*1 Although paternity. appellants com plain probate failure to make court’s Pepe Joe CASTANEDA a/k/a finding, objected neither Castaneda, Appellant, probate court’s failure nor finding required by additional as rule Texas, Appellee. STATE of Texas Rules Civil Procedure. See Holmes, 298; James No. 04-92-00275-CR. Tex.R.Civ.P. probate S.W.2d 834. court Since Texas, Court of found the other element factual Antonio. San 12.02(a)(5), by unre section omitted and quested presumed to April element be will probate support found of its court
judgment if it supported the evidence. 299; Elsey, 748
See Tex.R.Civ.P. Sorrell v. (Tex.App. Antonio — San denied). writ
We conclude there is sufficient evidence support unrequested omitted and
finding. Vivian Jess Bush testified Lee
told her that he his and mother lived with years Pope
Thomas Luke until he was two
old, Pope began at which time left and
living cousin, his with mother’s first Edith Mitchell, Additionally,
Brown. Odell a life- Jess,
long friend of Lee when asked where child,
Lee lived Jess when he was a testi-
fied Lee Jess lived “mommie
daddy.” Mitchell named Thomas Luke
Pope Lee “daddy.” as Jess’s This evidence
supports presumed finding that Thomas Pope
Luke received Jess home Lee into his
before Lee age majori- Jess reached the
ty. probate
We hold the err did not determining matter of law in Thomas Pope
Luke biological was Lee Jess’s father. point appellants’
We overrule of error and probate
affirm judgment. court’s *2 Sosa, Atty., Appellate Asst.
Fausto Dist. Section, Laredo, appellee. for REEVES, C.J., Before and CHAPA and RICKHOFF, JJ.
OPINION RICKHOFF, Justice. Castaneda, “Pepe”
Appellant, Jose by convicted a of murder.1 Punish- ment, by previous for enhanced convictions attempted burglary, murder was as- imprisonment. the court at life sessed appeals alleging points now two Appellant error. We affirm. challenges point
The of error first tape-recorded admission of leading statement of the events argues Appellant of Prisco Ramirez. death provide his counsel that the State “true, copy” complete, and accurate days recording no later than 20 conformity with the Texas before trial See procedure. of criminal Code Tex.Code (Vernon 3(a)(5) art. 38.22 § Crim.Proc.Ann. Supp.1993). trial, appellant discovery filed a
Prior recordings “any and all requesting motion The possession of the State.” inspection opened its files to for 7, 1991, more than two on November recording copy months before trial. No file on appellant’s statement was in the date; did, however, police contain transcription of the record- report with a ing. that he police officer testified
At tape-recorded con- statement obtained appellant. cerning Ramirez’s death tape, to admit When State moved ensued: time, your (prosecutor) At this Mr. Sosa: Honor, I move for for State’s would 16 to be admitted. Exhibit counsel) Montemayor: (appellant’s Mr. Honor, object. Ramirez, Defender, going to Reynaldo Lar- Your we’re Public predicate has laid. edo, appellant. proper The not been for together jury. before a Raul was indicted for offenses The record shows brother, Raul, guilty along attempted also found mur- Castaneda was with his The were then tried murder. der and murder. brothers trial, appel- prior months specific Be more counsel. vised that two Court: was shown the entire lant’s counsel State’s Montemayor: Mr. The elements that must file, transcription. is, one, including recording be met number two, seen did not that he had not recording Number ma- claim relevant. *3 used; rather, being was transcription; chine testified before he claimed to condition, operating in normal was recording. the The court then heard recording machine used and was accu- called a recess and instructed counsel to rately going recorded—what we’re on compare transcription record- with made, recording was is after ing jury before the returned.2 After re- operator replayed tape and the cess, ensued: tape accurately had recorded the you anything The there need Court: Is images. tape The sounds was hearing up jury take outside the labeled, placed then sealed and in a bring jury before we back? storage guard against vault to secure No, just Judge, Mr. Montemayor: ob- tampering and later removed for trial jection introduction the seal still in condition. tape. Thereafter, dialogue between the objection? The Court: What’s prosecutor judge, and co-defendants’ Mr. to 38.21— Montemayor: According counsel, counsel to directs The Court: 38.21? provision 3(a)(5), notice 38.22 article § provides: