Harris v. State

support. pay relator failed to child argues specifici HOLLAND, that without such Relator parte Earl Jr. Ex S. support order ty, the child enforcement No. C-9798. agree. We The relevant unenforceable. Supreme Court of Texas. Family provides section of Code “imposes incarcera enforcement order 13, 1990. June fine, findings tion or a must contain [it] date, time, setting specifically out ... each place of occasion on which the child respondent comply” failed to 14.33(a). support order. Tex.Fam.Code § does not Because the enforcement order requisite is not specificity, contain by contempt. Ex Parte enforceable See (Tex.App Boykins, 764 S.W.2d 590 . —Hous 1989, orig. proc.). ton [14th] 122, majority Tex.R.App.P. Pursuant to order holds the court’s of the Court district contrary to Tex.Fam.Code void and, argu- 14.33(a) hearing oral without § ment, discharged. relator orders HARRIS, Appellant, Danny Ray Texas, Appellee. The STATE Seidlits, Jr., Sherman, L. for rela- Curtis No. 69366. tor. Roland, respon- George McKinney, for Texas, Appeals of Criminal dent. En Banc. June

ORIGINAL HABEAS CORPUS 28, 1990. Rehearing Denied March PROCEEDING PER CURIAM. pro original corpus is an habeas

This evidentiary hearing, the

ceeding. After an County court of found

199th district Collin Holland, contempt for Earl S.

relator Jr. pay support. child

failure to court-ordered jailed relator

The district ordered sup pays until the child months or he

six arrearage. Although the court found

port in the “is now in arrears relator $10,440,” specify the it failed to

amount date,

time, place occasion of each Turner, Atty., and

Bill Dist. Deena J. McConnell, Bryan, Atty., Asst. Robert Dist. Huttash, Austin, Atty., for the State’s State.

OPINION DUNCAN, Judge. capital was convicted of Code, pursuant

murder to V.T.C.A. Penal 19.03(a)(b), punishment was assessed § 37.071(e), at death under Article V.A.C. C.P., affirmatively after the answered questions submitted punishment phase at the of the trial. This time second this Court has reviewed imposed a death sentence on the Harris for this offense. See (Tex.Cr.App.1983). S.W.2d 447 the facts in this case have not Since adopt- changed, liberty will take the we ing comprehensive factual recitation as appellant’s previous appeal, set in out State, id,., at 454.1 To do other- Harris v. unnecessarily reduntantly wise would lengthen opinion. this however, Briefly, appellant, his code- Manuel, fendant, appel- James Charles Harris, all lant’s Curtis Paul were brother Timothy capital for the murder of indicted Rencher, juve- who Merka. Valerie was nile the offense and the at the time of Harris, apparent girlfriend of Curtis Paul offense, although present the time formally charged indictment. was never Further, plea agreement, as a result of against ap- she for the testified State pellant of his trials.2 at both point of error appellant’s first grant a refusal to based on the trial court’s that a discovered. new after was trial lost. his portion of the record had been error, appellant claims point second MacDonald, juris- II, Caney, did not have the D. New for that the trial court John measures in an diction to take remedial appellant. arising developed at out of the transaction which 1. If new or additional facts were offense subsequent appellant’s is the trial which basis of the in this the basis of the indictment others review, necessary. will so note when we punishment cause she would not be assessed greater years Department the Texas than 10 agreement plea portions 2. The essential of Corrections. provided prosecution between the and Rencher she was convicted for the event January the trial court con- effort to correct the defect the record. On are so points Since both of error interrelat- supplementing hearing ducted a to consider they ed disposed simultaneously. will be the record that identifies document 15, 1984, pretrial hearing On June pretrial heard the court on motions conducted court. Apparently 15, 1984, ruling June court’s on the and the regular reporter because the court was un- hearing court, motions. At the trial available, County Brazos authorities ar- request appellant’s over the for a “mis- ranged independent reporter for an (new trial), trial” that the record ordered report hearing. The record demon- supplemented with the document that re- appellant’s attorney strates that re- hearing pretrial counted the and concluded quested reporter that the court take notes including that document the record Later, hearing. timely and in a appeal complete. the record in the manner, appellant’s requested counsel Designation of the Record that examining Prior to the substance of pretrial hearing notes of the be made a appellant’s imperative claim is part of the record. Sometime after the Appellate examine whether Rules of Designation filed, of the Record had been applicable appeal Procedure are and the State were advised this conviction. As noted at the outset of that the notes of pretrial hearing were opinion, this is the second lost. time before this Court the same of Appellant’s Objec- counsel then filed his fense; thus, has been this ease around for tion to the specifically identifying Record long time. This time the was the deficiency requested and the record penalty convicted and assessed the death hearing Objection on his to the Record and 29, Therefore, July on appel 1984. “after hearing enter such orders as [the] appeal proceeded lant’s in accordance with appropriate be to cause the record to procedures by 44.01, dictated Article et speak the truth....” seq., Specifically, V.A.C.C.P. when the hearings Two held were to examine the objectionable matter of the record surfaced appellant’s Objection Record; to the how- appellant’s responded pursuant counsel ever, only hearing consequen- second procedures required to the under Article tial. At that one hearing, appel- of the 44.09(7), is, 22, supra. July 1986, on That attorney’s lant’s trial conceded no witness- he Objection filed his to the Record and appeared es pretrial hearing at the and that requested hearing August thereon. On the only transpired matters that 1, 1986, pretrial hearing its first hearing heard court held on was “we all the mo- tions;” rulings court;” were appellant’s Objection to the Record. “[t]here and agreements were that Thus, were “[t]here process responding ap of to the dictated into the record between the coun- pellant’s complaint pro the record about as provided sel to what would be and what ceeded in accordance with the then still Further, agreed wouldn’t.” the witness applicable procedures mandated in the prosecutor with the that the court made Code of Criminal Procedure. reflecting docket rulings entries his on the 1986, September 1, On the Texas Rules every motions and case “almost ...” the Appellate became Procedure effective rulings court’s were noted on the motions pursuant adopting to an order this Court themselves. At the conclusion hear- 18, such rules dated December 1985. On ing Objection Record, on the to the 22, Court, September 1986, recognizing rough State tendered to the court “a draft as applicabili- confusion existed to the the, believe, which has a list of I twenty- all ty of appeals the rules to that were in the six motions that heard on day.” were process being perfected, issued an Order The court ordered that tendered doc- Implementing Appellate the Texas Rules of (which ument was not introduced into evi- record) Procedure in Cases. In part dence and thus not a of this Criminal relevant be part formalized and to the provided returned court. this Order as follows: 574 of Appel- Procedure rather than the Rules

