stating that the court was not required to poll the jury members as to whether they had read a newspaper article when the court had frequently admonished the jury not to read any such articles and polling the members created a risk of calling to their attention an article of which they might not otherwise be aware
How later courts described this case
- stating that the court was not required to poll the jury members as to whether they had read a newspaper article when the court had frequently admonished the jury not to read any such articles and polling the members created a risk of calling to their attention an article of which they might not otherwise be aware
- holding that objection to conditionally admitted evidence did not preserve error when appellant did not renew objection upon State’s failure to introduce sufficient “connecting” evidence
- stating claim that tangible item of evidence improperly admitted due to lack of proper authentication not preserved absent specific and timely objection
- holding complaint about testimony not preserved for appellate review because defendant failed to renew objection by moving to strike conditionally admitted evidence
Written by the judges who cited it.
The opinion
[[Image here]]
dissenting to Appellant’s Motion for Rehearing.
In his fifth ground for rehearing appellant contends we erred in holding the extraneous offense for which he had been acquitted was admissible. This ground relates to the seventh, eighth and ninth points of error on direct appeal. Ante, 898 S.W.2d at 829-830. Although I dissented to the resolution of those points of error, ante, 898 S.W.2d 835 (Baird, J., dissenting), and while I continue to adhere to the beliefs stated in my dissenting opinion, I would not ordinarily vote to grant rehearing absent some extraordinary circumstance. However, this case presents such a circumstance.
The majority opinion held the State does not have to prove an extraneous offense beyond a reasonable doubt. Ante, 898 S.W.2d 830 ; citing, Adanandus v. State, 866 S.W.2d 210, 233-234 (Tex.Crim.App.1993). However, this is no longer the law. In Harrell v. State, 884 S.W.2d 154 (Tex.Cr.App.1994), we held that, to be admissible, the State must prove an extraneous offense beyond a reasonable doubt. Id., 884 S.W.2d at 154 . See also, George v. State, 890 S.W.2d 73 (Tex.Cr. App.1994).
Although Harrell and George are non-capital cases, that fact is insufficient to distinguish them from the instant case. Capital defendants do not receive less protection than non-capital defendants. To the contrary. Because capital punishment is qualitatively different from any other punishment, the Eighth Amendment requires a greater degree of reliability in the jury’s determination that death is the appropriate punishment. Woodson v. North Carolina, 428 U.S. 280, 305 , 96 S.Ct. 2978, 2991 , 49 L.Ed.2d 944 (1976). See also, Jurek v. Texas, 428 U.S. 262, 276 , 96 S.Ct. 2950, 2958 , 49 L.Ed.2d 929 (1976); and, Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972) (decided in conjunction with Branch v. Texas). Consequently, the burden of proof may not be less in a capital case than in a non-capital case.
In denying appellant’s motion for rehearing, we forego the opportunity to reconcile this ease with Harrell and George and the opportunity to avoid the inevitable confusion that will confront the bench and bar as a result of these irreconcilable opinions.
For these reasons, I would grant appellant’s fifth ground for rehearing. Because the Court fails to do so, I respectfully dissent.