Killebrew v. State

• Decision Date: 15 December 1987
• Docket Number: No. 6-87-001-CR,6-87-001-CR
• Citation: 746 S.W.2d 245
• Parties: Jessie Wayne KILLEBREW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 245

746 S.W.2d 245

Jessie Wayne KILLEBREW, Appellant, v. The STATE of Texas, Appellee.

No. 6-87-001-CR.

Court of Appeals of Texas Texarkana.

Dec. 15, 1987.

Rehearing Denied Jan. 20, 1988.

James M. McCoy, Mobley, Green & Harrison, Longview, for appellant.

John Tunnell, Asst. Dist. Atty., Longview, for appellee.

CORNELIUS, Chief Justice.

Jesse Wayne Killebrew was convicted of aggravated assault. After enhancement for prior offenses, punishment was set by the jury at forty years confinement.

In three points of error, Killebrew contends that the trial court erred in admitting into evidence an exhibit containing information about inadmissible extraneous offenses; in allowing the victim to testify at the punishment stage of the trial; and in returning jurors selected for service in this case to the panel for possible jury service in other cases. We overrule these points and affirm the judgment.

During the punishment phase of the trial, the State offered into evidence three "pen packets" marked State's Exhibits 8, 8-A and 9. Killebrew assigns error only as to Exhibit 8-A, contending that it contains inadmissible references to two prior burglary offenses. He argues that evidence of the offenses was not admissible because there was no final conviction in either of them.

The State contends that because Killebrew did not make a timely and specific objection to Exhibit 8-A on the ground that it contained records of inadmissible extraneous offenses, no error was preserved.

The State offered Exhibits 8, 8-A and 9 simultaneously. As to Exhibit 8, defense counsel asserted "the earlier objection ... as to the case law cited and the basis for the objection earlier made." He also objected to Exhibit 8 on the ground that it contained "extraneous offenses not otherwise admissible and not named in the Indictment." The objections were overruled and Exhibit 8 was admitted for record purposes only but not for consideration by the jury. Regarding Exhibit 9, defense counsel stated to the court, "As to 9, same objection." The court again overruled the objection and noted that all three exhibits were received. Thereafter, the State's attorney began to read to the court a summary of Exhibit 8-A. Defense counsel interrupted and asked, "May I have a running objection so I don't have to interrupt her, Your Honor?" The court replied, "Yes, sir." The record reflects no more specific objection to Exhibit 8-A.

During the guilt/innocence phase of the trial, Killebrew did submit written objections to the various pen packets which the State indicated it would offer into evidence during the punishment phase. Those objections included objections to Exhibit 8-A on the ground that it contained extraneous offenses. At the commencement of the punishment phase of the trial, Killebrew's counsel announced ready subject to reassertion of the objection to admission of the three pen packets which he made outside the presence of the jury in the guilt/innocence phase. He specifically stated:

[W]e ... would ask the Court to recognize, without the necessity of me fully stating with particularily (sic), the earlier objection, and the grounds and support therefor, that such objection as earlier cited into the record is not deemed after the verdict of the Jury at the guilt or innocence stage to be reasserted verbatim in toto at this time on the record prior to offer and tender of proof by the State.

Objections must be timely and must state specific grounds if the grounds are not apparent from the context. Tex.R.Crim.Evid. 103(a)(1). In most circumstances, a generalized "running objection" will not preserve error. Goodman v. State, 701 S.W.2d 850 (Tex.Crim.App.1985). The purpose of requiring specific and timely objections is to give the trial court the opportunity to recognize the inadmissible evidence, if any, in the exhibit being offered, and to exclude it while admitting the remainder of the exhibit.

We conclude that defense counsel's preliminary remarks at the beginning of the punishment phase did not serve to cure the deficiency in the "running objection" used later in the trial to object to Exhibit 8-A. The exhibit is a twelve-page document, and any objections to it should have been addressed to the specific portions considered inadmissible and should have had the reasons for the inadmissibility clearly stated. This would have given the State an opportunity to cure any error in the document's being offered into evidence.

Killebrew next contends that the trial court erred in admitting testimony by the victim of the assault, Kim Fletcher, during the punishment stage of the trial. Fletcher testified that she was afraid to be home alone or to drive alone, that she was scared every time someone looked at her, that she gets real nervous, that she thinks about the crime every day even though eight months have since elapsed, and that after the assault she had to pay the part of her medical bills not covered by insurance.

Killebrew contends the evidence was improper under the holding of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). In that capital murder case, the state introduced a written Victim Impact Statement made by the victims' family members. The Supreme Court held that this practice violated the Eighth Amendment to the United States Constitution because the statement gave the jury information about the personal characteristics of the victims, the emotional impact of their deaths on their family, and the family members' characterizations of the crimes and of the defendant, and that this information created an unacceptable risk that the jury would impose the death penalty in an arbitrary manner. The court, however, limited its ruling to capital cases, and noted that facts about the victim might be relevant in a noncapital...