Harlan v. State, 40430

• Decision Date: 07 June 1967
• Docket Number: No. 40430,40430
• Citation: 416 S.W.2d 422
• Parties: Joe Lynn HARLAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 422

416 S.W.2d 422

Joe Lynn HARLAN, Appellant, v. The STATE of Texas, Appellee.

No. 40430.

Court of Criminal Appeals of Texas.

June 7, 1967.

Rehearing Denied July 19, 1967.

Norman Kinne, Dallas (On Appeal Only), for appellant.

Henry Wade, Dist. Atty., Curtis Glover, Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Robbery by Assault with Firearms; the punishment, assessed by the jury at seventy-five (75) years confinement in the Texas Department of Corrections.

All of appellant's grounds of error relate to the admission into evidence of a photograph of appellant, over objection, bearing the markings 'Dallas Police, 56176 12--7--64.'

Appellant first contends that there was no basis for admitting said photograph into evidence.

The record reveals that Clinton O. Nelson, the manager of a Seven-Eleven Ice House in the City of Dallas, identified the appellant in the courtroom as the man who robbed him at gunpoint at the icehouse on August 4, 1965. On such direct examination, no mention was made of any other occasion when Nelson identified the appellant. On cross-examination, the complaining witness's identification of appellant was vigorously attacked. It was elicited from such witness that he had been shown 'mug shots' of the appellant.

On re-direct examination, Nelson was shown State's Exhibit No. One and identified it as the 'mug shot' of the appellant shown to him at the police station. Said exhibit was then admitted into evidence over the appellant's objection.

In Alejandro v. State, Tex.Cr.App., 394 S.W.2d 523, this Court, when confronted with a similar contention as here made, said:

'The record reflects that the photograph was not admitted into evidence until after the appellant, on cross-examination of the prosecuting witness, had gone into the details of his identification of the guilty party from the photograph. Under the record the photograph was admissible on the issue of appellant's identity and the court did not err in admitting it in evidence.'

After having developed such evidence on cross-examination, appellant is in no position to claim the Court erred in admitting mitting State's Exhibit No. One. Reynolds v. State, Tex.Cr.App., 401 S.W.2d 249.

Appellant's first ground of error is overruled.

Appellant next contends that the trial court erred in admitting into evidence State's Exhibit No. One after the State had withdrawn its offer of such exhibit.

The record is not as clear as it could be and demonstrates a common fault of trial lawyers who sometimes forget that a record is being made, and refer to questions, answers, objections, exhibits, etc., as 'this', 'that', 'there', or 'it' without further designation.

A close reading of the disputed record, however, convinces us that the withdrawal of the offer by the State was of a previous question asked to which appellant's objection was...