# Zimmerman v. State

> Court of Criminal Appeals of Texas · April 7, 1993 · 860 S.W.2d 89

URL: https://www.frixlaw.com/law-library/cases/9674976

## Case

- **Full name:** Kevin Lee ZIMMERMAN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 7, 1993
- **Citations:** 860 S.W.2d 89; 1993 Tex. Crim. App. LEXIS 78; 1993 WL 99912
- **Precedential status:** Published
- **Opinion:** Concurrence by Baird
- **Judges:** Campbell, Baird, Overstreet, Maloney, Clinton, Miller
- **Cited by:** 127 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Baby Boy J. v. Johnson, 510 U.S. 938 (1993).
- Negative treatments: 4
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9674976

## How later opinions describe it (automated extraction)

- holding the presumption of innocence does not carry with it the connotation that a defendant is in fact innocent
- noting that a relevancy objection does "not preserve error as to any violation of Rule 403"

## Opinion text

BAIRD, Judge,
concurring.
For the following reasons, I concur in the disposition of appellant’s sixth point of error and otherwise join the opinion.
I.
To resolve appellant’s point of error six, the plurality finds appellant’s complaint at trial differed from his complaint on appeal. Citing Rezac v. State, 782 S.W.2d 869 (Tex.Cr.App.1990), the plurality holds appellant failed to preserve his complaint for review. 1 I disagree.
The plurality’s reliance upon Rezac is misplaced. Rezac objected to the admission of a videotape contending, 1) the State had no probable cause to videotape him, and 2) his request for counsel was refused. Rezac, 782 S.W.2d at 870-871 . The Court of Appeals reversed, holding evidence of Rezac’s invocation of his right of counsel was erroneously placed before the jury. Rezac v. State, 722 S.W.2d 32, 33 (Tex.App.—Dallas 1986). We reversed, holding:
... Thus, appellant’s objection at trial failed to state the theory relied upon by the Court of Appeals. Because the trial judge did not have an opportunity to rule on a motion to quash based on the jury making impermissible inferences from appellant’s invocation of his right to counsel, nothing is presented for appellate review.
Rezac, 782 S.W.2d at 871 .
Our holding in Rezac is based upon Purtell v. State, 761 S.W.2d 360 (Tex.Cr.App.1988), wherein we stated:
... In order to perfect an issue for appeal, an objection is “required to inform the trial judge of the basis of the objection and afford him the opportunity to rule on it.” ... In addition, the objection should “afford opposing counsel an opportunity to remove the objection or supply other testimony.”
Purtell, 761 S.W.2d at 365-366 , quoting Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977). Therefore, before reaching the merits of a point of error an appellate court must determine whether the point of error comports with the trial objection. If so, the trial judge had the opportunity to rule on the objection and opposing counsel could have cured any error.
II.
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R.Crim.Evid. 401. Except as may be provided for in the Constitution, our statutes or *104 rules, all relevant evidence is admissible. Tex.R.Crim.Evid. 402. Conversely, irrelevant evidence is inadmissible. Id. Nevertheless, relevant evidence may be excluded if substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence. Tex.R.Crim.Evid. 403.
In Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1990) (Opinion on rehearing), we held an objection to the relevancy of evidence properly preserves the issue for appeal. Montgomery, 810 S.W.2d at 387 . Cf., Cohn v. State, 849 S.W.2d 817, 821 (Tex.Cr.App.1993) (Campbell, J., concurring) (“bolstering” objection insufficient to invoke Rule 403 analysis). Although Montgomery concerned the admissibility of extraneous offenses, we have held it governs the admissibility of evidence in general. Long v. State, 823 S.W.2d 259, 271 (Tex.Cr.App.1991). However, an objection to relevancy is insufficient to preserve the issue for appeal if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. A further objection based upon Rule 403 is now required. Montgomery, 810 S.W.2d at 388 .
III.
Appellant contends the trial judge erred in admitting State’s exhibit 71. 2 At trial, the State tendered two photographs of the deceased. State’s exhibit 46 depicted the deceased as he appeared before the autopsy. State’s exhibit 71 depicted the deceased with his wife and child. Appellant objected:
[Appellant’s Counsel]: As to the State’s proffer of State’s exhibit 71 we object to it. It’s not relevant to this proceeding. There’s already a picture of [the deceased] in evidence....
[Trial Judge]: This [State’s exhibit 46] isn’t in.
[Appellant’s Counsel]: No. No, that’s not.
[Trial Judge]: It’s [State’s exhibit 46] tendered. It’s not in evidence.
[Appellant’s Counsel]: We’re object to it [State’s exhibit 71] because there already is another one.
[Trial Judge]: You object to 71?
[Appellant’s Counsel]: Yes. On relevancy.
On appeal appellant continues to complain of the ruling on State’s Exhibit 71:
