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Seifert v. State8/5/1999
front of the jury. Rather, the answer itself could have unfavorably impacted the jury.
Assuming, without deciding, that the trial court erred in excluding any of the complained-of testimony in points three through seven, appellant suffered no harm. In point three, although the trial court sustained the State's first objection, Hiney's response to the same question was later admitted into evidence, thus resulting in no harm to appellant. See Preston, 481 S.W. at 409. In points four through seven, none of Hiney's answers could have had any impact on the jury. See Harris, 790 S.W.2d at 587-88. Because appellant cannot show harm, we overrule his third, fourth, fifth, sixth, and seventh points of error.
In his eighth point of error, appellant contends the trial court erred in not allowing him to testify whether he was physically able to perform the leg-lift test under any circumstances.
The first time appellant's counsel asked appellant if he could do the leg-lift test "on the best day of your life under the best of circumstances" the State objected that the question "calls for him to speculate." The second time appellant's counsel asked appellant where he had attempted to do the leg-lift test the State objected to the question's relevance. The trial court sustained both of the State's objections.
Initially, appellant had responded "no" when asked if he could "do that [leg-lift test] on the best day of your life under the best of circumstances?" He had answered the question before the State objected. Consequently, his testimony was already before the jury.
Appellant's counsel later questioned appellant as follows:
[COUNSEL]:
"When you attempted to do the test for the first time this week was it under ideal conditions?"
[STATE]:
"Again, Your Honor, I will object to the relevance of this."
THE COURT:
"Overruled. You may answer."
[APPELLANT]:
"Yes."
[COUNSEL]:
"What were those conditions?"
[APPELLANT]:
"I was standing in my bedroom, kind of, and just tried to lift my leg up and see if that is -- you know, after a while you can kind of get to the point where you can kind of do it, but it's not easy."
[COUNSEL]:
"Okay. At least for somebody in your situation?"
[APPELLANT]:
"In my situation it's hard for me to do, yeah."
Appellant again testified to his ability to perform the leg-lift test under ideal conditions as well as where he attempted to perform the test. Appellant cannot complain the trial court refused to allow him to testify to that which he ultimately testified. We overrule appellant's eighth point of error.
We affirm the trial court's judgment.
FRANCES MALONEY, JUSTICE
Do Not Publish
Tex. R. App. P. 47.3
961634F.U05
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