This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

notes (Rule 101. Title and Scope)

• Traditional conflict-of-law principles prescribe that issues that are strictly procedural in nature are governed by the laws of the forum state, whereas issues that are substantive in nature require an analysis of which state has the most significant relationship with the communication in question. A substantive right is a right to the equal enjoyment of fundamental rights, privileges, and immunities or a right that can be protected or enforced by law. A procedural right is a right that helps in the protection or enforcement of a substantive right. Vega v State (June 26, 2002, No. 337-01)

• Under Texas conflict-of-law principles for determining which state's laws govern admissibility of evid, factors to consider in determining which jurisdiction has the most significant relationship to the case include: 1) where the injury or unlawful conduct occurred; 2) the place where the relationship between the parties is the strongest; 3) the number and nature of contacts that the non-forum state has with the parties and with the transaction involved; 4) the relative materiality of the evidence that is sought to be excluded; and 5) the fairness to the parties. Vega v State (June 26, 2002, No. 337-01)

• Under terms of Rule 101(c), Rule 901 (an evidentiary rule) cannot allow a proponent of evidence to bypass the requirements of 38.22 (a statute). Maldonado v State, 998 S.W.2d 239 (June 30, 1999)

• Because Article 38.36(a) and Rules 404(b) and 403 can be congruously applied as mandated by Rule 101(c), and because grafting an exception into Article 38.36(a) contravenes its plain language, court held that evidence admissible under 38.36(a) may be nevertheless excluded under Rule 404(b) or Rule 403. Consequently, if a defendant makes timely 404(b) or 403 objections, before a trial court can properly admit the evidence under 38.36(a), it must first find the non-character conformity purpose for which it is proffered is relevant to a material issue. If relevant to a material issue, the trial court must then determine whether the evidence should nevertheless be excluded because its probative value is substantially outweighed by the factors in Rule 403. Smith v State, 5 S.W.3d 673 (June 23, 1999)

notes (Rule 102. Purpose and Construction)

• Decisions based upon changes in the rules do not constitute "the overruling of precedent." Granados v State (May 8, 2002, No. 73,525)

• An appellate court reviewing a trial court's ruling on the admissibility of evidence must utilize an abuse-of-discretion standard of review. In other words, the appellate court must uphold the trial court’s ruling if it was within the zone of reasonable disagreement. In addition, the appellate court must review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Weatherred v State, 15 S.W.3d 540 (Mar. 29, 2000)

• The Rules of Evidence provide specific and general directives and are meant to work in conformity. Should an inconsistency arise, it should be removed by reasonable construction. General rules are not meant to supercede specific rules. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

admitting evidence over objection (Rule 103. Rulings of Evidence)

• If, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the state, this error must have been preserved by a proper objection and a ruling on that objection. A proper objection is one that is specific and timely. Further, with two exceptions, the law requires a party to continue to object each time inadmissible evidence is offered. The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury. This second exception is found in Rule of Evidence 103(a)(1). Geuder v State (September 10, 2003, No. 1005-02)

• A true motion in limine merely requests that party not be permitted to mention certain evidence to the jury until a hearing has been held outside presence of the jury to determine its admissibility. Geuder v State (September 10, 2003, No. 1005-02)

• Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility." Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question. And so it is that appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. This "raise it or waive it" forfeiture rule applies equally to the state and defendant. Martinez v State (December 11, 2002, No. 344-02)

admitting evidence, issue not preserved (Rule 103. Rulings of Evidence)

• Trial objection that photos were inadmissible fruits of an illegal arrest did not preserve complaint on appeal that photos were inadmissible fruits of statements taken in violation of def's right to counsel. Swain v State (November 2, 2005, No. AP-74,854)

• No reversible error presented by claim was error to admit testimony under excited utterance exception where record showed eight separate occasions during guilt stage when same evid was admitted without objection. Lane v State (December 8, 2004, No. PD-1122-03)

• Any error in admitting testimony* that witness was in fear of his life was cured when def failed to object when witness later testified to same. Valle v State (July 2, 2003, No. 74,137)