Montemayor: sup- Mr. 38.22. State is The true, posed provide us with com- sign No language oral or statement of an plete recordings. copy of all the accused made as a result custodial interrogation shall admissible The court then overruled ob- proceeding the accused a criminal un- jection to hear and allowed less not later day than the 20th be- recording. proceeding fore the date of the the attor- ney representing provid- the defendant is proper for an to be order issue true, ed with a complete, and review, accurate ly preserved appellate for there copy recordings of all of the defendant timely objection specifically must be a stat made under this article. ing legal objection. basis for the Rezac State, (Tex.Crim. 782 S.W.2d art. 38.22 Tex.Code Crim.Proc.Ann. App.1990); 3(a)(5) (Vernon Miranda v. Supp.1993). § (Tex.App. Antonio writ — San prosecutor again sought The to admit the ref’d). Furthermore, preserve in order tape. This followed: by way alone, appeal objection on The You objections? Court: have no other objection tangi must come before the No, Montemayor: Mr. sir. objectionable ble clearly evidence which is The Court: Then what’s the exhibit num- is admitted. Sierra ber? (Tex.Crim.App.1972). Mr. Sosa: Exhibit 16. The Court: State’s Exhibit 16 is admitted. present case, appellant’s In the re objections are overruled. Before stated and correct to the admis you just inquire; do that let me coun- recording grounds sion of (sic) you sel have had received the con- 3(a)(5) did comply with article 38.22 § recording? tents of this until not come after the exhibit was However, admitted. we conclude that the
Subsequently, hearing held outside presence recording’s court’s determine reconsideration of the compliance subsequent admitting whether had admissibility there been with 3(a)(5). article tape 38.22 The court was ad- allows us consider whether § audiotape transcription 2. The reveals record that the and the in the of a the omission sen- transcription police transcription spoken contained in the files are tence in the that was twice except "okays” audiotape. similar the exclusion of two hit my re- at him when he brother improperly overruled I objection. stated with the machete. Then fired back that, I ran several other times. After 3(a)(5), the Under article 38.22 § inside, I door I went out back “true, provide a com State was gun. I made a buried the hole plete, state copy” and accurate oral ment to no later than 20 drvs going I I say also What requirement This is to >e
before trial. self-defense, (sic) r was defend- strictly construed. Tex.Code Crim.P oc. my 3(e). ing and brother 38.22 cannot house art. § Ann.
say complied article not kill him with the stick. the State would 3(a)(5) making transcription 38.22 § *4 recording appellant. to available hit the He hit him. He him on back with circumstances, we find the
Under these I came out I told the machete and when by overruling appellant’s trial erred court alone, him, hey, leave him and then he admitting tape-recorded objection and against I came me with machete and the statement. again my He fired. ran towards where him going and he was to hit brother was must next determine whether We in head and that’s the machete the with the If the was harmed error. I rest the shots. when fired the appellate in record a criminal case reveals below, proceedings appel error in the reviewing recording, in- After entire judgment under late court shall reverse above, cluding excerpts we conclude appellate review unless court deter did contribute to appellant’s statement not mines reasonable doubt believed, rather, conviction; error no to convic contribution his defen- would have bolstered statement Tex.R.App.P. 81(b)(2). punishment. tion or acquit- to his theories and contributed sive determination, making In our note Considering the nature of the state- tal. defense at trial relied ment, admitting that the error we hold the theories of and defense of self-defense audiotape beyond a rea- was harmless fact, parties; requested, third one is doubt. Point over- sonable submitted, and the court these two defen- ruled. Moreover, appel- charge. sive issues point error, ap his second argued closing, lant’s counsel in his “... argues court erred pellant trial Pepe firing has Castaneda never denied failing to instruct weapon it. he is ... He’s never denied But stage testify punishment to right at guy hitting saying yes, I fired. That was testify contin the trial. The not to coming me my brother. He started at after a defen beyond conviction until ues my I to do?” mother. What was v. has sentenced. Beathard dant been trial, appellant’s At statement was State, (Tex.Crim.App. 767 S.W.2d 432 appel- only substantiating direct evidence 1989); 445 v. State citing Brumfield lant's of self-defense and defense- theories (Tex.Crim.App.1969). 