Donald Thompson v. State of Texas

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-01-00113-CR ______________________________ DONALD THOMPSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 268th Judicial District Court Fort Bend County, Texas Trial Court No. 33,580-A Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Grant O P I N I O N Donald Thompson, appellant, has filed a motion with this court asking us to dismiss his appeal. Pursuant to Tex. R. App. P. 42.2, his motion is granted. The appeal is dismissed. Ben Z. Grant Justice Date Submitted: November 20, 2001 Date Decided: November 20, 2001 Do Not Publish icular ground was apparent from the context. Tex. R. App. P. 33.1; Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992). In addition, Texas law requires a party to continue objecting each time inadmissible evidence is offered. Ethington, 819 S.W.2d at 858; Jefferson v. State, 909 S.W.2d 247, 250 (Tex. App.-Texarkana 1995, pet. ref'd). Any error in admitting the evidence is cured when the same evidence comes in elsewhere without objection. Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Mack v. State, 872 S.W.2d 36, 38 (Tex. App.-Fort Worth 1994, no pet.). For example, in Ethington, 819 S.W.2d at 859-60, the court held that failure to request a "running" objection or to object to each attempted admission would result in waiver of appellate review. Ethington was convicted of aggravated robbery and complained on appeal the trial court erred by admitting evidence of an extraneous offense. Id. at 855. Specifically, the State questioned a witness about another robbery that had been committed by Ethington and the witness. Id. at 857. Ethington objected, claiming the offense was extraneous and inadmissible. Id. After the court overruled the objection, the State continued to probe into the specifics of the extraneous offense with no objection from Ethington. Id. Because Ethington failed to continuously object to the State's questions concerning the offense, the court held that error had been waived. Id. at 859; see Hudson, 675 S.W.2d at 511 (error in admission of evidence is cured when same evidence comes in elsewhere without objection). In the present case, several witnesses testified Severs told them Daniels shot Whitworth in the neck and had the gun at the scene of the crime. While Daniels properly preserved error by objecting to the testimony of Josh Bush, (1) two other witnesses testified to the same matter without objection. During Corey Glen's testimony, the following exchange occurred: [State]: Would you tell this jury what he [Severs] told you first? [Counsel]: I object as hearsay, Your Honor. [Court]: Overruled. [Glen]: That he [Severs] killed a fool. . . . . [State]: And tell the jury what he [Severs] told you the circumstances were when they first saw this boy and how they eventually got him. [Glen]: They just got him. Following the above, the State continued for the next three pages of the record to ask Glen questions about what Severs told him concerning the kidnapping and murder of Whitworth, all without further objection from Daniels. The complained-of testimony was not elicited until after those three pages of questioning, well after Daniels had made his hearsay objection. Specifically, Glen then gave the following testimony: [State]: Now you are going to have to speak up. And I will show you your written statement if you would like to, to refresh your memory, but what I want to know, and what this jury needs to know, are the details of what Chase Severs told you that day. Now how did they stop this young man, how did they get the car? [Glen]: Blocked him off at a stop sign. . . . . [State]: Now, when they stopped the car, who did he [Severs] tell you got out of the car and went up to where the young man was? [Glen]: Tony [Daniels]. . . . . [State]: And where did they go, where did he [Severs] tell you they went? [Glen]: [Whitewright] Cemetery. . . . . [State]: Tell this jury what he [Severs] told you happened [sic] when they got to the cemetery, in Whitewright. [Glen]: He said that they all got out, and they were walking in the cemetery, and he said Tony [Daniels] shot him in the back of the neck, and that Chase [Severs] had got the gun and shot him in the cheek and in the forehead, and he said Tony had got the gun and shot him in the arm or something. Similarly, Severs' girlfriend, Jennifer Robertson, gave the following testimony without objection from Daniels: [State]: And when they got to the cemetery, what happened? [Robertson]: [Severs] told me that they got out of the car, [Severs] was in front, the boy was in the middle, and [Daniels] was behind him, and they walked across the field, jumped across some creek, and the gun went off and the boy hit the ground. [State]: The gun went off? [Robertson]: Yeah. [State]: Who had the gun? [Robertson]: [Severs] said [Daniels] did. Like Ethington, Daniels did not object each time inadmissible evidence was offered. See Ethington, 819 S.W.2d at 857. In Ethington, the court held that Texas law requires a party to continue to object each time inadmissible evidence is offered, unless counsel requests a "running" objection or lodges a valid objection outside the presence of the jury to all evidence deemed inadmissible. Id. at 858-59; see Tex. R. App. P. 33.1. In the present case, Daniels failed to ask for a "running" objection or make an objection outside the presence of the jury with regard to Glen's or Robertson's testimony. Accordingly, Daniels failed to preserve error for appellate review. For the reasons stated, we affirm the trial court's judgment. Josh R. Morriss, III Chief Justice Date Submitted: November 14, 2002 Date Decided: December 20, 2002 Do Not Publish 1. Daniels objected to any portion of Bush's testimony that related to statements Severs made concerning the murder of Whitworth.