Odum v. State , 1975 Tex. Crim. App. LEXIS 1203 ( 1975 )

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge

(dissenting).

In the opinion on the original submission, this Court reversed the conviction on the ground that the prosecutor asked an improper question of the appellant’s wife.

The State contends that the appellant failed to preserve error in that (1) he did not ask the court to instruct the jury not to consider the answer; (2) that the same testimony got before the jury without objection; and (3) that the question was proper in view of the prior examination of the witness.

The sufficiency of the evidence is not challenged. The record reflects that the body of the deceased was found in a ditch. He died as a result of a stab wound. The deceased, appellant and Frank Fales had been drinking beer and visiting pool halls. The deceased had some large bills on his person. A short time after the homicide, appellant’s wife saw him at a lounge. While Helen Odum, appellant’s wife, was testifying at the guilt stage of the trial, she testified on direct examination as follows:

“Q. (Mr. Kolius, Defense Counsel): All right. When you got out to the Outsider Lounge, did you notice anything that was unusual in the attitude of your husband?

“A. He acted scared.

“Q. Well, could you describe that to the jury, please?

“A. Well, just real white all over and kind of scared to open his mouth.

“Q. How does he act around his uncle and around other people?

“A. Definitely not that way.

U * * *

“Q. How does he act?

“A. Just normal.

“Q. Could you tell the jury what normal is, please?

“A. He would kid around and pretty good natured, and he wouldn’t let anyone say anything he thought was wrong in front of me.

“Q. Alright, and was his conduct then, that afternoon, unusual?

“A. Very unusual.”

On cross-examination she was asked the following:

“Q. (Mr. Curtis, District Attorney): Now, in your testimony to Mr. Kolius, if I understand it correctly, he asked you how Frankie acted around you and others, whether he was good-natured, cranky or what, and you answered to him he was a good-natured sort of fellow that always tried to get along with others and good-natured around other people; isn’t that what you said on direct?”

She answered twice that the matter stated in the question was true. When the question was asked if she was present when the appellant cut the boy, appellant’s counsel objected that it was evidence being introduced on an extraneous offense without a proper predicate; that the asking of the question was a direct assertion on the part of the prosecutor. He then asked for a mistrial and stated that the instruction to the jury would be useless.

Ordinarily a reversal is not required when the error could have been cured by an instruction to the jury and the record reflects no request for such an instruction. See Daley v. State, 491 S.W.2d 932 (Tex.Cr.App.1973); Dorsey v. State, 450 S.W.2d 332 (Tex.Cr.App.1969), and Blassingame v. State, 477 S.W.2d 600 (Tex.Cr.App.1972).

It has also been held that such an instruction cures any error when other testimony of similar import is admitted without objection as was done in this case. See Buckelew v. State, 431 S.W.2d 13 (Tex.Cr.App.1968).

Assuming that it was improper to ask the question of Helen Odum concerning appellant’s cutting other people, there was other testimony of substantially the same facts admitted without objection. Frank Fales, an uncle of appellant, testified on cross-examination without objection and the State read before the-jury a statement given by him. A pertinent part of the statement is as follows:

“When this guy and Frankie were fighting in the ditch, I did not see Frankie with a knife, but I do know for a known fact that Frankie uses a knife when he gets into a fight and has cut •people before. At the police station I was shown some pictures of that man and was told that the pictures they showed me was the pictures of the same man that Frankie Odum fought with and probably killed, if he was stabbed, and Frankie has cut people without killing them.”

This shows that appellant used knives in fights and had cut people before and had cut people without killing them.

Since substantially the same facts were read before the jury without objection, any improper admission of the evidence by Helen Odum concerning appellant’s having cut people was rendered harmless. Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973).

From the testimony, not only was Helen Odum testifying to appellant’s conduct on a particular time but was comparing it with the way she contended appellant normally acted at other times. The question, “How does he (appellant) act around his uncle and other people?”, was not limited to a particular time but covered his actions generally and was not limited to any particular time. She answered that he acted just normal. She had just testified that he had “acted scared” at the Outsider Lounge. Counsel for appellant was asking the questions to elicit from Helen Odum that appellant’s conduct on a specific afternoon was unusual from his general conduct. The logical import from the testimony obtained on direct examination was that on a particular time the appellant’s conduct was not normal and was very unusual and the reason that he was not normal was that he was the type of person who was normally and usually a person who would kid around with other people and was good-natured toward other people. She was then asked if appellant had “cut a kid’s throat at McDonald’s”. She admitted that she was present at the McDonald’s incident and this contradicted her testimony that he was good-natured.

Her testimony was also geared toward persuading the jury to find appellant not guilty because he had good character and law-abiding habits. This Court in Childs v. State, 491 S.W.2d 907 (Tex.Cr.App.D73), wrote:

“Appellant may not have a witness testify about his good character traits but avoid ‘placing his reputation in evidence’ simply by not specifically asking whether appellant enjoyed a good reputation in the community.”

For each of the three contentions the motion for rehearing should be granted and the judgment should be affirmed.