It is the Court Criminal Ordered applicable. late Procedure are posttrial, appellate as to Appeals that procedures steps review and com- preliminary Dispensing with this pleted complet- required or have been matter, procedural claims 1986, 1, prior September proce- ed pretrial of the notes of the loss gov- provisions then in effect shall dural hearing appel dooms his conviction. ern. State, principally upon v. lant relies Dunn 212 (Tex.Cr.App.1987). all procedur- It is further Ordered that 733 S.W.2d Dunn, id., the Court stated: requirements post- al matters and as to trial, procedures appellate and review long It the rule in this has been State steps completed required to have or through appellant, no “[w]hen 1, September completed on or counsel’s, been after his fault of his own or is de 1986, governed by the procedur- part shall prived of a the statement of facts requested, requirements diligently appel al of the Texas Rules he cases, late court cannot affirm the conviction. Appellate Procedure criminal 888, State, 638 S.W.2d Austell v. regardless appeal of when notice (Tex.Cr.App.1982). See also Gamble v. given. State, (Tex.Cr.App.1979); 590 S.W.2d 507 noted, ap- previously As Timmons, 512; supra, at Pierson proce- peal pursuant initiated to the 975, 147 Tex.Cr.R. required dures then the Code of Crimi- (1944); Tex. Navarro Specifically, nal relevant Procedure. (1941) Cr.R. S.W.2d error, record point notice that the rehearing); (Opinion on motion completed given appel- had been 210(a) Tex.R.App.Pro.RuIes now also July 8, appellant object- lant on 1986. The Further, 50(e). ap this rule has been and, July ed record on only portion all plied whether noted, hearing previously the initial statement of facts was omitted. See objection Un- August was held on examination); Austell, (voir supra dire V.A.C.C.P., 40.09(7), der Article once then Gamble, (final arguments during supra complete record a de- notice punishment jury); before the and days Objec- file fendant had fifteen to his and, State, 374 Hartgraves v. S.W.2d Thus, appellant tions to the Record. 888, (Tex.Cr.App.1964) (hearing on Objections file his had to to the Record trial). motion for new 23,1986. July properly timely He and filed appellant to burden is on estab [T]he Thus, 22, objection July 1986. on deprived lish he his been ha[s] necessary appellant to period for the time facts, statement of omitted] [citations Objection his and preserve to the Record judgment To be to a reversal of entitled objection were dates preservation his where statement conviction 1, ap- prior September to 1986. Since filed, must facts show is not pellate procedures appropriate preserve to diligence requesting in and that due “complet- Objection were Record have the statement of failure to file completed prior required ed or to have been way in timely any due to facts filed is ...,” 1, appel- September then the laches, negligence, or other fault 40, in Chapter counsel, late noted V.A.C. procedures omit appellant or his [citations appeal. C.P., to this applicable were Indeed, in the circumstances such ted] appel cases be viewed from should pro- recognize certainly We that other standpoint, lant’s omitted] [citations appeal, ceedings, necessary perfect this favor any reasonable doubt resolved 1, It September occurred after State], appellant. of the Timmons [v. absurd, however, require an would be supra, S.W.2d at 512 509] [1979]. [586 appeal perfected to be under one standard Gamble, supra, at 508. See also arbitrarily apply another stan- and then Therefore, appeal, quotation we find would dard. Based on the above once an appear conclusive that provisions of the Code Criminal requested demonstrates that he the court Recourse to this statute was not utilized reporter Dunn, id., Dunn, any to take notes of the trial or or in case cited in id. thereof, case, however, part present In the reporter that the court the court requested to in- substituted for the notes a written state- transcribe notes and transcription reflecting pretrial proceeding. clude such ment the record on appeal reporter’s and the court failure to. State, (Tex.Cr. James S.W. appropriately to, do so objected then a App.1911), following his conviction for un conviction must be reversed. lawfully carrying pistol, the defendant filed judgment a motion arrest of claim However, id., Dunn v. ing that no information had been filed. substantively cases cited therein are Controverting motion, the defendant’s procedurally distinguishable from the State asserted that an information had present Dunn, id., missing case. filed, provided been the court with five portions of the record consisted of the evi- attesting affidavits that an information had dentiary hearing thirty-seven pretrial lost, requested permis been filed and motions, part pro voir dire of a sion to into enter the record a substitute spective juror and the entire of a information. The trial court entered an punishment stage witness at the order substituting the information. The trial. Appeals, citing Court of Criminal Article Dunn, id., In the cases cited in the miss- 470, 1895, predecessor Code Cr.Pro. stat ing portions of the record were either the 44.11, ute to supra, Article concluded that facts, entire statement argu- the final judge the trial had the authority to make ment, or an portion essential of the trial. such a substitution. bar, In the case at missing portion twenty-three years later, Some utilizing a transcription record is a of the notes of statute that succeeded Art. Code Cr. pretrial hearing that are not essential or Pro. Art. Code Cr.Pro. applicable even to a ap- resolution of this again approved this Court of a similar sub- peal. stitution. In Fine v. 125 Tex.Crim. aspect The other of this case which ren- 337, 68 (App.1934), S.W.2d 192 the Court Dunn, id., ders precedents and the it cites charge observed that of the court “[t]he inapplicable is that the trial court was able original transcript included contains to substitute for the missing “sup- supplemental the transcript identifies the guilty. defendant was When confronted appellant’s pretrial motions that were filed with objection to the record that identi- and rulings the court’s on the motions. court, fied this deficiency, the trial after a 40.09(7), V.A.C.C.P., Article authorizes hearing, charge concluded that such a had judge, the trial when confronted with an given jury been to the and that it had been objection, after hearing, to “enter such lost charge and substituted a similar in the may orders as appropriate be to cause the supplemental record as a transcript. speak record to the truth....” Id. In At that supra, provided time Art. fact, this is the relief appellant request- the part appeal that “after notice of has been ed in Objection his written to the Record. given, any portion thereof, the record or 40.09(7), In supra, addition to Article Ar- destroyed, may lost or it be substituted in 44.11, V.A.C.C.P., ticle provided as follows: court, the if lower said court then in be In any portion cases where the record or Relying upon session....” Id. this stat- destroyed thereof is lost may or Appeals be ute the Court of Criminal conclud- substituted in the trial court and when so ed expressly that the statute “authorize[s] may prepared substituted the record be the substitution of a record notwithstand- ing and transmitted to the began ... Court Crim- the loss occurred after the trial Appeals. inal prior giving and appeal.” of notice of 44.11, Id., Further, “[ujnder significantly, the The Court trial and stated: the Court also stated: court make substitutions lost or documents, 40.09,

