*1 ed, identify trust of the trustee was income and the cause is remanded Nevertheless, entry is judgment beneficiaries. clear accordance agreement par- pleadings judgment from the that the with the settlement 59, sought single Tex.R.App.P. trustee also determine in a ties. Rule rights possible adopted lawsuit all judgment
children under the trust. The provided that
the 1963 action therefore contingent
adopted are children remain-
dermen of Tubb trust. Even
identity contingent of trust remaindermen action,
had not in the 1963 been addressed
litigation present issue in the action PEAKE, Appellant, nevertheless be barred because the Orvil John connected remaindermen issue was with v. and, the 1963 cause of action with use Texas, Appellee. STATE diligence, might have tried been No. 932-88. those issues action as well as actually tried. Abbott Laboratories v. Texas, Appeals of Court of Criminal Gravis, (Tex.1971). En Banc. prop- therefore hold that trial court granted summary June erly judgment declaratory judgment adopted children’s ac-
tion, judicata. of res
Accordingly, we conclude that
adopted to bill of children are not entitled declaratory as matter of
review or relief judgment affirm the
law. We therefore appeals. JOFFRION,
Dorothy Inde Cancienne
pendent the Estate of Executrix of Joffrion, Deceased
Olin TATUM; from OF
TEXAS BANK County.
Rusk C-9421.
No. of Texas.
Supreme Court 27, 1990.
June pursuant for dismissal
Joint motion herein on parties filed
settlement granted. 1990 is
June vacat- of the court of *2 tape
tion to a recorded statement polygraph he made to employed a examiner by the City Department of Houston Fire during pretest a tape interview. The pursuant made to an investigation internal department, the fire of which employee, was an veracity to determine the appellant’s denial of the accusations against stepdaughter him made his lead- Blackwell, Kirby Taylor, Bobbi J. Hous- ing During to this conviction. the course ton, pretest confess- interview Holmes, Jr., John B. Atty., Dist. and ed committing offense. Wisner, Cathleen C. Herasimchuk and Vic judge pretrial The trial held hearing a Attys., Houston, Asst. Dist. Robert Hut- appellant’s which al- tash, Austin, Atty., State’s for the State. leged voluntary the statement was not through “trickery, obtained fraud and
deceit and in violation of the Fourth Amendment and the Constitutions of the ON OPINION STATE’S PETITION FOR State of Texas and the United States.” At DISCRETIONARY REVIEW presentation the conclusion of the of evi- MILLER, Judge. dence judge the trial over- Appellant was jury convicted a appellant’s ruled prosecutor motion.2 The indecency with a child. expressed V.T.C.A. Penal then mentioning his intention of 21.11(a)(1). Code The jury also assessed tape in his § statement. After punishment years telling twelve confine jury remarks were ment and a appeal, evidence, fine. On direct prosecutor $5000 informed the error, points raised nine Wood, one of bring he would Tom poly- examiner, was sustained ap graph court of testify appellant “ex- peals, and the court appeals plicitly guilt reversed to this indict- confesse[d] appellant’s conviction and remanded the tape ment” and would also cause for a new trial.1 Peake v. 755 wherein admits the offense oc- (Tex.App. 1988). S.W.2d 541 Appellant curred. any did not [1st] - Houston granted petition the State’s portion to address prosecutor’s opening state- issues, two intertwined to wit: whether ment. court of appeals failing apply testifying Prior to Wood but after all contemporaneous objection to the rule testified, other appel- State’s witnesses had alleged trial error and whether the court of requested hearing lant another to deter- appeals erred in application its of the harm mine voluntariness of his statements on 81(b)(2).
less error rule of Tex.R.App.Proc. tape before the State introduced the We will reverse the of the court tape through into evidence Wood’s testimo- appeals. ny. judge listened to the contents of
A brief recitation of
tape
the facts of this case
put
allowed
forth
necessary
disposition
support
of the State’s
evidence to
his claim of involuntar-
Appellant
for review.
filed mo-
iness. After much confusion as to the se-
appeals
Although
already
1. The court of
addressed
of
three
the trial
ruled on
points
motion,
counsel,
nine
After sustain-
suppression
error.
defense
ing appellant's
point,
first
the court of
hearing,
objected
admissibility of
further
appellant’s challenge
addressed
cy
to the sufficien-
tape
lay
proper predicate.
for failure to
of the evidence and the trial court’s
prosecutor
responded that the
was not
quash
his motion to
court
indictment. The
lay
proper
yet,
in evidence
and he
points,
overruled both these
numbers
predicate
time he offered the
at the
nine,
subject
four and
neither of which is
to our
during trial.
evidence
petition.
review in this
quence
Cir.1977);
Prieto,
of events and after
from
United States
sides,
(5th
Cir.1974).
both
F.2d
suppression
vious
motion and The
of appeals
applied
then
this fed-
granted
though
motion even
judice.
eral “test” to the case sub
First
“against
judgment”.
it was
better
[his]
found
Immediately
thereafter the State rested
good
acted in
faith when he referred to
case.
