Patrick Fisher Tunstall v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-04-480 CR ____________________

PATRICK FISHER TUNSTALL, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Court No. 92615

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MEMORANDUM OPINION

A jury convicted Patrick Fisher Tunstall of felony possession of marijuana, as a repeat felony offender. He was sentenced to three years in prison and assessed a $500 fine. Citing Tex. R. Evid. 402, 403, and 404(b), Tunstall argues the trial court erred in permitting the arresting officer to testify that Tunstall told the officer during the traffic stop about Tunstall's prior arrests. At trial, the officer testified about the traffic stop as follows:

Q. [Prosecutor]. Well, did you go back and confront Tunstall with the fact that he was being less than honest with you?

A. [Officer]. Yes, sir, I [did].

Q. Did he offer any explanation for that?

A. Yeah. He said that the reason he didn't tell me -- Mr. Tunstall has been arrested for a number of the things including some aggravated battery charges and --

Defense counsel promptly objected, and the trial court overruled his objections.

However, the videotape of the traffic stop was also admitted into evidence, and the videotape included appellant's own statement of his prior arrests. Before the videotape was shown, appellant objected "that at this time until he identifies the voices on the video this would be inadmissible." The trial court admitted the videotape. The prosecutor then elicited from the officer testimony identifying the voices on the tape. Without further objection from trial counsel, the videotape was later played for the jury. On the videotape, the defendant can be heard telling the officer that the defendant had prior arrests for battery and aggravated battery.

Under these circumstances, no reversible error is presented by the arresting officer's testimony. See Lane v. State, 151 S.W.3d 188, 192-93 (Tex. Crim. App. 2004). When the same evidence comes in elsewhere without appellant's objection -- in this case without an objection under Rules 402, 404(b), or 403 to the extraneous offense evidence -- any error in the admission of the evidence "is cured." Lane, 151 S.W.3d at 193 (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)).

Appellant's issue is overruled. The conviction is affirmed.

AFFIRMED.

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DAVID GAULTNEY

Justice

Submitted on June 28, 2005

Opinion Delivered August 10, 2005

Do Not Publish

Before Gaultney, Kreger, and Horton, JJ.