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
CLINTON, Judge,
dissenting.
The two sentences with which the majority reject appellant’s challenge to sufficiency of evidence reflect such a gross mix of concepts that some comment is called for.
The actual owner of the severed telephone line is General Telephone Company. However, where one person owns the property and another person has possession of it, Article 21.08, V.A.C.C.P., permits the scrivener to allege ownership in either, at his option. If he opts for the latter, that person has come to be called a “special owner.” See, e.g., Eaton v. State, 533 S.W.2d 33, 34 (Tex.Cr.App.1976). The term is merely one of convenience — a shorthand rendition of a manner of alleging ownership “in a natural person acting for the corporation,” ibid. Ownership by one or another means prescribed by V.T.C.A. Penal Code, Sec. 1.07(a)(24), coupled with id., (28) when appropriate, still must be proven. Eaton, supra, at 35 .
Mike Harrison is alleged as owner of the damaged property of General Telephone Company. He testified that he is a “security investigator” for the company and that outside telephone wires servicing the residence of Patricia Krabbe are “personal property” of the company. He was then asked and answered:
“Q: Okay, and, you, as a representative of the telephone company on this date, was the special owner of that at that time—
A: Yes.”
Such is the only testimony relating to his ownership of the telephone line entering the residence.
Conclusionary in the extreme, that testimony tells nothing about whether Garrison had (1) title, (2) possession or (3) a right to possession greater than appellant. V.T. C.A. Penal Code, See. 1.07(a)(24). In Williams v. State, 537 S.W.2d 936 (Tex.Cr.App.1976), which the majority asks the reader to “see,” alleged special owner Long was “in charge of security at the hospital ... [and] had the care, custody and management over the hospital and all those *514 things within the hospital,” id., at 939 . That testimony, the Court found, “established that he had ‘possession of the property,’ ” ibid., and perforce “a greater right of possession.” Unlike the showing of Long’s duties and responsibilities with respect to property of the actual owner, all we know about Garrison is that he assented to being characterized a “special owner.”
It is not enough to say that “there has been no objection to such testimony and no evidence to prove the contrary as to ownership.” An accused is not required to object to testimony that has no probative value whatsoever, and the burden of proving that which it alleged is on the State. For purposes of proof the term “special owner” is meaningless, and there is no other evidence that Garrison is the owner as alleged.
I respectfully dissent.
TEAGUE, J., joins.