Appellant’s destroyed next contention the under and Sec. charge must in the as substituted be findings, supported by evidence at language charge. lost We exact of the Id., hearing, the are final.” at 50. position think this is untenable. In the case, present hearings, In the two after would, copies record, absence of of the supplemental approved the trial cases, impossible most be substitute transcript details the matters that language. the in its We record exact pretrial examined and at the were resolved requires think the law no more than that hearing. dispute The does not charge substantially the be the same as validity supplemental factual to be instruction shown lost. transcript. Since trial court has the Id. responsibility making “the record ... charge The in the Court concluded that the truth_,” 40.09(7), speak Article su- substantially record was the same as that 44.11, pra. supra, consistently Article al- given accordingly and affirmed lows the trial court make a substitution appellant’s conviction. portion for a lost record to accom- recently, Much more Broussard case, plish responsibility. such In this (Tex.Cr.App.1971), judge procedures properly utilized the again approved of a the substitution Accordingly, appellant’s available to him. portion lost of a record. After the defen- points of error one two are and denied. punishment dant and had been convicted assessed, pointed the State out to the trial Appellant challenges next the suffi original court that the indictment had been support ciency jury’s of the evidence to response, lost. the trial court issued an findings affirmative under Article 37.- declaring original order indictment 071(b)(1) (b)(2), V.A.C.C.P.3 deter misplaced had been lost or and ordered that mining sufficiency of the evidence as to another it in record. be substituted for dealing specifically first special issue indict- difference between two appellant’s conduct ments, order, according to the court’s deliberately his conduct was committed indictment did not con- substituted expectation with a that the de reasonable grand the signature tain fore- die, apply we ceased another would appeal, man. On the defendant Brous- standard set out Santana sard contended that record (Tex.Cr.App.1986): S.W.2d did not contain either “an indictment nor a legally ment_” copy indict- substituted must reviewed in the [T]he Id., at 49. light to the verdict to most favorable trier of fact determine whether rational