*3
appellant’s
opening
in his
confession
state-
ment
knowing
because he had no
of
the
appeals, appellant
In
court of
con-
ruling.
would reverse his
process rights
due
tended his
were violated
Thus,
appeals proceeded
of
the court
to
by
prosecutor’s
the
opening
remarks
impact
determine the
of the statement on
jury about the confession when the confes-
reviewing
the jury.3 After
the substantive
sion was not later admitted into evidence.
case,
procedural
facts of the
the court
appellate
recognized
The
that a
appellant
of appeals determined
was
liminary
statement
the
as
to what
prosecutor’s opening
harmed
re-
expects
prove
proper
to
at trial is
under
Peake,
marks
and reversed
conviction.
36.01(a)(3),V.A.C.C.P.,
Art.
and that there
543,
755
at
545.
S.W.2d
prosecutor through
is no error when
his
a
opening
alleges a
petition
statement
confession
The State contends in its
and, thereafter,
properly
is
appellant
the confession
is
of
not entitled to a reversal
Peake,
complain
admitted into evidence.
he
to
conviction because
failed
at
542, citing
at
v.
643
trial
prosecutor’s
Banks
S.W.2d
that the
remarks denied
case,
(Tex.Cr.App.1982).
129
In
how
a
The
this
him fair trial.
court of
con-
ever, the
appeals implicitly
object
court of
found
failure to
when
sidered
taped
analyzing
“impact
prosecutor’s]
error because the
was
confession
of [the
introduced into
of
never
evidence because
statement” and concluded
was
judge’s
required
object
trial
al
reversal of
not
to
because the trial
though finding
point.
already
no Texas case on
had
overruled
motion to
preserved
the error.
Id. at
guidance
appeals sought
The court of
on
62(b).4
citing Tex.R.App.Proc.
The
this issue from
federal
The
courts.
petition
State contends in its
that the court
following language
in
court relied
appeals’ opinion
of
is in conflict
with
of
addressing the harm the
error:
objection
contemporaneous
rule and that
a statement
the Government
[w]here
Tex.R.App.Proc.
the court failed
follow
is not substantiated
52(a)
103.5
or Tex.R.Crim.Evid.
subsequent ruling
at trial
good
judge,
find
the court
trial
both the
faith on
prosecution
impact
misapply
of
of of
Rule 52 in this case.
part
and the
general
law,
par-
principle
As for a
of
the court
the statement in the context
appeals is
defendant need
ticular trial
be assessed.
correct that a
must
United
(7th
Akin,
object
F.2d
466
not
at trial
the admission
cer-
562
States
apparent
appeals correctly points
in its
from the context.
It is also neces-
3.
The court of
out
judge’s
complaining party
sary
that the correctness of the
obtain a
for
admissibility
taped
ruling
confes-
ruling upon
party’s request, objection or
only
The
issue
sion
not before them.
...
motion
prosecutor's
presented
remarks
was whether
Peake,
S.W.2d at 543.
harmed
inapplicable
103 is
5.We
find Tex.R.Crim.Evid.
applies
Rule
to erroneous
this case.
(a)
actually
applicable
is
section
4.
rule
rulings
as to the admission or exclusion
evi-
Complaints.
Appellate
Rule
Preservation
addressing,
were
We are not
nor
we
dence.
part:
provides
pertinent
This section
review,
judge’s
propriety of the trial
asked to
ruling
(a)
preserve a
In order to
General Rule.
suppress.
motion to
Rath-
review,
party
complaint
appellate
must
er,
confronting
point
us at
issue
this
timely
presented
have
request, objection
to the trial court a
appeals correctly decided
whether the court of
motion,
spe-
stating
or
pur-
appellant preserved
appellate
error
grounds
ruling
he desired
cific
for the
poses.
specific
court to make
already
tain evidence once he has
expressed
received
his concern that re-
ruling
present
an adverse
on his motion to
error
versible
was now
in the
light
record in
that same evidence. See and cf.
statement
Dean v.
judge’s
and the trial
(Tex.Cr.App.1988).