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
OVERSTREET, Judge,
concurring.
I concur in the result only because I believe the majority opinion incorrectly concludes that appellant’s second point of error, which complained of admission of testimony implying his membership in an Aryan prison gang, was not preserved for appellate review. The majority concludes that he waived this error when he failed to renew his objection and request an instruction to disregard the testimony at the end of the State’s presentation. Since appellant had lodged a timely objection initially, in my opinion the error was sufficiently preserved.
When the Court finds error has been committed in trial, a harmless error analysis should be conducted pursuant to Rule 81(b)(2). In this case, it is my belief that a harmless error analysis would lead to a finding beyond a reasonable doubt that the complained of error did not contribute to appellant’s punishment.