732, 735 S.W.2d perti- follows are of-a-third-party. What Moreover, right to “no- has a defendant excerpts: nent concerning adverse-inference” instruction — my my sleeping I inside home was testify— not to the fact a defendant elects happening me mother told that what stage a trial. Beath at got up I I went outside the house. State, at 432. v. ard happening. I saw out see what was initially determine wheth We must My the man with the Machete. brother objected to the failure to appellant either I er Alex. fighting was Then when instruction include “no-adverse-influence” he saw the man who had machete request in once, proper made a to add such hit, my or going he hit him may waive the brother, inside, got I A defendant I ran struction. back. instruc- I to a “no-adverse-influence” I outside and fired pistol and went
295 ref’d). tion either request App. pet. unless made to the Since — Beaumont of charging timely add the instruction to this is a case error with its charge punishment stage objection, only if at the or an we will reverse the error ob- jection injure is made to was calculated to the omission of such defendant, State, means there must instruction. See v. Brown some harm the from the (Tex.Crim.App.1981). S.W.2d accused error. id.; State, citing v. See Almanza charge Prior to the submission of the (Tex.Crim.App.1984); S.W.2d 157 Rose cf. jury, counsel Raul made the follow- (Tex.Crim.App. ing objection charge to the proposed 1988). We find that no occurred harm punishment: appellant from the trial failure court’s all, I’m going object ... First give the “no-adverse-influence” instruction. Charge requested Court’s also determination, In making we find as to instruction defendants’ failure to the case of 779 S.W.2d at White testify and not to be used him. 809, controlling. White, It requested by counsel based on the capital convicted of murder connec- testify pun- fact that strangulation with the suffocation and stage ishment and it was of an eighty-year-old punish- woman. His denied it. *5 pun- ment was assessed at At the death. Immediately thereafter, Javier Montema- stage, ishment the State introduced evi- yor, for appellant, counsel stated to the Appellant dence that the had committed a court: previous murder; pro- that he was the Judge record, the Montemayor for Javier committing cess of a burglary when he was representing Jose Castaneda. We’d also arrested; reputation and that he had object like to to Charge the Court’s on testify violence. The not Punishment that asking we’re also the punishment stage. Affirming the Ap- Court to include jury may that the con- conviction, pellant’s sider all the pre- circumstances that was that the held trial court’s failure to guilt sented in the stage. and innocent give the “no-adverse-influence” instruction asking We’re also the Court to consider was not injure calculated to including charge in the the fact that —the Appellant. instructions on the testify of to case, present In the similar evidence was Defendant, “Pepe” Castaneda, Jose punishment phase introduced at of tri- based on fact that he didn’t testify First, appellant’s al. introduced during evidentiary stage. previous felony two that convictions served Considering the above-mentioned dia- present And, to enhance his conviction. logue, conclude we it should have been case, White State introduced clear sufficiently counsel, that appellant’s reputation Appel- for violence evidence. counsel, like objecting Raul’s to the Castaneda, lant also called Graciela charge failure of the instruct the appellant. mother of Raul She testi- appellant’s right testify not pun- at the fied her “were very sons innocent.” stage. ishment objection, After this no testimony Besides similar adduced at exception other to the court’s punishment phases of both White and charge necessary preserve error. case, our are in our influenced determi- (Ver- See Tex.Code Crim.Proc. art. 36.15 nation no harm that occurred to non Supp.1993). the fact that was able hear Finding error, we must now testimony bolstering deter of self- theories mine whether such error is reversible. defense-of-a-third-party See defense State, (Tex.Crim.App.1989), White v. 779 through S.W.2d 828 his statement as well