Recognizing applicability Ar- of both of Article could found the elements 40.09(7), 44.11, supra, Article su- ticle Y.A.C.C.P., 37.071(b)(1), to have been rejected pra, this Court con- incomplete. proved beyond tention that the record was a reasonable doubt. Wil- 37.071, V.A.C.C.P., continuing provides lence would 3. Article relevant that constitute part: society; to threat able that caused defendant ceased or committed evidence, issues to the (1) (2) (b) expectation whether there is a On conclusion of the the would another deliberately and with the reason- the jury. the commit death that conduct would shall the death of the submit criminal acts of vio- probability result; presentation of the the defendant deceased the following de- return a death. issue submitted. ing the court shall sentence beyond The state must (e) on If ^{[******] [******]} each issue submitted a reasonable the special verdict of returns prove doubt, each an affirmative find- ‘yes’ the under and the issue submitted or ‘no’ defendant this jury on article, shall each to Road, (Tex.Cr. attempt in an State, Sandy Point Bryan son 654 S.W.2d 465 to v. appellant’s girlfriend. prior Just App.1983). to locate Then we must determine destination, reaching appel- their supports evidence to whether the same road, con- ran off the struck a appellant’s inference other than that lant’s vehicle a fence. Fol- sign and crashed into causing post, duct to the death contributed deliberately parties the wreck the continued lowing the deceased committed girlfriend. They for Harris’ expectation and with the reasonable their search At girlfriend. the death or another failed locate Harris’ some deceased to does, point appellant’s If it of fact car stalled and would would result. a trier reasonably ‘yes’ special Appellant, and Harris could not find on not start. Manuel one, upon attack punishment issue and the then into a crazed number launched it, interior, imprisonment. cursing ripping to life must be reformed vehicle (Tex. window, State, breaking inflicting various Green v. S.W.2d damage Cr.App.1984). on it. other Being parties’ to solely Apparently hearing aware that we look concen- reflecting appellant’s uncooperative car, conduct trated attack their considering parties, without porch nearby law of man came out onto the of a State, (Tex.Cr. Appellant requested Nichols v. S.W.2d 185 house. the use of bat- App.1988), cables, viewing in the tery but man did not booster verdict, light jury’s Appellant most favorable to the at that location. then others, we find the evidence was sufficient to es “Twelve commented miles is beyond walk,”4 tablish long way they began a reasonable doubt that appellant’s causing along Sandy conduct contributed they walk Point Road. When deceased, Merka, the death of the Timothy lights approaching pick- later saw and was up appellant going committed delib truck said he to ask erately with expectation Appellant the reasonable for a driver boost. then that the deceased’s death on-coming would result. stood in the road in front of the making driver, its decision the pickup flagged was entitled truck and down the consider help get crippled all of the evidence dur requesting submitted their vehicle ing guilt-innocence phase of the trial. Tim Merka stopped, started. to com- State, supra, 8; Santana ply request, v. their positioned Green his truck 287; supra at O’Bryan appellant’s with the nose-to-nose vehicle in S.W.2d (Tex.Cr.App.1979); Duffy properly battery v. order to use the booster State, 567 (Tex.Cr.App.1978). S.W.2d 197 cables.

