noting that lateness may be excused if witness answers question before attorney can object or a showing is made that counsel misunderstood the question when asked
How later courts described this case
- noting that lateness may be excused if witness answers question before attorney can object or a showing is made that counsel misunderstood the question when asked
- limited in Alfaro v. State, 638 S.W.2d 891 (Tex Crim 1982)
- dictum; no constitution cited; federal probably intended
Written by the judges who cited it.
The opinion
*936 CLINTON, Judge,
dissenting.
Though I am troubled by the looseness of some of the language used by the majority in overruling the first ground of error, the result seems correct since, as I understand the situation, his remark offered to impeach appellant’s denial that he had made it came during a somewhat argumentative exchange with Trooper Potvin in the patrol unit enroute to the Bell County jail. Thus, while appellant was surely in custody, he was not being subjected to interrogation; his impeaching remark seems purely gratuitous, garrulously uttered; accordingly, it was admissible for that purpose. Sanchez v. State, 589 S.W.2d 422, 423 (Tex.Cr.App.1979) and cases cited therein are ample authority, and all the discussion about Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973), the amendments to Article 38.22, V.A.C.C.P. making Harris v. New York, 401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971) “applicable to Texas law,” and the like is superfluous.
My disagreement with the majority lies in its disposition of the two grounds of error complaining of failure of the trial court to instruct the jury to disregard the answer of Potvin which informed the jury that at the station house appellant invoked his right to remain silent when questioned by the Trooper. The majority labels “untimely” the objection that was made and, therefore, dismisses the matter as not presenting anything for review. But as I read the part of the record excerpted by the majority, a quite proper objection was made just as soon as Potvin revealed appellant’s stated refusal to respond to his inquiries. Certainly the trial court had no problem of timeliness since the judge sustained the objection. And, it must be emphasized, the complaint is in failing to instruct the jury to disregard — a request the timeliness of which cannot be faulted.
Therefore, I would review the grounds of error in light of Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976) and similar decisions by the Supreme Court of the United States treating with impermissible use of silence on the part of an accused by the prosecuting attorney, e. g., Anderson v. Charles, 447 U.S. 404 , 100 S.Ct. 2180 , 65 L.Ed.2d 222 (1980). Because the majority does not, I respectfully dissent.