as the testi- denied, witnesses; that, t. 495 mony U.S. other cer 110 (1990); S.Ct. dire, L.Ed.2d 757 venireperson voir each who was ulti- (Tex. Jannise v. mately juror selected sit as a was in- reaching testify. appellate not court before even structed on analytical that received the evaluation of circum- We also note available, life imprison- stances of the case. maximum sentence necessarily follow, ment. how- It does disagreement Initially, can be no there ever, occurred some that there harm 81(b)(2) Rule meant was never he received the maxi- because every committed whitewash (no at 828 mum id. harm sentence. See every appellant. pur- If had been the “no-adverse-influence” omission of placed pose, the rule would case). Finding no penalty death harm oc- extremely appellate heavy burden appellant, we overrule curred to only ap- “the court to reversal avoid point second of error. court a reason- pellate determines judgment of conviction affirmed. made no able doubt that the error contribu- punish- tion to conviction or Justice, CHAPA, concurring & ment.” dissenting. requirement Implicit the rule is the respectfully concur dissent. appellate meaning conduct a complete analysis totality ful and This case involves the commission of two justifying the the circumstances before majority errors concludes are which the harmless. conclusion that the error was Appel- Texas Rule of both harmless under (Tex. S.W.2d 157 81(b)(2).1 Almanza late The first error Procedure Crim.App.1984), emphasized the court appellant’s request the denial of involves requirement, stating: 3(a)(5) under of article 38.22 of the section Texas Procedure. After Code of Criminal degree the actual both situations analysis, cor- appropriate light of assayed in harm must be *6 rectly harm- concludes that the jury charge, the state of evi- entire Appellate Rule of Proce- less under Texas dence, including contested issues and 81(b)(2). dure I concur. evidence, weight argu- of probative ment of and other relevant counsel error, however, The second involves record of the by information revealed denial of a much more fundamental trial as a whole. trial appellant. The court refused appellant’s timely instruction 171. Id. at right to jury regarding remain si- Logic repeated invoca- dictates that stage lent to which errors in repeated for tion of rule State, clearly Brown he was entitled. justi- single significantly weakens 234, (Tex.Crim.App.1981). -favorably applying the rule fication received the maximum sen- accused every Certainly, if subsequent error. error, tence. the first Unlike during single repeatedly are errors erroneously that this error was concludes has to be some harm. eventually there 81(b)(2). also under Rule I dis- harmless rule of perceive I cannot that our law agree respectfully dissent. repeated encourage al- would condone and errors, the ultimate application leged harmless considering
In of Rule sought trial.2 81(b)(2), result is a fair factors must be considered certain reviewing 81(b)(2) Consequently, must provides: court focus Tex.R.App.P. 1. process not on the result. In appellate If the record in a Criminal Cases. words, reviewing always must proceedings other case reveals error criminal below, essentially appellate court shall reverse the examine the trial was whether review, judgment appellate magnitude unless the under of a fair one. If the error was beyond a reasonable doubt court determines disrupted orderly juror’s evaluation of it no contribution to the that the error made evidence, overwhelming how no matter punishment. or to the conviction been, might the conviction taint- then ed. In the Texas of Criminal Harris Harris, 568, (Tex.Crim.App. following statement when ad- made the 1989). dressing issue: the harmless error Another factor to Fahy be considered v. State Connecticut U.S. [375 of appellate 85, applicable courts is the standard 84 S.Ct. L.Ed.2d 171] of appeal review on established there possibility Alman “whether is a reasonable za, distinguishes significantly complained might be that the evidence of degree necessary tween of harm to the have contributed conviction” and reverse properly pre when the error is requiring beneficiary a constitu- by objection served prove beyond when it is not. error to tional a reason- Almanza, the court stated: complained able doubt that the error did not contribute to the verdict obtained.
If the error in
charge
was the
[Emphasis
subject
timely
added.]
the trial
court, then reversal
if the
Since
timely objec-
denied,
made a
cert.
