concluding appellant could not complain of failure to grant mistrial after improper question when same evidence came in later without objection and stating, “it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection”
How later courts described this case
- concluding appellant could not complain of failure to grant mistrial after improper question when same evidence came in later without objection and stating, “it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection”
- determining that defendant did not preserve issue for appellate review where he successfully objected to improper question about prior conviction but did not object when prosecutor rephrased question and elicited same evidence with next question
- stating that “it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered”
- holding, "it is well settled that an error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered.”
Written by the judges who cited it.
The opinion
ODOM, Judge,
dissenting.
I dissent to the majority opinion’s perfunctory consideration of the ninth ground of error, in which appellant challenges the sufficiency of the evidence to prove ownership of the damaged property in Mike Garrison as alleged. Garrison was a security investigator with General Telephone Company, the actual owner of the damaged telephone lines. In his only testimony relating to ownership Garrison testified:
“Q. Now, Mr. Garrison, as security investigator for the telephone company for a customer such as Patricia Frost Krabbe at 1749 Rusdel Drive, are the telephone wires that service that residence that are, for instance, outside her home, is that or is it not the personal property of General Telephone Company?
“A. Yes.
“Q. Is it tangible personal property, the telephone wires themselves?
“A. Yes.
“Q. Okay, and you, as a representative of the telephone company on this date, was the special owner of that property at that time,—
“A. Yes.”
*513 In Compton v. State, 607 S.W.2d 246 (Tex.Cr.App.1979), the scope of ownership under V.T.C.A., Penal Code Sec. 1.07(a)(24) was considerably expanded. Nevertheless, it is essential that the relationship of the alleged special owner to the property and its true owner be shown. As stated in Compton :
“We must look to the employment relationship to determine who is the proper owner under Section 1.07(a)(24), supra. In any modern corporation, responsibility will probably extend to several different people at various levels within the organization.”
There is no evidence of Garrison’s employment relationship to General Telephone, nor of his connection with the damaged property, that sheds any light on the issue of whether he qualifies as a special owner of the property. While it is true that Compton v. State, supra, held that the part of Sec. 1.07(a)(24), supra, that makes an owner of anyone with “a greater right to possession of the property than the actor,” there still must be some evidence that the alleged owner had some right to possession of the property, because it is self-evident that a person with no right to possession cannot have a greater right to possession than anyone.
In order to prove that Garrison had a greater right to possession of the property than appellant, there must be evidence that Garrison had some kind of right to possession of the property. The mere statement that his job title was “security investigator” and the legal conclusion in the prosecutor’s question referring to Garrison as “the special owner” is no evidence of his employment relationship with the company and sheds no light on his responsibilities, if any, for the property. The effect of the majority opinion is to shift the burden of proof from the prosecution to the defense. This is unconstitutional and contrary to the holding of Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975). I therefore must dissent.
TEAGUE, J., joins this dissent.