There was absolutely no relevance of the portion of State’s No. 71 depicting the decedent’s wife and child to the issue of whether or not Appellant was guilty of capital murder as alleged in the indictment. As pointed out by Appellant, the introduction of a picture of his wife and child was in fact irrelevant and obviously could only have been an attempt on the part of the State to show the character of the decedent as a decent family man. While such may have been true, it was clearly not relevant to the issue of guilt or innocence.
[[Image here]]
... the purpose of the photograph of the decedent together with his family was to arouse and inflame the jury against Appellant. The testimony was irrelevant to any issue before the jury and was not proper for any purpose.
Appellant’s Brief pg. 24.
Appellant’s objection informed the trial judge of the basis of his objection, the trial judge ruled on the objection and the State was given an opportunity to cure any error. See, Purtell, supra, and, Zillender, supra. As appellant presents the same complaint on appeal as he made at trial, Rezac is inapplicable.
IV.
The State contends appellant failed to state specific grounds for his objection under Tex.R.App.P. 52(a). While appellant’s objection could have been better stated, we have held that when the “correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection.” Zillender, 557 S.W.2d at 517 . See, Lankston v. State, 827 S.W.2d *105 907, 909 (Tex.Cr.App.1992); and, Tex. R.App.P. 52(a) (specific grounds for objection must be stated “if the specific grounds were not apparent from the context”). Here, by viewing the proposed exhibits, and the argument of counsel, the grounds for appellant’s objection are apparent. 3 Appellant’s objection to the relevancy of State’s Exhibit 71 was sufficient to preserve error as to any violation of Rule 401.
However, appellant’s relevancy objection did not preserve error as to any violation of Rule 403. Whether the probative value of State’s exhibit 71 was substantially outweighed by the danger of unfair prejudice is not before the Court because there was no such objection at trial. See, Long, 823 S.W.2d at 271 ; and, Montgomery, 810 S.W.2d at 388 .
V.
Evidence of the deceased’s good character, unless attacked by the defense, is irrelevant. Armstrong v. State, 718 S.W.2d 686, 702 (Tex.Cr.App.1985) (opinion on rehearing) (Testimony of deceased’s good character “was irrelevant to any issue before the jury and was not proper rebuttal”). See also, Hatley v. State, 533 S.W.2d 27, 29 (Tex.Cr.App.1976). The State does not contend State’s Exhibit 71 makes the existence of any consequential fact more or less probable. Further, the State does not direct our attention to, nor have we found, any instance in the trial where the character of the deceased was questioned. State’s exhibit 71 clearly was an attempt to convey to the jury the character and circumstances of the deceased. Such evidence does not tend to make any consequential fact more or less probable. Therefore, the trial judge erred in admitting State’s Exhibit 71.
VI.
The State contends appellant waived the error because photographs of the deceased’s family had previously been admitted without objection. Prior to the admission of State’s Exhibit 71, the deceased’s wallet was introduced into evidence without objection. The wallet contained photographs of the deceased’s mother, sisters, wife and children. Each photograph was identified and discussed before the jury without objection from appellant.
In Stoker v. State, 788 S.W.2d 1 (Tex.Cr.App.1989), we held:
It is well established that when ... the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal.
Id., 788 S.W.2d at 12 . See also, Boles v. State, 598 S.W.2d 274, 279-280 (Tex.Cr.App.1980) (“Where facts complained of are admitted without objection by other competent evidence, no reversible error is presented.”); Armstrong, 718 S.W.2d at 701 ; Havard v. State, 800 S.W.2d 195, 205 (Tex.Cr.App.1989); and, Womble v. State, 618 S.W.2d 59, 62 (Tex.Cr.App.1981). Because other photographs of the deceased and his family were admitted without objection, the error in the admission of State’s exhibit 71 was waived.
With these comments, I concur.
MILLER, J., joins this opinion.
. Specifically, the plurality holds:
At trial, appellant objected to the introduction of exhibit 71 solely on the basis of relevancy. On appeal, however, appellant argues that “the introduction of a picture of [the decedent’s] wife and child could only have been an attempt ... to show the character of the decedent as a decent family man." When the complaint on appeal differs from that made at trial, the error is waived.
Majority Opinion at 98 (citation omitted).
. Appellant's point of error six states:
The Trial Court erred in admitting State's Exhibit No. 71, evidence of the character of the deceased.
. In Lankston, supra, we stated:
The standards of procedural default ... are not to be implemented by splitting hairs in the appellate courts. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it. ... [Appellate courts] should reach the merits of those complaints without requiring that the parties read some special script to make their wishes known.
Lankston, 827 S.W.2d at 909 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674976. Public record. Not legal advice.