495 U.S.
110 S.Ct.
charge,
this court is bound to
(1990)].
pletely
upon
unlike
which the State
repeatedly recognized
We have
that
“instructing
relies. White involved the
and
jury
intentional
a
constitu
basic
rape
principles
govern
inexcusable
tional
that
adminis
heinous
and murder of
old,
justice,”
very
tration
criminal
helpless
two
ladies
the theft
and
omitted]
[cite
necessary.19
is often
are not ex
Jurors
their cars.
The case before us involves
legal
in
perts
principles; to function ef
killing
complainant
of the
he was
while
fectively,
justly, they
accu
and
must be
allegedly assaulting
ap-
the brother of the
rately
in
instructed
in
law. Such
pellant
approaching
with machete and
perhaps
structions are
more
nowhere
White,
appellant and mother.
his
while
important
than in
context
it is unclear whether the
testified
privilege against
Amendment
guilt/innocence
Fifth
during
phase
of the
compulsory selfincrimination,
since
trial, it is clear that he
confessed to
two
many, even those who should be
“[t]oo
murders, offering
justification
no
for his
advised,
privilege
better
view this
as a
showing
ap-
no
actions
remorse. The
wrongdoers. They
shelter for
too readi
all,
pellant
testify
here did not
con-
but
ly assume that those who
it are
invoke
sistently
in
contended
his statement and
crime_”
guilty of
...
[Cite omitted.]
acting
evidence that he
self-defense
And,
stated,
as the Court has
“we have
contrary
defense of another. Also
yet
attained that certitude about the
contentions,
to the State’s
this record fur-
justify
human mind which would
us
reflects
ther
that the
did in fact
dogmatic assumption
jurors,
if
present two
witnesses
admonished,
properly
nor
neither could
phase
although
jurors
heed
of the trial
would
court_”
the instructions
generally
were
admonished
voir dire
and footnote omitted.]
[Cite
silent,
defendant’s
remain
judge
powerful
A
has a
tool at
part
the record to which
disposal
protect
priv
the constitutional
jurors
refers us fails
reflect
ilege
has
instruction—and he
—the
questioned individually
subject
were
obli
constitutional
affirmative
suggested by
the State.
tool
gation
use that
defen
Consequently, considering
heavy
judge
bur-
No
employment.
dant seeks its
den
prevent
jurors
speculating
fail
see how the
can
why
establishing
has
a defendant stands mute
carried its burden of
accusation,
face of
a criminal
but
beyond a
doubt
reasonable
that the
can,
must, if
do
was harmless.
so,
unique power
use the
Nevertheless,
ignore
even we
the fore-
speculation
instructions to reduce
going,
justification
there is no
to conclude
minimum.21
*8
that the error
harmless beyond
a rea-
Considering
appli-
sonable doubt.
that the
The
of a
in a crimi-
freedom
defendant
cable “some harm” standard
be-
of review
he
nal
trial
remain silent “unless
requires
us
if
fore
reversal
the error is
speak
chooses to
in the unfettered exer-
to injure
“calculated
of the de-
guaranteed by
of his
is
cise
will”
own
fendant,” this
pay particular
court should
applicable
Fifth Amendment and made
significant
Supreme
heed to how
Court
through the
proceedings
state criminal
of the United
defen-
States considers the
And the
Fourteenth.
[Cite omitted.]
dant’s
to a no inference instruction
guarantees that no
Constitution further
remaining
regarding
throughout
silent
from
adverse inferences are
be drawn
the trial.
privilege.
omit-
the exercise of that
[Cite
288,
Kentucky,
v.
450
101
Carter
U.S.
a de-
Just as adverse comment on
ted.]
1112,
(1981),
privi-
S.Ct.
