holding a witness’s statement that appellant had committed “past violence” was cured by a prompt instruction to disregard because the State did not anticipate the comment, the comment was not a “concrete reference” to an extraneous offense, and the witness was prevented from elaborating on the extraneous offense because of the prompt objection
How later courts described this case
- holding a witness’s statement that appellant had committed “past violence” was cured by a prompt instruction to disregard because the State did not anticipate the comment, the comment was not a “concrete reference” to an extraneous offense, and the witness was prevented from elaborating on the extraneous offense because of the prompt objection
- addressing variance claim by pointing out that State "was required to prove beyond a reasonable doubt” that the defendant caused the victim’s death in the manner alleged in the indictment, and that "the State is bound by the theory alleged in the indictment, as is the reviewing court in its sufficiency analysis” and stating that "a variance between the indictment and the evidence at trial may be fatal to a conviction, because Due Process guarantees the defendant notice of the charges against him” and concluding that “the evidence supported the indictment” and that the proof was consistent with the indictment
- upholding the admission of autopsy photographs of injuries to the groin where the evidence suggested that the appellant inflicted them during the same continuous transaction, even though the injuries were not the direct cause of the victim's death; photographs were also probative of the appellant's mental state and the specific circumstances of the murder
- presuming that a trial court performed a required Rule 403 balancing test when the record showed that the court obtained the necessary information to make the determination and subsequently overruled the defendant’s objection to the admission of the evidence
Written by the judges who cited it.
The opinion
KELLER, J.,
concurring.
Art. 36.29 requires that a jury be discharged if a juror becomes disabled so that he is unable to continue his duty or if the jury is prevented from being kept together “under circumstances under which the law requires that they be kept together.” The “disabled” language seems to contemplate a permanent disability from continuing one’s duty as a juror. Juror Smith was not “disabled” under Art. 36.29 because he was able to continue his duty, albeit after a delay. The question then becomes whether Art. 36.29 required discharge of the jury because “the law required” that the jury be kept together. Art. 35.23 allows a jury to be sequestered after the charge is given. The majority understands Art. 35.23 to require sequestration for the period beginning with the charge on guilt/innocence and ending with the verdict of guilty, and for the period beginning with the charge on punishment and ending with the verdict on punishment, but not for the period between the guilty verdict and the charge on punishment. I think this is a reasonable reading of the statute, but even if it is not there was no reversible error in this case.
Art. 35.23 states that after the charge is given, a trial court may sequester a jury on his own motion but must sequester a jury on motion of either party. I think the jury had been sequestered in this case. However, the record does not show a motion to sequester the jury. Thus, the sequestration could have been on the court’s own motion. If the jury is sequestered on the court’s own motion, the “law requires” that it be kept together. But since sequestration after the charge is permissive rather than mandatory if it is on the court’s own motion, it appears plain that the court that ordered sequestration could, in effect, dissolve that order and allow the jury to separate.
The same is true if the sequestration was on the State’s motion. The State’s request to allow the jury to separate would be, effectively, a request to withdraw its motion, which the court could allow.
If the sequestration was on motion of the defense, then “the law required” that the jury be kept together. We have held that in such cases the defendant is entitled to reversal unless the State successfully rebuts the presumption of harm raised by the improper jury separation. Reed v. State, 595 S.W.2d 856 (Tex.Crim.App.1980). But although a harm analysis is appropriate, see Cain v. State, 947 S.W.2d 262 (Tex.Crim.App.1997), harm should no longer be assessed by the standard used in Reed . Because any error is statutory (failure to comply with Art. 35.23) rather than constitutional, the proper test for harm is provided by R. 44.2(b) of the Texas Rules of Appellate Procedure: any error in allowing the separation of the jury that did not affect substantial rights must be disregarded. Here, the record shows that prior to the separation the trial court instructed the jury not to read anything about the case, not to listen to anything about the case, and not to discuss the case with anyone. On this record, any error in allowing the jury to separate was harmless.
With these comments, I join the opinion of the Court.
McCORMICK, P. J., joins.