De Grate v. State

ODOM, Judge

(concurring).

I concur in the results reached in this case only because the record demonstrates the antagonism between the positions of appellant and his co-defendant on behalf of whom the improper question was asked. This Court should decide issues such as this one on a case by case basis, and in each instance where the alleged error was injected by a co-defendant take a long look to ascertain whether there has been an attempt to “create built-in reversible error [at] the discretion of the defendants.” DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962), concurring opinion at 156. Where, as in Rivello v. State, Tex.Cr.App., 476 S.W.2d 299, the trial court refuses to permit action by one defendant which would be prejudicial and antagonistic toward a co-defendant or where the trial court takes prompt action to correct improper action by a joint defendant and is successful in minimizing possible harm, as should have been done here, we would be confronted by a different question, and perhaps a different standard would apply.

With these qualifications, I concur in the results.