• A proper objection is one that is specific and timely, and, with two exceptions, requires a party to continue to object each time inadmissible evidence is offered. The two exceptions require counsel to either (1) obtain a running objection, or (2) request a hearing outside the presence of the jury. Martinez v State (February 12, 2003, No. 0185-02)

• It was error for court of appeals to rely on Rule 103(a)(1) as basis for concluding def preserved for review a challenge to admission of gang-related evid. That rule excuses the requirement to repeat objections in front of the jury if a proper objection has been made outside the jury's hearing. Def objected to two photos at a bench conference, so under Rule 103(a)(1) it was not necessary to repeat the objections to the photos once they were admitted in front of the jury. But def was still required to object to all other gang-related evidence. Martinez v State (February 12, 2003, No. 0185-02)

• Nothing preserved for review on claim of admission of improper victim impact testimony where no trial objection was made on that basis. Guevara v State (January 15, 2003, No. 74,141)

• State may not argue for the first time on appeal that 20.17 did not apply to def's statement and that, therefore, the trial court abused its discretion in suppressing the statement. The trial court cannot be held to have abused its discretion merely by ruling on the only theories of law presented to it. Martinez v State (December 11, 2002, No. 344-02)

• Nothing preserved for review where was no trial objection to testimony on future dangerousness issue at punishment stage in capital case, that there is a correlation between ethnicity and recidivism. Saldano v State (March 13, 2002, No. 72,556)

admitting evidence, issue preserved (Rule 103. Rulings of Evidence)

• Where hearing on the motion to suppress and the jury trial were conducted in a unitary proceeding, def preserved error by re-urging his motion to suppress at the introduction of the physical evidence seized. Cause remanded to court of appeals to address merits of admissibility of evid. Garza v State (January 28, 2004, No. 1691-02)

• Def preserved complaint on admission of evid where def filed motion to suppress and trial judge told def that he would hear the evidence as it was presented before the jury, commenting that, "[i]f I grant your motion, [the jury is] not going to have any evidence, so they would be subject to an instructed verdict ... and if I deny your motion [to suppress], it doesn't make any difference, the jury gets to hear it all anyway." The judge further stated, "any other ruling that either side wishes to make, then you will be instructed to approach the bench outside the presence of the jury and then we'll make a determination as to that." Though the general rule would require def to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed def to wait until all the evidence was presented before he obtained any ruling from the judge. From these comments, it is clear that any additional attempt by def to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told def that he would not rule on the motion until the jury had heard the evidence. Def was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the state's presentation of evidence, and not sooner. Cause remanded to court of appeals to address merits of issue. Garza v State (January 28, 2004, No. 1691-02)

• Def preserved objection under procedure of Rule 103(a)(1), where record* showed trial court's adverse ruling outside presence of jury on admissibility of def's prior convs for impeachment purposes in face of specific and timely objection based on Rule 609(f). Under Rule 103(a)(1) it was not necessary for def to repeat objection in presence of jury. It was error for court of appeals to rule that def only obtained a ruling on a motion in limine, which does not preserve error. Def's request - made outside the presence of the jury, after the State had rested, and immediately before def testified - sought a definitive final ruling on a timely and specific motion to exclude evidence. Geuder v State (September 10, 2003, No. 1005-02)

• PDR reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997), on preservation of objection to impeachment, and on merits of allowing impeachment by proof of pending charges over objection based on rules 608(b) and 609. Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

• Def preserved for review issue of whether was error to allow state to impeach defense witness with questions about pending felony charges against witness, where def adopted objection* made by witness' attorney, asserting witness' privilege against self incrimination, pointing out the charges were pending and witness had not been convicted, which was suff to apprise trial court that def was relying on both TRCrE 608(b) and 609. (reversing Dixon v. State, 955 S.W.2d 898 (Tex.App.--Fort Worth 1997)) Dixon v State, 2 S.W.3d 263 (Dec. 16, 1998)

excluding evidence (Rule 103. Rulings of Evidence)