Although appel reveals that Becoming watching ap frustrated after lant’s brother was the individual actu who pellant unsuccessfully try and his friends ally proved struck the blows ing the car to start for about 20 to 30 Merka, terminal appellant’s for evidence of minutes, suggested the deceased participation responsibility and his for the get foursome assistance from someone else jury’s murder and supports is clear point down the road. It was finding individual “deliber plan devised the to murder ateness” a reasonable doubt. pickup Merka in order to truck steal his evening Bryan. According evidence shows that on the back to ride to Val Rencher, driving appellant approached December vehicle erie co- codefendant, defendant, Manuel, apparently stolen James and discussed Manuel, appellant something James Charles Ma- and with him. She then heard Ma picked brother, “Man, nuel up appellant’s my Curtis nuel is still reply, arm out of girlfriend, place.” appellant Paul Harris and his Valerie Rencher then overheard brother, going Rencher. The from whisper foursome then drove to his “We’re to destination, Texas, Referring origin Bryan, 4. to the of the where all members of the four- Green, id., point This of error is this man.”5 While the deceased was 289. drive overruled. unhooking his cables from the two booster him,

vehicles, appellant approached pushed Appellant’s challenge to the suffi chest, and Merka the deceased in the when ciency support jury’s of the to the evidence appellant his sat on his chest fell on back special affirmative to issue number answer holding his pinned down and his arms said is also merit. As we have two without ap Paul Harris then wrists. Curtis cases the on numerous occasions some “[i]n holding appeared to be a proached, what sus circumstances the offense can alone apparent jack, and while the deceased was second tain an answer to the affirmative Green, id., life, issue, 37.071(b)(2).” hit Art. ly begging for his the deceased 289; Duffy, supra. The O’Bryan, supra; repeatedly they head until concluded the case warrants such a circumstances of this pockets he The that was dead. noted, appellant finding. previously As the ransacked, deceased were then his wallet willingly participated in the offense with truck as the pickup taken and the stolen demonstrating planned that he the evidence Bryan headed to and the Harris four back robbery intent to kill Merka the with the Bryan, ap On ride back residence. to to having to to back order avoid walk Rencher, in a manner pellant cavalier told before, fact, Bryan. his entire attitude die, just “if time to it was man during offense showed com after and man time die to [sic].” contempt sanctity of human plete for Notwithstanding appellant that the addition, punish life. the State at the physically not the one who dealt the blows appellant phase that ment offered evidence victim, knowingly actively to the he felony previously convicted of a had been participated in In addi- the vicious attack. being reputation for offense and that his conclusion, tion, the evidence dictates the law-abiding peaceable citizen was bad. insti- that was indeed the unadjudicated offenses Coupled with the example, appellant only gator. For evidence, effec the State introduced into approached to enlist his services Manuel consist that tively substantiated attack, engaged pattern but when that was unsuccessful con ently in a violent society. encourage posed danger that he was able to his brother duct evidence, light favorable Further, viewed in a most pushed assist. he Merka for verdict, is therefore sufficient him his ground pinned there while is a there jury to have found that exceptionally administered an bru- brother commit probability appellant would that beating, plead tal even after the victim would constitute acts of violence that life, telling appellant his his cohorts Accordingly, continuing society. threat just spare him they take what wanted but point of is overruled. concluded, beating his life. After the had Merka ve- appellant, once inside the the tri Appellant next contends hicle, that he desired demonstrated when it reversible error al court committed and cruel death of victim callous guilt-inno jury failed to instruct just effect it was comment stage that Valerie proceedings cence Surely, these Merka’s time to die. under matter of accomplice as a Rencher was an Rather, circumstances conduct jury was submitted law. Merka, intentionally the death of requiring caused instruction them to determine as a beginning accomplice “from to end ‘delib- but whether Rencher was evince[d] timely ob- 37.071(b)(1).” Appellant both article matter of fact.6 erateness’ under complice first believes that unless the some resided. accomplice’s is true and that explained, phase, Rencher "drive guilty of the of- shows the defendant man,” person. meant rob the him, charged you cannot and even then fense testimony accomplice’s convict unless as follows: 6. The court instructed tending to corroborated other You are instructed a conviction further the offense defendant with connect upon ac- cannot be of an had

