concluding that the dissenting opinion correctly stated the rule that, “[w]hen 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”
How later courts described this case
- concluding that the dissenting opinion correctly stated the rule that, “[w]hen 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”
- explaining that when evidence is admitted, part of which is admissible and part of which is not, it is incumbent on objecting party to specifically point out what part is inadmissible to preserve alleged error
- holding objection inadequate to preserve error 4 because it was leveled at entire exhibit and failed to specify and identify objectionable part
- holding objection inadequate to preserve error because it was leveled at entire exhibit and failed to specify and identify objectionable part
Written by the judges who cited it.
The opinion
OPINION ON STATE’S MOTION FOR REHEARING
ODOM, Judge.
This is an appeal from a conviction for burglary, wherein punishment was assessed at thirty years. On original submission the judgment was reversed because a motion to revoke probation was improperly admitted as part of a “pen packet” at the punishment stage. We agree with the conclusion of Judge Daily’s dissenting opinion on original submission and hold that the objection to the admission of this evidence was insufficient to preserve error.
When the exhibit was offered into evidence, the following objection was made:
“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.”
The dissenting opinion on original submission correctly states the essence of the insufficiency of this objection, which on appeal appellant states was leveled at a Motion to Revoke Probation. The objection to the exhibit, which was mostly admissible, failed to specifically point out what part was inadmissible. Two distinct theories of insufficient specificity may be applied to the facts of this case:
“An objection must not only identify what is objected to but must set forth grounds for the objection.” Evans v. State, Tex.Cr.App., 480 S.W.2d 387 . (Emphasis added.)
“An objection to admission of evidence must be specific and must state grounds of the objection, (citations.)” Hinkle v. State, Tex.Cr.App., 442 S.W.2d 728 . (Emphasis added.)
While it might be conceded that appellant’s objection sufficiently stated grounds for the objection, it did not identify what was objected to.
Further, in Heard v. State, 148 Tex.Cr.R. 19 , 184 S.W.2d 285 , it was stated:
“The State offered in evidence the information in No. 2,550. Appellant objected because incorporated therein was the alleged prior conviction in No. 2,499. As we understand the bill, the objection went to the entire information in Cause No. 2,550. Unquestionably it was permissible for the State to prove the conviction of the primary offense charged in Cause No. 2,550 because it was one of the prior convictions relied on in the present prosecution. If appellant desired the exclusion of the averments as to his prior conviction in No. 2,499 the objection should have been restricted to that part of the information . . . (Emphasis added.)
Thus, without regard to the failure to specify and identify what was objected to, the objection was defective because it was leveled at the entire exhibit, rather than being restricted to the part which was made the subject of the ground of error. Appellant’s first ground of error is overruled.
*618 In his other ground of error appellant maintains the trial court erred in denying his “request for limiting instructions in the punishment charge as to the use the jury could make in its deliberation of the alleged extraneous offense which was the basis of the revocation of Appellant’s probation.” At the time of appellant’s trial in 1977, Art. 36.15, V.A.C.C.P., required that requested instructions be submitted in writing. Because this statute was not complied with, nothing is presented for review.
The State’s motion for rehearing is granted and the judgment is affirmed.
ROBERTS, PHILLIPS and CLINTON, JJ., dissent.