• The trial court need never sort through challenged evidence in order to segregate the admissible from the excludable, nor is the trial court required to admit only the former part or exclude only the latter part. If evidence is offered and challenged which contains some of each, the trial court may safely admit it all or exclude it all, and the losing party, no matter who he is, will be made to suffer on appeal the consequences of his insufficiently specific offer or objection. Reyna v State (June 29, 2005, No. PD-0255-04)

• When evidence which is partially admissible and partially inadmissible is excluded, a party may not complain upon appeal unless the admissible evidence was specifically offered Reyna v State (June 29, 2005, No. PD-0255-04)

• Although the Rule of Evidence 103(a) makes clear that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling, that is not always suff. Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Reyna v State (June 29, 2005, No. PD-0255-04)

• State was estopped from claiming defense exhibits (judgments of convictions of victim whose statements had been admitted against def by testimony of police officer who questioned her) were inadmissible for failure to show identity of person, where state had tendered to def the victim's rap sheet without qualification in response to def's Brady motion, and def then reasonably relied on the rap sheet to acquire the defense exhibits. It was error for appeals court to rule exhibits were inadmissible for failure to show identity. Cause remanded for reconsideration of issue. Arroyo v State (March 19, 2003, No. 1670-01)

• In determining validity of trial court’s decision to exclude evidence, appeals court examines the record as it appeared at the time of the trial court’s ruling. Def could not rely on evid elicited during hearing on motion for new trial. Hoyos v State, 982 S.W.2d 419 (Nov. 18, 1998)

excluding evidence, issue not preserved (Rule 103. Rulings of Evidence)

• Nothing preserved for review on claim that trial court erred in refusing to permit def to take the stand in the punishment phase of capital murder trial for the limited purpose of raising mitigation issues, where def failed to testify at trial. Jackson v State, 992 S.W.2d 469 (April 28, 1999)

excluding evidence, issue preserved (Rule 103. Rulings of Evidence)

• Def preserved for review his claim that was error for trial court to rule def would waive his privilege against self incrimination if he introduced his voice exemplar, even though he never offered the exemplar, where was clear what def sought to introduce, which was physical evid and state had no right to cross-examine def. Saron v State (October 1, 2003, No. 1015-02)

outside hearing of jury (Rule 103. Rulings of Evidence)

• Bench conference* at which counsel stated objection to testimony of victim witness and court overruled objection was a hearing outside the presence of the jury and satisfied Texas Rule of Evidence 103(a). No merit to state's contention issue was not preserved for review. Haley v State (October 5, 2005, No. PD-1531-03)

fund error (Rule 103. Rulings of Evidence)

• While the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error (TRAP 33.1), pursuant to Texas Rule of Evidence 103(d), appeals court is authorized to "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Some rights are widely considered so fundamental to the proper functioning of adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. Blue v State (December 13, 2000, No. 1254-99)

• Comments* of trial judge in instant case could not be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting his right to a fair trial. The comments of the trial judge, which tainted def's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Def's failure to object to the trial judge's comments did not waive error. Blue v State (December 13, 2000, No. 1254-99)

rules (Rule 104. Preliminary Questions)

• Holding of McVickers v State, 874 S.W.2d 662 (Tex. Crim. App. 1993), that the rules of evidence apply at a hearing on a motion to suppress evidence, was based on the language of Rule 1101(d)(4), which is not included in current rules of evidence. The controlling rule now is 101(d)(1)(A), which in turn provides that Rule 104 controls. Because suppression hearings involve the determination of preliminary questions concerning the admissibility of evidence, the language of the current rules indicates that the rules of evidence (except privileges) no longer apply to suppression hearings. McVickers is not overruled; it simply is no longer controlling. Granados v State (May 8, 2002, No. 73,525)

105(a) admission of evid (Rule 105. Limited Admissibility)