579 jected charge State, (Tex.Cr.App. spe- to the and submitted a Ware v. S.W.2d700 requested cial instruction were over- 1987); Calvin, S.W.2d 460 parte Ex ruled the trial court. State, (Tex.Cr.App.1985); Willis v. (Tex.Cr.App.1972). S.W.2d 303 This issue noted, As the trial instructed court the having adversely previously been decided jury question to decide the fact as to accomplice, him, point appellant’s Rencher was an but is over appellant the claims that evidence dem the State, supra, ruled. v. at Harris 454. accomplice she onstrated that was an as a law; therefore, according matter of previous to the In a matter related to the appellant, jury should have been point error, requested had given making opportunity this deter special that a issue be submitted appellant’s appeal, mination. In the first jury asking them to or not answer whether State, supra, Harris v. we reversed the they accomplice, found Rencher an this re appellant’s conviction we when concluded quest was also denied the trial court.8 court failing the trial erred in to sub Appellant’s ruling claim that the court’s jury question mit to the of whether was in error is without merit. Not did an accomplice, Rencher was but that the accomplice properly witness instruction did show that Rencher was protect and adequately appellant, but Arti indicted for murder for which 37.07, 1(a), Y.A.C.C.P., cle provides that § trial, was on so as to her make an accom in every verdict action criminal shall “[T]he plice State, as a matter of law. Harris v. general.” Thus, be as was stated Stew supra, at 454. “Under the doctrine of ‘the State, (Tex.Cr. art v. 686 S.W.2d case,’ law of the where determinations as -App.1984),“[ojther than the provisions questions already law have been made 37.071, V.A.C.C.P., jurispru Article Texas appeal prior to a the last allowing dence authority has no the sub resort, those will determinations be held to mission of special issues to in a govern throughout the case all of its subse criminal say case.” This is not to that a quent stages, including a retrial and a sub sequent special appeal.”7 State, constitutionally v. issue could never be Granviel S.W.2d 147 (Tex.Cr.App.1986). necessary despite statutory prohibition See charged, did, object, and the corroboration is not suffi- a hard head with metal if he merely cient if it shows the commission of Timothy specific had the intent to kill Michael offense, but it must tend Merka, then, to connect the defen- you and even before can convict dant with its commission. defendant, HARRIS, you DANNY RAY Now, you if believe from the evidence that evidence, beyond must from all believe witness, Rencher, Valerie Denise was an doubt, defendant, that the reasonable DANNY you accomplice, or have a reasonable doubt HARRIS, guilty charged. RAY of the offense not, whether plice’ she or as term ‘accom- instructions, foregoing is defined in the judice 7. We sub observe the case no you you are further instructed that cannot evidence was introduced to show that from the defendant, HARRIS, find the RAY DANNY time first trial until ended the com- guilty charged against of the offense him second, mencement of Valerie Rencher had upon testimony Valerie Denise Rencher’s un- Bentley been indicted as State, codefendant. See you less first believe that said (Tex.Cr.App.1975); 520 S.W.2d 390 Hen- true, guilty and that it shows the defendant is State, (Tex.Cr.App. dricks v. 508 S.W.2d 633 charged as in the indictment even then 1974); (Tex.Cr. Allen v. you you convict the cannot defendant unless App.1970); 441 S.W.2d 539 Gonzales further believe there is other evidence in (Tex.Cr.App.1969). the case outside the said first, tending Valerie Denise Rencher to show Appellant request special submitted a that the defendant, HARRIS, DANNYRAY phase innocence instruct- Harris time Curtis struck deceased on ed as follows: did, object, the head with a hard if he metal evidence, you Do find from the Harris, together acting was did, with Curtis if he doubt, reasonable Valerie witness committing and was in the course of accomplice Denise robbery Timothy Rencher not an offense of Michael Mer- second, ka, HARRIS, if above offense was committed? RAY defined that DANNY Harris, did, acting together do" or Answer "we "we do not” Curtis he _ time Curtis Harris struck deceased on Answer: 37.07, 1(a), prevent In supra. special impo- of Article issues in order to § case, however, the trial court was correct The penalty. sition of death record request. denying appellant’s clearly Mojie demonstrates that as to A. Lawler, Burgoyne, Aubrey Thomas Edwin In appellant’s next four related Smith, Jean Cleveland and Jeanne Marie a error, points of it is his contention that the constitutionally acceptable basis existed to impermissibly granted trial court support the trial court’s conclusion that the challenge and State’s for cause excused venireperson’s scruples conscientious to- Mojie Burgoyne, venirepersons Thomas Ed penalty wards the death would them affect Lawler, Cleveland, Aubrey win Jean and degree “to such and such an extent Jeanne Marie Smith in violation of the re performance juror as would [their] Texas, quirements as set out Adams v. . substantially impaired.” parte Ex 38, 2521, 448 U.S. 100 S.Ct. 65 L.Ed.2d 581 Williams, supra, Accordingly, 464. at (1981); Witt, Wainwright v. U.S. points of error are these overruled. (1985) 83 L.Ed.2d 841 S.Ct. Illinois, Witherspoon v. 391 U.S. Appellant next claims the trial (1968). S.Ct. 20 L.Ed.2d erred when it sustained State’s Supreme challenge venireperson it clear in for Court made cause as to Kar Witt, Lockhart, supra, “that Leah Wainwright prop- unequivocally en after she pro- response hypothetical determining ques er standard for when a stated in to a spective juror be excluded for cause tion that if an was convicted of the accused pun- murder, capital of his or her views on lesser included offensé of she because ishment,” juror’s probation is the punish “whether view could not consider phase ‘prevent substantially impair the ment trial. Defense would counsel interposed objection his performance juror duties as that Lockhart’s given unequivo his total express accordance with instructions view did not [as ” pun inability the trial and oath.’ cal to consider the minimum Wain- court] Witt, id., ishment lesser included offense of wright v. 105 S.Ct. for the Williams, given he parte also Ex 748 S.W.2d murder and that should be See (Tex.Cr.App.1988); Hughes, opportunity prospective Ex to rehabilitate the parte juror. response, trial court allowed (Tex.Cr.App.1987). 728 S.W.2d 372 Rela- questioning Lock- prospective jurors to the four the defense to continue tive reiterating previous her quote find no need to detail or hart with Lockhart cause we venireperson position. as it At conclusion of voir dire dire of each would voir examination, lodge unnecessarily only unduly and add to the did length opinion contributing objections. of this without additional jurisprudence of this State. time, brief, for first In his exclusion

