I recently tried an aggravated robbery case where the complaining witness gave a description of the defendant and picked him out of a lineup. At trial, the defense asked the court to allow the defendant to walk in front of the jury so he could point out inaccuracies in her description (height, hair color, eye color). I objected claiming this was testimonial and if he did this I should be able to cross the defendant. The Court agreed and defense counsel withdrew his request. The Court suggested defense cousel use defendant's book in photo in front of the jury which defense counsel did not do. On appeal, defendant is claiming error based on Williams v. State 116 S.W.3d 788 (Tex.Crim.App. 2003) which is a case having to do with voice exemplars, claiming that such demonstrations are not testimonial and should not subject the defendant to cross.

Has anyone had to cross a similar bridge on some "demonstration in front of the jury" issue?

The way I figure, my three arguments are:
(1) waiver, because defense counsel had other ways to get the information in front of the jury and chose not to;
(2) voice exemplars are distiguishable from physical characteristics in that while you may only hear not guilty from the defendant, you can see his physical characteristics by staring at him for several days during trial; and
(3) any error was harmless given the rest of the evidence.

Any discussion or suggestions would be appreciated.

[This message was edited by Eric C. Carcerano on 06-07-04 at .]

I had a defendant smile real big to a jury one time after an officer testified that the suspect in a drug delivery case had a mouth full of gold teeth. No objection was raised by the defense, hence, no issue on appeal.

If defense counsel "withdrew" his request in light of your objection was any error preserved?

The flip side of your coin is a request by the State that a defendant demonstrate a physical characteristic for the jury (e.g. a tatoo or scar). Since the courts hold this is non-testimonial in character you can compel the defendant to "show it". Love, 730 S.W.2d at 395-6. Seems to me your argument cuts against that concept.

Does seem there would not be much chance for harm in you case- even if the court should have quelled any fear of vigorous cross.

Thank you to everyone who posted and replied by e-mail. For the record, my compadre Dan Bradley said harmless error.