Richardson v. State
Decision Date | 16 December 1981 |
Docket Number | No. 60481,No. 3,60481,3 |
Parties | Jackie Lee RICHARDSON, Appellant, v. The STATE of Texas, Appellee |
Court | Texas Court of Criminal Appeals |
Robert N. Eames, Denton, court appointed on appeal only, for appellant.
Jerry Cobb, Dist. Atty., and Bruce F. Baxter, Asst. Dist. Atty., Denton, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, W. C. DAVIS and McCORMICK, JJ.
This is an appeal from a conviction of indecency with a child. Following the verdict of guilty, the jury found appellant had been twice previously convicted of felony offenses, and punishment was assessed at life. The sufficiency of the evidence to support the conviction is not challenged.
In his first ground of error, appellant contends the trial court erred in failing to grant a mistrial after the prosecutrix made an unresponsive answer which showed appellant had previously been to the penitentiary. The portion of the cross-examination complained of is as follows:
Appellant contends that the prompt instruction of the trial court was not sufficient to cure any harm, and argues that Salinas v. State, 146 Tex.Cr.R. 358, 175 S.W.2d 253 (1943), dictates a reversal on this ground. In Salinas, the defendant had entered a plea of guilty and did not testify. The record showed the following questions by the prosecutor and the answers of the State's witness:
" A. Yes, sir.
Following objection, the trial court in Salinas instructed the jury to disregard the testimony but denied the defendant's motion for a mistrial. In reversing, this Court noted:
"...
We cannot, however, say that the evil present in Salinas also attends the case at bar. In Salinas, the only function of the jury was to assess punishment following the defendant's plea of guilty. In the instant case, the complained of testimony came before the jury at the guilt stage of the bifurcated trial. Salinas also differs in the fact that the unresponsive answer came on direct examination by the prosecutor whereas in the case before us the answer was to a question posed by defense counsel. In light of the other evidence before the jury, we cannot say that the evidence was so prejudicial that it could not have been corrected by the trial court's prompt instruction to disregard. Generally, an instruction to disregard will cure any unresponsive answer. See Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977). In Thompson v. State, 486 S.W.2d 343 (Tex.Cr.App.1972), a State's witness was asked on cross-examination when he first met the defendant. The answer revealed an extraneous burglary offense. This Court held an instruction to disregard sufficient to cure any error.
It should also be noted that our holding does not imply that we find the action of the trial court to be erroneous. The State argues that the question by appellant of the prosecutrix was an attempt to impeach her credibility as a witness by implying that she should have made immediate outcry at the time of the touching. Citing Adams v. State, 156 Tex.Cr.R. 63, 225 S.W.2d 568 (1949), the State contends the answer in the case at bar to have been responsive, and the testimony of the prosecutrix to have been a proper explanation to show why she made no immediate outcry. Under the circumstances here presented, we cannot say that the answer given by the prosecutrix was improper.
Appellant next contends that the trial court erred in failing to grant his motion for mistrial following the mention by the prosecutrix of a polygraph test. During cross-examination, the attorney for appellant asked for and received a copy of a written statement made by the prosecutrix to the sheriff's department immediately following the offense. Thereafter, the following occurred:
Appellant's attorney immediately objected, the jury was instructed to disregard the mention of the polygraph, and appellant's motion for...
To continue reading
Request your trial-
Nethery v. State
...to disregard, the motion for mistrial was properly overruled. See Wilhoit v. State, 638 S.W.2d 489 (Tex.Cr.App.1982); Richardson v. State, 624 S.W.2d 912 (Tex.Cr.App.1981). Benjamin Hal Nethery, appellant's father, testified at the punishment phase of trial. During cross examination of Neth......
-
Bell v. State
...question and the answer, the latter of which was removed from the jury's consideration, to be reversible error. See Richardson v. State, 624 S.W.2d 912 (Tex.Cr.App.1981); Ridyolph v. State, 545 S.W.2d 784, 787 (Tex.Cr.App.1977) and cases cited therein. Appellant's twelfth ground of error is......
-
Montgomery v. State
...to disregard. Peoples v. State, 928 S.W.2d 112, 116 (Tex.App.Houston [1st Dist.] 1996, pet. ref'd); see, e.g., Richardson v. State, 624 S.W.2d 912, 914-15 (Tex.Crim.App. 1981); Reed v. State, 522 S.W.2d 466, 468 Here, Mr. Holden did not testify that any polygraph examination was given to ap......
-
Gardner v. State
...time in the penitentiary only compounded the harm already evident.Salinas v. State, supra, was distinguished in Richardson v. State, 624 S.W.2d 912 (Tex.Cr.App.1981). The distinctions noted there are equally applicable to this cause.13 It has also been said that "[s]uch error [as appellant ......