# Jones v. State

> Court of Criminal Appeals of Texas · April 29, 1992 · 843 S.W.2d 487

URL: https://www.frixlaw.com/law-library/cases/9759536

## Case

- **Full name:** Richard Wayne JONES, Appellant, v. STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 29, 1992
- **Citations:** 843 S.W.2d 487; 1992 Tex. Crim. App. LEXIS 110; 1992 WL 232834
- **Precedential status:** Published
- **Opinion:** Concurrence by Baird
- **Judges:** Maloney, Baird
- **Cited by:** 318 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Abrogated on other grounds by Maxwell v. State, 2001 Tex. Crim. App. LEXIS 48 (2001).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9759536

## How later opinions describe it (automated extraction)

- holding testimony of officer explaining how officer came to suspect appellant was not objectionable as hearsay because it was “not offered to prove the truth of the matter asserted, but to show why the officer got an arrest warrant for and arrested appellant”
- holding that, because a statement was not offered to prove the truth of the matter asserted, but to show why the officer got an arrest warrant for and arrested appellant, it was not objectionable as hearsay
- holding that officer’s testimony regarding statements made by a different suspect were not hearsay because they were offered to show why the officer secured a arrest warrant and searched the defendant
- holding that evidence was not inadmissible where it was not introduced for the truth of the matter asserted, but to explain how a witness came to suspect a defendant’s involvement in the crime
- noting that trial court should never be required to sift through challenged evidence “in order to segregate the admissible from the excludable” and that “[i]f evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it …

## Opinion text

BAIRD, Judge,
concurring.
While I join the majority opinion, I write separately to further address appellant’s first point of error.
I.
Yelena Comalander, after a grant of immunity, testified before the grand jury concerning this cause. Comalander was subsequently indicted for aggravated perjury. 1 At trial, appellant called Comalander as a witness. Comalander invoked her right against self-incrimination as guaranteed under the Fifth Amendment to the United States Constitution, Article I, Section 10 of the Texas Constitution, and Tex. Code Grim. Proc.Ann. art. 1.05, and did not testify. Appellant requested a grant of immunity for any testimony Comalander might give but the trial judge overruled appellant’s request. Appellant then offered into evidence a transcription of Comalander’s testimony before the grand jury. The State *502 objected to "the grand jury testimony as being hearsay and the trial judge sustained the objection.
II.
I agree Comalander’s testimony before the grand jury was admissible under the former testimony exception provided by Tex.R.Crim.Evid.Ann. 804(b)(1). However, as the majority correctly concludes, the trial judge properly excluded that testimony.
In Ford v. State, 51 S.W. 935 , 41 Tex.Cr.R. 1 (1899), the State offered portions of the testimony of a co-defendant who had testified at a habeas corpus hearing. The defendant then offered the entire testimony of the co-defendant. The State objected and the trial court informed the defendant that he could read to the jury any other portions of the co-defendant’s testimony which referred to the matters contained in those portions of the testimony offered by the state. However, when the defendant persisted in offering the entire testimony of the co-defendant the trial judge sustained the State’s objection and excluded the testimony. Ford, 51 S.W. at 936-937. Relying on earlier decisions, we held:
... Where some of the evidence objected to is admissible, and some of it not, it is necessary that the bill of exceptions point out that portion of the evidence which is admissible. Where a party offers all of a record, and says it is admissible, and a part of it might be admissible, and part evidently is not, we will not select out for appellant that part which is admissible, but he must do so himself in his bill of exceptions, (citations omitted).
Ford, 51 S.W. at 937.
In Schulz v. State, 446 S.W.2d 872 (Tex.Cr.App.1969) the defendant attempted to offer the admissible testimony of his psychiatrist to establish that Schulz was receiving treatment. However, Schulz also attempted to offer the inadmissible testimony of his psychiatrist that it would be better for Schulz to receive probation. The trial judge excluded all of the psychiatrist’s testimony and we held:
In the present case not all of the proffered testimony of [the psychiatrist] was admissible. If [Schulz] wanted the court to admit the testimony that he had been receiving treatment from a psychiatrist ... he should have specifically pointed out that part of the testimony to the court. The applicable rule is stated in 53 American Jurisprudence, Sec. 140, pp. 124-125:
“It is not incumbent upon the trial court, where evidence offered is relevant or admissible in part only, to separate the good from the bad but it may reject the evidence as a whole.”
The same rule is stated in I Wigmore on Evidence, Third Edition, Sec. 17, p. 320: “It is for the proponent to sever the good and the bad parts.” (Citations omitted).
Schulz v. State, 446 S.W.2d at 874 .
As the majority correctly notes, the rule is the same today: “When evidence which is partially admissible and partially inadmissible is excluded, a party may not complain upon appeal unless the admissible evidence was specifically offered.” Jones v. State, 843 S.W.2d 487, 493 (Tex.Cr.App.1992). Therefore, although the trial court erroneously excluded the testimony of Co-malander on the basis that it was not admissible as former testimony pursuant to Tex.R.Crim.Evid. 804(b)(1), that ruling will not be disturbed on appeal because appellant failed to specifically offer the portions of the testimony which were admissible. As some portions of Comalander’s testimony were admissible while other portions were inadmissible, appellant had the burden of severing “the good and the bad parts” and specifically offering the admissible portions. Because appellant failed to do so, the trial judge did not err in excluding entire testimony of Comalander.
With these comments I join the majority opinion.
. In addition to being indicted for aggravated perjury, at the time of appellant’s trial Comalan-der had also been indicted for forgery, two cases of credit card abuse and charged with misdemeanor offense of tampering with evidence. All of those cases arose out of events related to appellant’s trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759536. Public record. Not legal advice.