• In pros for sexual assault of a child and indecency with a child, where conv under second count was reversed for erroneous admission of pictures, def failed to show spillover effect to first count from admission of pictures as to charge under second count, where jury charge* clearly restricted use of pictures to second count and def failed to rebut presumption that jury followed charge. The charge was clear, determinative, and unambiguously limited the consideration of the pictures to the indecency charge. It even referred to "count two" of the indictment, which was the charge for indecency with a child, and made clear that the pictures were to be used "for no other purpose" than "count two." The presumption that jury followed the charge is refutable, but def must rebut the presumption by pointing to evidence that the jury failed to follow the trial court's instructions. In instant case, def failed to rebut the presumption that the jury did not follow the trial court's instruction. In light of the trial court's proper instruction regarding the use of the evidence and def's failure to rebut the presumption that the jury followed that instruction, appeals court presumed the jury did not consider the nude pictures in their determination of guilt on the charge of sexual assault of a child. Therefore, def failed to demonstrate that there was any spillover effect resulting from the admission of the pictures. Thrift v State (November 2, 2005, No. PD-0860-04)

• It was not error to deny limiting instruction for same transaction contextual evidence; such evid does not require a limiting instruction. Castaldo v State (June 26, 2002, No. 189-01)

• No merit to contention error resulted when state reoffered at punishment stage, testimony of two jail psychiatrists who interviewed def while he was in custody, which def had objected to at guilt stage as violation of Fifth & Sixth Amendment rights. Assuming arguendo that consideration of this psychiatric testimony in the punishment phase of trial created some sort of Fifth or Sixth Amendment problem, the burden was on def to timely request an appropriate limiting instruction. Def did not request a limiting instruction at the time the trial court admitted the evidence, nor did he request one during the punishment phase at time state reoffered all guilt phase evidence. Ripkowski v State (November 7, 2001, No. 73,590)

• The language of Rule 105(a) does not require an objection to the admission of evidence before requesting a limiting instruction on that evidence. Rule 105(a) requires only a defendant to "request" that the trial court "restrict the evidence to its proper scope and instruct the jury accordingly." Therefore, court disavowed any language in Garcia v. State, 887 S.W.2d 862 (Tex. Crim. App. 1994), that requires an objection to the admission of evidence before a limiting instruction can be requested. But court declined to overrule the holding in Garcia that requires a request for a limiting instruction at the admission of the evidence. That rule of law has not proven to be unworkable or confusing, and it does not unnecessarily burden the system. It does not produce inconsistency in the law; rather, it provides clear guidelines under which limiting instructions must be requested. Hammock v State (May 23, 2001, No. 213-00)

• If the jury is required to consider evidence in a limited manner, then it must do so from the moment the evidence is admitted. Allowing the jury to consider evidence for all purposes and then telling them to consider that same evidence for a limited purpose only is asking a jury to do the impossible. If a limiting instruction is to be given, it must be when the evidence is admitted to be effective. Hammock v State (May 23, 2001, No. 213-00)

• It was not error to deny request for jury charge limiting consideration of extraneous offense evid where no limiting instruction was requested at time evid was introduced. Although the evid would have been subject to a limiting instruction if one had been properly requested, because def did not request a limiting instruction at the first opportunity, it was admitted for all purposes. The first opportunity to request a limiting instruction in instant case was contemporaneous with admission of the evidence: at that point it was apparent that a limiting instruction was proper. (Def's argument that, in some cases, a defendant will not know whether certain evidence is subject to a limiting instruction until it becomes apparent later in the trial, was not addressed because in instant case it was apparent that a limiting instruction was warranted at the time the evidence was admitted.) Since the testimony was considered for all purposes by the jury, a limiting instruction on the evidence in the charge was not warranted. No merit to def's contention that his right to have a limiting instruction in the court's charge is based on a ground independent of Rule 105(a), in that Rule 105(a) enables a party to request and receive a limiting instruction at the time the evidence comes in, and CCP Article 36.14 enables a party to request and receive a limiting instruction in the court's charge. Because the evidence was admitted without limitation, a limiting instruction was not within the applicable law of the case. Hammock v State (May 23, 2001, No. 213-00)

