Williams v. State

OPINION

ON APPELLANT’S MOTION FOR REHEARING

ROBERTS, Judge.

Appellant’s motion for rehearing was granted in order to examine more closely some of the objections to the testimony of Officer Sewell. After further considering these grounds, we reverse the conviction and remand the ease for a new trial.

At the outset, we note that Officer Sewell’s testimony was inadmissible for any purpose. His entire testimony was hearsay and most of it was designed to bolster the unimpeached identification testimony of the two complaining witnesses. Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965). It is true, however, that appellant never urged the bolstering objection at trial and that many of his hearsay objections were improperly lodged.

But we conclude that error was preserved on appellant’s ground of error # 7. The record shows the following transpired:

“MR. BOOTH [Prosecutor]: Was this identification of John Willis Williams [appellant] a positive identification?
“THE WITNESS: Yes, sir, it was.
“MR. QUINN [Defense Counsel]: Your Honor, that calls for complete hearsay as to the defendant.
“THE COURT: Sustained.
“MR. QUINN: The picture would be the best evidence, and we ask that the jury be instructed not to consider the testimony.
“THE COURT: You will not consider the question for any purpose in your deliberations.
“MR. QUINN: And we ask again for a mistrial on the basis of the implications of the questions and the answers.
“THE COURT: Denied.
“MR. QUINN: As all being hearsay.”

On original submission, this Court said that the objection on appeal that the testimony amounted to “hearsay bolstering” differed from the objection at trial “on the basis of the implications of the questions and answers.” Yet a closer reading of the record suggests that the “implications of the questions and answers,” followed as it was by counsel’s statement “As all being hearsay” was merely a broadly-worded request for a mistrial because of the hearsay testimony which had already been called to the trial court’s attention. It appears in the familiar litany of the sustained objection, the instruction to disregard, and the denial of a mistrial. And there can be no doubt that such hearsay testimony about prior identifications made by other unimpeached witnesses is inadmissible. Hills v. State, 524 S.W.2d 692 (Tex.Cr.App.1975) (majority and *612concurring opinions); Haughton v. State, 99 Tex.Cr.R. 42, 267 S.W. 715 (1925); Jamail v. State, 99 Tex.Cr.R. 127, 268 S.W. 473 (1925); Hammond v. State, 123 Tex.Cr.R. 590, 60 S.W.2d 235 (1933).

The disposition of ground of error # 8 has also been reconsidered by us. Immediately after defense counsel’s statement “As all being hearsay,” the statement of facts reveals the following to have transpired:

“Q (By Mr. Booth) Did you also show a set of pictures — you testified you showed a set of pictures to Mr. Ray, was this the same photographs or—
“A It was the same group of pictures.
“Q Was Mr. Ray able to make an identification?
“A Yes, sir, he was.
“MR. QUINN: Same objection, Your Honor. May I have the same objection to this line of testimony?
“THE COURT: Your objection to the last question is overruled.
“MR. QUINN: Best evidence and it is hearsay as to this defendant.
“Q (By Mr. Booth) You may answer that question as to whether he identified.
“A He identified the same three people Miss Moore identified, as being Richard Bell, Ray Jackson and the defendant.”

On original submission, this Court said that defense counsel’s “Same objection, Your Honor” was too general to apprise the trial court of appellant’s hearsay objections. Upon reexamining these remarks in context, we conclude the objection was specific enough, especially coming as it did just five lines after appellant’s hearsay objection. We note also that counsel specifically restated his objection immediately following the court’s ruling and before the question was asked again. Since the objection was sufficient to apprise the court of appellant’s hearsay objection, then it surely should have been sustained. Hills, supra; Haughton, supra; Jamail, supra, and Hammond, supra.

Besides Officer Sewell’s, the only other testimony for the State came from the two complaining witnesses, Moore and Ray. And neither of these two had seen appellant for four years prior to the trial. Moreover, defense counsel was able to develop some slight discrepancies in their accounts of the photographic identifications. It is therefore highly likely that Officer Sewell’s hearsay testimony bolstering their in-court identifications was prejudicial to this appellant. We note also that very little of Officer Sewell’s other testimony would have been admissible over the proper objections.

For these reasons, appellant’s motion for rehearing is granted. The judgment is reversed and the cause remanded.