Hernandez v. State

DALLY, Judge,

dissenting.

The majority reverse the judgment of conviction in this case because State’s Exhibit 7 (a pen packet) was admitted in evidence. State’s Exhibit 7 contained several documents, one of which it is argued was inadmissible. I dissent to the holding of the majority because the trial objection was insufficient to apprise the trial court of the document to which objection was made.

Unquestionably the exhibit was for the most part admissible. When evidence is admitted a part of which is admissible and a part of which is not, it is incumbent on the party objecting to the admissibility of the evidence to specifically point out what part is inadmissible to preserve the alleged error. See e. g., Brown & Root v. Haddad, 142 Tex. 624 , 180 S.W.2d 339 (Tex.Sup.1944); Crook v. Malone, 571 S.W.2d 544 (Tex.Civ.App.1978); Sehriewer v. Liedtke, 561 S.W.2d 584, 586 (Tex.Civ.App.1978); Smith v. Riviere, 248 S.W.2d 526 (Tex.Civ.App.1952); Panhandle & S.F. Ry. Co. v. Cowan, 243 S.W. 912 (Tex.Civ.App.1922).

The trial objection made by the appellant when the exhibit was offered follows:

“[Defense Counsel]: Your Honor, as to exhibit 8 we have no objection. As to 7, Your Honor, we object on the grounds that I discussed with the Court. And if the court wants me to lay it out now, again, I will.”

Unfortunately the record does not include the discussion to which counsel referred, and it is the burden of the appellant to make the record and preserve his alleged error. This statement made by defense counsel was immediately followed by:

“I object on the grounds that the pen pack contains an extraneous offense on a non-final conviction and should not be given to the jury for consideration.

“On those grounds we would object in that it is highly prejudicial to Mr. Hernandez in this particular case.”

In his appellate brief appellant’s counsel says:

“Over Appellant’s timely objection (Vol. II p. 275, lines 1-9), a prison packet, (Vol. II State Exhibit No. 7) from the State of Texas was introduced to show Appellant’s prior criminal record. The prison packet reflected that Appellant was convicted on 1st day of October 1973 of the felony of House Theft and assessed 6 years in the Texas Department of Corrections. Appellant agrees that portions Judgment and Sentence; of the ‘Prison Packet’ was properly admitted. Art. 37.-07 Vernon’s Ann.C.C.P.

“However, the packet also included an instrument entitled ‘Motion to Revoke Order For Adult Probation;’ and an instrument entitled ‘Order Revoking Probation.’ * *

If appellant at the time of trial had pointed out the document to which he had ob *617 jected as he does in the ground of error in his. appellate brief, a different matter would be presented. He did not point out to the trial judge at the time of trial as he does on appeal that it was the instrument “Motion to Revoke Order For Adult Probation” to which he objected.

The appellant did not sufficiently preserve in the trial court the error which he claims on appeal. The alleged error was not properly preserved, and the trial judge was “sand bagged.” A trial judge in the heat of a trial does not have the time that an appellate judge has to peruse an exhibit. The trial judge should not be required to comb through the whole exhibit to find the particular document which might contain the evidence to which appellant objected, while the appellant then stands by, but later on appeal makes plain his objection.

I dissent to the holding of the majority because the alleged error was not properly preserved at the time of trial.

Before the court en banc.