• It was not error to deny requested limiting instruction to the jury regarding extraneous offenses introduced at the guilt/innocence stage of trial, where def was on trial for two of murders committed at same time as three other murders, and def sought limiting instruction regarding the other three. Evidence of the three additional killings from that evening was same transaction contextual evidence and, as such, admissible without a limiting instruction. Such extraneous offenses are admissible to show the context in which the criminal act occurred. This evidence is considered "res gestae," under the reasoning that events do not occur in a vacuum, and the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that it may realistically evaluate the evidence. When this evidence of extraneous offenses is used to prove a main fact in the case, an instruction limiting the jury's consideration of this evidence is generally not required. Wesbrook v State (September 20, 2000, No. 73,205)

• Def procedurally defaulted any claim for a limiting instruction, where the only time he ever requested a limiting instruction was at pretrial hearing on Rule 403 objection, at which trial court did not appear to make a final ruling, but appeared to reserve the Rule 403 question, making a request for a limiting instruction premature. The trial court’s action at the hearing appeared to be in the nature of a ruling on a motion in limine, which does not preserve error. Also, even if the trial court’s ruling were interpreted as a final ruling upon the admissibility of the evidence, def did not obtain an adverse ruling upon his request for a limiting instruction. Also, even if the trial court’s response were interpreted as a favorable ruling on def's request for a limiting instruction, def was required to object when the circumstances appeared to show that the trial court’s ruling was not being enforced. Also, def’s request was not specific enough as to time; he simply asked for an instruction “when the time is appropriate” without indicating what he believed the appropriate time to be. The trial court did include a limiting instruction in the jury charge, which is one appropriate time for the instruction. Def did not express a clear desire for an instruction to be given contemporaneously with the admission of the evidence. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

• It was not error to refuse to instruct jury, at the time the evidence was offered, on the burden of proof for unadjudicated offenses and bad acts introduced at punishment stage of capital murder trial. Rule 105 addresses parties and purposes; the rule does not address burdens of proof. Jackson v State, 992 S.W.2d 469 (April 28, 1999)

rules (Rule 107. Rule of Optional Completeness)

• On claim by def that was error for trial court to rule that simply asking witness a question for impeachment purposes would render entire videotaped interview of extraneous offenses admissible under rule 107, no merit to state's contention that def failed to preserve error for review because he never actually called witness to testify and tape was never played for jury. Requirements of rule 33.1 were satisfied; court distinguised cases relied on by state, which held that def must actually testify in order to preserve error on ruling allowing state to impeach def with prior convs. Sauceda v State (March 10, 2004, No. 0612-02)

not error to admit balance for completeness (Rule 107. Rule of Optional Completeness)

• It was not abuse of discretion to allow witness to testify to conversation witness had with accomplice, over hearsay objection, where def first introduced part of conversation, so state could introduce rest under Rule 107. Wright v State (June 28, 2000, No. 73,004)

error to admit (Rule 107. Rule of Optional Completeness)

• It was error for trial court to rule that simply asking witness X a question for impeachment purposes rendered an entire videotaped interview of c/w, including evid of extraneous offenses, admissible under the rule of optional completeness. As a witness to the interview, X could have impeached c/w's credibility by testifying to a single, narrow matter. Because the information on the videotape was in no way necessary to make that testimony fully understood, as required by Rule 107, the videotape would not have been iadmissible. Sauceda v State (March 10, 2004, No. 0612-02)

not error to exclude (Rule 107. Rule of Optional Completeness)

• It was not error to refuse to allow def to cross examine state's witness with "have you heard" questions about offenses committed by murder victim, over contention state had opened the door in witness' testimony* on direct examination showing victim's good character. Even though direct examination testimony was character evid, it was not abuse of discretion to exclude the particular questions def wanted to ask, where state’s questions were solely related to victim’s character as demonstrated by his conduct at the store where murder occurred, while def’s questions sought to elicit evidence regarding his character in general. Def did not show how victim’s criminal history or character were relevant to any issue in the case. To admit evidence regarding victim’s generally unlawful conduct might reasonably have been viewed as presenting a danger of confusing the jury, which outweighed the questionably probative rebuttal value such evidence may have had. Fuentes v State, 991 S.W.2d 267 (April 28, 1999)

presenting issue: curative admissibility (Preserving Evidence Issues)

