Kenneth Neuman v. State ( 1997 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON STATE'S MOTION FOR REHEARING

NO. 03-96-00417-CR

Kenneth Neuman, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 0961457, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

PER CURIAM

In its motion for rehearing, the State argues for the first time that appellant waived the
erroneous admission of the tape recorded threat because the same evidence was admitted without
objection. Specifically, the State contends that the error was waived when Cynthia Neuman testified
without objection that appellant made numerous threatening telephone calls.
The State relies on Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996). In that
case, the defendant contended the trial court erroneously admitted a photograph of him wearing a long,
dark coat taken at the time of his arrest. The Court of Criminal Appeals held that the defendant waived
any error when he failed to object to testimony by the arresting officer describing appellant's appearance,
including the coat, when arrested. The State also cites Johnson v. State, 803 S.W.2d 272, 291 (Tex.
Crim. App. 1990). In that case, the defendant objected to the admission of a transcript of grand jury
testimony, but did not object earlier in the trial when the transcript was read to the jury. The court held that
any error in the admission of the transcript was waived.
In this cause, unlike Ford and Johnson, the substance of the challenged exhibit was not
admitted in another form without objection. Cynthia Neuman testified that appellant made threatening
telephone calls to her, but she did not relate the specific content of the calls. In particular, she did not testify
that appellant told her, "Say your prayers, bitch, cause you're fucking dead." Appellant's failure to object
to the general, nonspecific testimony regarding threatening calls did not waive his objection to the
introduction of the recorded threat.
The motion for rehearing is overruled.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
State's Motion for Rehearing Overruled
Filed: September 25, 1997
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