299
unequivo
jurors’ App.1981),
the failure to limit the
announced a clear and
omitted]
speculation
meaning
regarding
of
issue
us:
on
that si-
cal rule
before
lence, when the
makes a
defendant
time-
request
that
a
made
We hold
where
is
request
ly
prophylactic
that
instruction
charge at
to the trial court to add to its
given,
impermissible
be
exacts
toll on
an in-
punishment stage
of the trial
privilege.
the full and free exercise
of
on
struction
the failure of the defendant
Accordingly,
hold
a state
objection
or an
is
to the
testify,
judge
obligation,
has the constitutional
charge,
of such
omission
it is reversible
request,
upon proper
to minimize the
error if
trial court fails to honor that
danger
give
will
eviden-
request
find that
because we
tiary weight
ato
defendant’s failure
unless
jury,
“members
instructed
testify.
[Emphasis added.]
otherwise, may
infer-
well draw adverse
silence,”
at the
ences from defendant’s
19
478,
Taylor Kentucky,
U.S.
436
98
punishment phase
just
of
],
(1978)
S.Ct.
56
L.Ed.2d 468
Court
[
from
could
the defendant’s silence
requires
held that the Due Process Clause
guilt-innocence stage
at the
of
trial.
given
presumption
instructions be
on the
of
evidentiary signifi
innocence and the lack of
prevent jurors
spec-
“No
can
judge
recognized
cance of an indictment. The Court
ulating
why
a defendant stands
presumption
that an
instruction
of inno
...,
can,
must,
mute
but a
"salutary
lay
jurors,"
cence has
effect
so,
unique
to do
use the
ordinary
may
and that "the
significant
citizen well
draw
guidance from
additional
such an
speculation
to reduce that
instruction
instruction.”
The Court
[Cite omitted.]
Carter, supra,
See
101
minimum.”
"purging"
stressed the
effect of the instruction
1113. [Emphasis
S.Ct. at
added.]
protect
need to
"the accused’s constitu
judged solely
tional
to be
the basis
Id. at 238.
proof adduced at trial."
The
[Cite omitted.]
said,
course,
respect
same can be
according
holding,
to this
this
Indeed,
privilege
remaining silent
the claim
to reverse
case
would
compelling
even
Taylor,
more
here than in
punishment,
as to
before us
without
dissenting opinion
where the
noted that “the
further consideration.
Taylor’s
omission [in
did not violate
trial]
guarantee,
specific
constitutional
such as the
Nevertheless, finding justification
privilege against compulsory self-incrimination."
Supreme
United States
[Emphasis
Court’s refusal
[Cite
footnote
add
omitted.]
ed.]
directly
address
issue whether
21
importance
of a no-inference instruc
harmless,3
error could ever be considered
public
underscored
a recent national
declaring
holding
that their
was “[l]im
opinion survey conducted for the National Cen
setting
ited to the unusual factual
of this
Courts,
revealing
ter for State
that 37% of those
responsibility
interviewed believe that it is the
case,”
Appeals
Texas
Court of Criminal
prove
accused to
his innocence.
64
Beathard
(1978).
A.B.A.J. 653
(Tex.Crim.App.1989), appears to
re
302-05,
450 U.S. at
at
S.Ct.
1120-21.
unequivocal pronounce
versed its clear and
Recognizing
powerful message
ment in
applied
Brown and
harmless
of.
Supreme
the United States
analysis
Court
first time
what
Car
ter,
Appeals
the Texas
Court Criminal
in had been considered automatic reversible
(Tex.Crim.
Brown v.
preme
expressly
Court
reserved
a reasonable
struction
error
type
433. The court
question
whether
harmless.” 767 S.W.2d at
Carter, supra
basis,
can
harmless.
stating:
be
its
set out
[450
304,
101
at 1121. To
S.Ct.
U.S.]
right to a
“no-adverse-inference”
error in
extent that we believe that the
jury’s
rooted
natural
instruction is
in a
could not
contributed to
this case
have
not
tendency to assume that the decision
issues,
special
jury’s
answer to the
having
testify stems from a defendant
necessarily
must
find that this is
we
generally
something to hide. See
Carter
is
to a fair trial
which
“so basic
case,
supra.