It is to observe that as to each that Lockhart’s sufficient claims im- court, prosecutor, fair and the trial denied him a which was venireperson partial penalty, the death attorney thoroughly subject ex- on the and the defense attempts propo- statutory tenuously to assert the scheme envisioned plained juror who 37.071, venireper- he entitled to supra, and each sition that Article range minimum acknowledged understanding could not consider the son essence, venireper- punishment. need not reach the merits the four We process. It sufficient to queries posited appellant’s contention. responding to the sons circumstances, appellant’s objection to the point cast out that they, no could under sustaining State’s special issues trial court’s action affirmative vote to both totally challenge different them at the for cause may be submitted to presents he to this point from of error phase the trial so punishment time. The Court for the first trigger assessment automatic comport with Further, point simply of error does by the trial court. penalty death he hence did not objection necessary they would his they stated that which he now preserve appeal the issue consciously distort their answers challenge seeks us to We overrule an review. therefore denial of valid for his of must point tenth error. cause it be demonstrated that: See Garcia v. (Tex.Cr.App.1981). S.W.2d 1. The voir dire of the individual venire- person was recorded and transcribed. point eleven, ap- In of error number 2. The asserted a trial clear pellant contends that the trial erred court specific challenge clearly cause for failing in challenge to sustain his for cause articulating grounds therefore. venireperson as to Edna L. Thornton. Con- challenge 3. After the for cause is de- pro- verse to the usual mode of voir dire by court, appellant nied trial uses a ceedings, sought challenge the appellant peremptory challenge juror. 35.16(c)(2), Thornton on the basis of Article peremptory challenges 4. All are ex- supra, she stated in no uncertain hausted. greater terms that the State should have a proof peremptory challenges

burden of than 5. When all that of a have exhausted, appellant been makes a re- capital Appel- reasonable doubt case.9 quest for peremptory additional chal- argument lant’s is that he entitled to was lenges. juror capable applying appro- have a of

priate proof phases Finally, burden of at all of the must defendant assert objectionable juror trial. sat on the point The case. should out to Payton In 572 S.W.2d 677 being the trial court that he forced to (Tex.Cr.App.1978), this Court summarized case try juror with a seated whom he requirements necessary preserve er peremptory would have exercised a chal- ror due trial court’s denial of a lenge had he had one. challenge defense for prospec cause of a case, although appellant In this juror: tive perempto his brief maintains that all of the issue concerns denial [W]hen challenges ry to which he entitled un challenge cause or of a exclusion 35.15(a), V.A.C.C.P., der Article were ex qualified venireman, only the examina- hausted, the record indicates the con tion of the individual venireman need be dire,10 trary. Reviewing voir the entire in the The harm may record. shown unequivocally record demonstrates that af in the of challenge by denial for cause jurors ter the selection the first twelve showing exhaustion of the defendant’s prior to the selection of alternate peremptory challenges, denial of a re- juror, appellant had not all of exhausted quest peremptory for additional chal- fact, peremptory challenges. fifteen lenges, seating upon and the juror process selecting during the the one whom the defendant would exer- juror, appellant attempt alternate made cised peremptory challenge.... remaining one perempto to exercise of his Id., at 680. challenges ry which the court trial correct Thus, ly prevented order warrant a him doing reversal from accordance 35.15(d).11 this Court for the trial court’s erroneous with the dictates of Article Fail- portion provides: example, 9. The relevant Article 35.16 the volumes of the statement facts properly, were not numbered some volumes (c) challenge A for cause be made apparently missing, were and there was not following the defense for of the reasons: jurors ****** even a list of the the case. It that heard after the record returned to [venireperson] 2. That he a bias or has steps were to correct the taken prejudice against any applicable of the law courts, problem. Trial the State the defense upon case the defense is entitled to favorably bar should note that this Court is not rely, phase either a defense to some disposed preparation to correct errors in the being prosecuted offense he is or as for which the record. mitigation punishment thereof therefor. 35.15(d), supra, 11.Article reads: only appropriate 10. It State and the shall each be observe that defendant record, challenge peremptory when was received and in this to one in addi- filed entitled Court, was, kind, simply For those law if one to be a mess. tion to otherwise allowed case, ing capital felony peremptory to exhaust all of his chal- the court shall panel prospec- lenges, appellant comply propound to the entire did not jurors questions concerning step necessary preserve princi- tive fourth to error. trial, ples, understandably, applicable as to the case on of appel- Moreover and doubt, proof, reasonable burden of re- nor lant neither claimed the trial court by grand jury, pre- turn of indictment compelled before Court that he was innocence, sumption of opinion. try jury composed with a of at case Then, on demand of the State or defen- he least one individual who would have dant, is entitled to examine each either challenge peremptory had struck with a juror individually apart on dire voir being one been available to him. That may panel, from the entire further case, any error which been com- question juror pro- principles on the appel- in denying mitted the trial court pounded by the court. challenge properly for cause was not lant’s preserved Accordingly, appel- for review. Appellant is in his assertion that correct point eleventh overruled. lant’s error is comply the trial court failed to with the however, dictates; under statute’s we find thirteen,

