holding that Fuller controlled and Garrett was distinguishable.
Distinguished by Sadler v. State, 1998 Tex. Crim. App. LEXIS 127 (1998)
Fuller is inapposite.
Distinguished by Rachal v. State, 1996 Tex. Crim. App. LEXIS 7 (1996)
For the reasons explained below, we disagree with appellant and hold that Fuller and Garrett are distinguishable and that Fuller is controlling.
The opinion
MILLER, Judge,
concurring.
As to Roman numeral II and the treatment of preservation of error, Tex.R.Crim. Evid.Rule 103(a)(1) demands a timely “objection” or “motion to strike”. Rule 104(b) allows admission of evidence “subject to” proving up relevancy later in the trial. The question of when such a Rule 103(a)(1) objection or motion to strike is “timely” depends directly on the answer to the question of just who has the obligation to point out that the “proving up” part of Rule 104(b) never occurred. The plurality opinion would put that burden on the party opponent to the admission of the evidence; I disagree.
For various policy reasons I would put the burden, of pointing out that the “proving up” requirement has not been met, upon the judge who availed himself of the procedures in Rule 104(b). Since a majority of this Court cannot agree whether the judge or the party opponent has that burden, further elaboration today of the policy reasons would seem to be an exercise in futility, and is better left to another day when perhaps a consensus might emerge.
With these remarks I only concur in the result reached in section II of the plurality opinion, but join the remainder of that opinion.
MALONEY, J., joins this concurring opinion.