In the instant
Kentucky,
v.
infraction
treated
can never be
[its]
By testifying
this was not a concern.-
harmless_”
Chapman
[v. Califor-
during guilt/innocence,
jury
heard
28,
Appellant antique White, sold the clock to an also unlike the State shop. He the papers, closing retained which in- arguments in comments dur- registration cluded the to the Valiant. ing stage that, intentional otherwise, potential Appellant confessed to the murder had the of deliver- of Bailey ing message at prejudicial Mae the same time he confess- re- ed to the remarkable similar murder of garding testify. failure to St. Elizabeth John law enforcement distinguishable case this is likewise Beach, Myrtle in officials South Carolina. from does fall within the White According Kemp, appellant to Mitchell at setting justify limited unusual of toWhite regret expression that time made no of holding give that the failure to a “no-ad- for his deeds or remorse for his victims. punish- verse-inference” instruction in the reputation
The State also introduced
phase
ment
was harmless
a reason-
Blazer,
violence evidence
Ron
able doubt.
the former Chief of
for the
Detectives
summary,
this appeal
because
involves
Ohio,
City
Lancaster,
Depart-
Police
error rule in
invocation
the harmless
Also,
appel-
ment.
evidence that
detailed
errors,
applicable
two distinct
standard
process
lant
in
of committing
is the
review
lenient “some harm” stan-
burglary of Romondo’s restaurant when
Almanza,
totality
dard under
he
Myrtle
in
was arrested
Beach was
surrounding
case
circumstances
this
is
This
elicited.
evidence had been exclud-
completely distinguishable from Beathard
by
guilt phase.
ed
at
White,
Supreme
the United States
Appellant
no
at
offered
evidence
placed great significance
Court has
punishment phase.
silent,
right of an accused to remain
pun-
at
view the evidence offered
prejudicial
during
State made
ar-
comments
ishment, coupled with the evidence ad-
and,
guments
punishment stage,
stage,
guilt/innocence
duced in the
beyond a
State has failed to establish
rea-
say
give
cannot
trial court’s failure
harmless,
the error
sonable doubt that
requested charge
was calculated to
there
no
basis for
hold
injure
rights
defendant
injure
that this error was not “calculated to
Finding
case.
could not have
rights
of the defendant.”
jury’s
contributed
answers
special
us,
issues under the record before
Although as an intermediate court we
we conclude he suffered no harm from
law
are bound to follow the
as outlined
charge.
omission of the
courts,
cog-
remain
superior
our
we should
nizant nevertheless that
the constitution-
such fundamental Eduardo et al. sis, error specter I fear of the harmless concept creeping enough encompass far AZIZ, Akhtar M.D. Salar denial of an instruc accused’s presumption on his of innocence.7 No. 04-92-00677-CV. only considerably possibility This would not Texas, Appeals of diminish the of all constitutional Court of benefits rights of or other Antonio. those San accused—innocent potential have the wise—but would 30, 1993. April creating deny a license to accused their hopes any constitutional
error would declared harml nevertheless be Thus, could re
ess.8 unfair trials be the
sult, necessarily which would have a disas jus
trous effect on our administration of system.
tice Chew (Tex.App. pet. Antonio — San
ref’d.), this court stated: trial, order a fair to have
[I]n
should rendered its verdict based
solely properly on the evidence admitted considering without other aspects]
detrimental evidence [and not properly introduced. The Su-
[were]
preme Court of the United ad- States eloquently
dressed this issue more
Brady, stating “Society wins not
only guilty when the are convicted but fair; system
when criminal trials are our justice administration suffers unfairly.”
when accused is treated
Brady
v. Maryland, 373 U.S.
83 S.Ct.
(1963).
Id.
I would remand for reverse and reconsid- only.
eration of the floodgates majority opinion perfect example stopped, open is a will 7. unless potential spreading dangerous spread. error harmless concept too far. State, supra, 8. In the Texas Court Harris v. Although it is clear that the intent Texas Appeals made the statement Court of Criminal in White Beath- issue, addressing “In when the harmless error applica- ard was to the harmless confine error addition, Court must also determine wheth- tion to the circumstances unusual of the two declaring dealing er encour- harmless would cases with the to remain silent, age repeat impunity....” liberty it with here has taken applying totally it to different circumstances.