holding that a magazine found in the defendant’s bedroom closet that contained sexually-explicit photographs of a young female posing with a teddy bear constituted an affirmative circumstantial link when considered with evidence that the defendant pretended to be a photographer and had a young female pose with a teddy bear and testimony that defendant reached under the female’s blouse, skirt, and underwear to touch her inappropriately
How later courts described this case
- holding that a magazine found in the defendant’s bedroom closet that contained sexually-explicit photographs of a young female posing with a teddy bear constituted an affirmative circumstantial link when considered with evidence that the defendant pretended to be a photographer and had a young female pose with a teddy bear and testimony that defendant reached under the female’s blouse, skirt, and underwear to touch her inappropriately
- op. on reh = g
- on motion for rehearing
Written by the judges who cited it.
The opinion
ODOM, Judge
(concurring).
I concur in the result reached by the majority. However, I must explain my reason for concurring on the last ground of error.
The question was propounded to reputation witness Miller, on cross-examination at the punishment stage of the trial, as follows :
“In that connection, Mr. Miller, I will ask you if you have ever heard discussed any plan that he (appellant) had to kidnap those children from his former wife in defiance of a court order ?”
Such question is improper 1 but seems to be harmless error under the particular facts of this case since appellant had applied for probation, 2 and the following was brought out on direct examination: (1) The witness testified that he knew appellant’s reputation and was personally well acquainted with him; (2) that they were of the same profession; (3) that they had worked together as Assistant District Attorneys for Potter and Armstrong Counties; (4) that they served together on the Board of Directors of a bank; (5) that they were in the same business club; (6) that they had worked together “in Boy Scout work and in Bar work, Junior Bar and Senior Bar work, and then in Amarillo Jaycees”; (7) that he had discussed appellant’s reputation with many people, including two district judges in Amarillo, and with numerous lawyers; (8) that he had visited in the appellant’s home; (9) and, that he knew the appellant’s family.
In light of the development in the record of this close personal relationship between the witness and the appellant, including the fact that the witness knew appellant “during the time his divorce was taking place,” I conclude that the error was harmless.
. See, e. g., Jones v. State, Tex.Cr.App., 479 S.W.2d 307 ; Webber v. State, Tex.Cr.App., 472 S.W.2d 136 .
. Cf. McCrea v. State, Tex.Cr.App., 494 S.W.2d 821 (1973) ; Walker v. State, Tex.Cr.App., 493 S.W.2d 239 (1973).