• Court considered history of use of the term “curative admissibility," and disapproved its mistaken use in prior opinions of Court of Criminal Appeals [listed at footnote 2] and opinions of the courts of appeals [listed in footnote 3] in which the term had been misapplied in cases in which error in admitting evidence had been held to be harmless (or “waived”) because similar evidence was introduced without objection. But the court expressly did not thereby imply that the misnamed doctrine was unsound or misapplied in those cases. Leday v State, 983 S.W.2d 713 (Dec. 16, 1998)

curative admissiblity (Preserving Evidence Issues)

• Court considered history of use of the term “curative admissibility," and disapproved its mistaken use in prior opinions of Court of Criminal Appeals [listed at footnote 2] and opinions of the courts of appeals [listed in footnote 3] in which the term had been misapplied in cases in which error in admitting evidence had been held to be harmless (or “waived”) because similar evidence was introduced without objection. But the court expressly did not thereby imply that the misnamed doctrine was unsound or misapplied in those cases. Leday v State, 983 S.W.2d 713 (Dec. 16, 1998)

same facts shown by other evidence (Preserving Evidence Issues)

• Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. This rule applies whether the other evidence was introduced by the defendant or the State.

  When a defendant offers the other evidence, there are three exceptions to this rule of waiver:

  1. no waiver when def’s testimony, which constituted other evidence of the fact that was proved over def’s objection, was impelled by the state’s introduction of evidence that was obtained in violation of the law.

     The reason for this exception is that if the defendant’s decision to testify was made in order to overcome the impact of such evidence, the testimony is tainted by the same illegality as was the prosecution’s evidence.

     This exception extends to all evidence subject to exclusion under CCP article 38.23. To remove itself from this exception, the State has the burden to show that its illegal action did not impel the defendant’s testimony. In determining whether the State met its burden the following factors are relevant:

     (1) evidence that defendant’s counsel would not have called the client to the stand but for the overruling of the defense objection to illegally obtained evidence;
     (2) even if defendant’s counsel would have called the defendant to the stand, evidence that the client would have testified in the same manner but for the introduction of that evidence;
     (3) whether the State introduced other evidence of guilt, and the strength of that evidence; and,
     (4) whether there is other evidence, aside from the evidence objected to, that would have induced the defendant to testify in the same manner.

  2. the harmful effect of improperly admitted evidence is not cured by the fact that the defendant sought to meet, destroy, or explain it by introducing rebutting evidence.
  3. a defendant may respond to “evidence of an extraneous offense” admitted over objection. Maynard v. State, 685 S.W.2d 60, 66 (Tex. Cr. App. 1985).
  Leday v State, 983 S.W.2d 713 (Dec. 16, 1998)

instructed to disregard (Preserving Evidence Issues)

• It was not abuse of discretion to deny motion for mistrial, and instruction to disregard was suff to cure any harm from question asked witness, "Did you know back on October 1st of 1996 that Veronica's [murder victim's] phone was blocked from receiving phone calls from your phone?" Martinez v State, 17 S.W.3d 677 (May 17, 2000)

• It was not abuse of discretion to deny motion for mistrial, and instruction to disregard was suff to cure any harm from testimony* showing that murder victim had hung up phone on def. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

role of appeals court (Preserving Evidence Issues)

• In determining whether def was harmed by denial of mistrial after improper admission of prosecutor's testimony court balanced three factors: (1) severity of the misconduct (the magnitude of the prejudicial effect), (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Ramon v State (December 15, 2004, No. PD-2030-03)

• Trial court's evidentiary ruling is reviewed for an abuse of discretion. As long as the judge's ruling is within the zone of reasonable disagreement, it will not be overturned. Lopez v State (October 2, 2002, No. 1742-01)