Opinion

House v. State

  • 947 S.W.2d 251
  • 1997 Tex. Crim. App. LEXIS 40
  • 1997 WL 292680
Court
Court of Criminal Appeals of Texas
Filed
Jun 4, 1997
Status
Published
Author
Mansfield
On the bench
McCormick, Mansfield, Baird, Overstreet, Meyers
Cited by
148 cases
Authority
More cited than 13.2%

stating any error in allowing inadmissible evidence is cured when the same evidence comes in without objection elsewhere in trial

How later courts described this case

  • stating any error in allowing inadmissible evidence is cured when the same evidence comes in without objection elsewhere in trial
  • declining to address claim that alleged violation of disciplinary rule deprived appellant of fair trial when complaint was not raised in trial court
  • reviewing on appeal defendant’s claim that trial court impermissibly allowed two prosecutors to testify
  • “[I]t is unnecessary for trial and appellate courts to decide whether the State’s conduct violated a disciplinary rule. That is the domain of the State Bar.”

Written by the judges who cited it.

The opinion

MANSFIELD, Judge,

concurring.

The record below clearly demonstrates the two assistant district attorneys who testified on behalf of the State at the punishment phase of appellant’s trial were not involved in the prosecution of appellant. Neither of the assistant district attorneys was a victim of the offense charged; nor was either a witness as to the commission of the offense. In my opinion, Rule 3.08 was never intended to bar an attorney employed by a district attorney’s office from testifying as a witness at a trial where that attorney is not acting as an advocate, i.e., the prosecutor. Rule 3.08, I believe, would forbid an attorney from acting as the prosecutor in a cause where he is the victim or a witness to the commission of the offense.

Furthermore, eleven other witnesses, including federal and state law enforcement officers, testified as to appellant’s bad character at the punishment phase. As the State *254 notes in its brief, the court of appeals correctly concluded the testimony of the two assistant district attorneys was merely cumulative. House v. State, 909 S.W.2d 214 , 217 n. 4 (Tex.App.-Houston [14th Dist.] 1995) (pet. grtd.) Even if one assumes, arguendo, the trial court erred in permitting the two assistant district attorneys to testify, this error was harmless beyond a reasonable doubt. Tex.R.App.Proe. 81(b)(2).

Finally, appellant fails to establish the alleged violation of Rule 3.08 affected his substantial rights or deprived him of a fair trial. We recently held reversal of a conviction for an alleged violation of a disciplinary rule is not required unless the appellant can demonstrate said violation either affected his substantial rights or deprived him of a fair trial. Brown v. State, 921 S.W.2d 227 (Tex.Crim. App.1996). Having failed to meet the requisite showing required by Broum, appellant is not entitled to a reversal of his conviction.

With these comments, I join the opinion of the Court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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