In points of error twelve and the circumstances of this case that appellant alleges that the trial court com- 81(b)(2), Rule error was harmless under failing mitted reversible error in to sustain It Tex.R.App.Pro.12 is evident from the venireper- challenges for cause as to juror who ulti- prospective record that each Appel- sons Judith Lewis and Linda Smith. juror questioned by as mately served venireperson lant claims that Lewis demon- court, prosecutor, and de- either the trial applicable to strated a bias toward the law attorney to the matters encom- fense as the case when she stated she could Further, it passed by is clear the statute. probation if con- consider the accused was principles. these juror that each understood victed of the lesser offense of murder. addition, charged properly the. trial court Smith, according appellant, indicated and burden of the standard if the was convicted of the innocence, proof, presumption lesser of murder she included offense using prohibition of the return of an on the require present him to evidence be- would as circumstance indictment ap- The probation. fore she could consider Furthermore, against the accused. challenge expended peremptory pellant any totally record is devoid prospective juror. previously As each juror any indicate that seated which would noted, preserv- was infirm compre- could not or did this case he ing this error as it was not asserted that of law principles identified hend basic objectionable accept juror. forced to Granted, 35.17, supra. is stat- Article points of error are Consequently, these pro- trial court utorily required that overruled. therefore jurors pound questions and instruct the point of voir prior fourteenth to individual dire. on the law Nevertheless, complains he the trial court cannot conceive of error we requirements way could have comply with the the trial court’s omission failed V.A.C.C.P., 35.17(2), appellant’s conviction and this consti contributed to the Article beyond 35.17(2), a rea- punishment su and determine error. Article tutes reversible 81(b)(2), it did not. Rule doubt that provides as follows: sonable pra, provides: 81(b)(2), Tex.R.App.Pro., jurors impaneled are to be Rule or two alternate peremptory challenges four if three or and to (2) appellate record in Criminal Cases. If jurors impaneled. are proceed- alternate error in the criminal case reveals challenges below, provided peremptory ings additional court shall reverse review, against appel- alter- may be judgment this subsection used unless under only, peremptory juror a reasonable and the other determines nate late court challenges no contribution to may not be used that the error made allowed law doubt punishment. juror. [Emphasis conviction or against added] an alternate Tex.R.App.Pro,13 Sally through testimony Looper. As in Phillips was stated In appellant’s points next four (Tex.Cr.App.1983): he seeks a reversal because the intro- State State, supra, In Albrecht v. it was guilt-innocence duced into evidence at the relationship that a stage held between evidence of the trial two extraneous offenses of the extraneous transaction and the timely objections. over his The first extra- prove necessary neous matter the ac concerned Sally Looper, the substance of cused committed the crime for which he Manuel, codefendant, charged that James a had sto- stands shown. In must be Tom State, (Tex.Cr. len a one vehicle from Cornelio Cisneros on v. 422 474 linson S.W.2d night of the Merka CiSne- App.1968), again Thompson murder. The and v. as ultimately State, ro vehicle identified (Tex.Cr.App. 1981), was 615 S.W.2d 760 by appellant, driven damaged one and explained the rule was clearly: even Sandy abandoned on Point Road though evidence of an extraneous of appellant companions. and his The trial fense pro relevant instant Loop- court allowed the introduction of the ceeding, such evidence should not be ad testimony notwithstanding er the fact mitted unless the commission of the oth was identify appellant she unable to as clearly er crime is proved and the ac participant in the theft of vehicle. is shown the perpetrator. cused to be The second extraneous incident deals with Id., at 418. King, of Barbara Gilmore case, In the instant the State not night who related on the Merka appellant failed to establish that the had murder three men black robbed her in a knowledge that the Cisnero’s vehicle was Waller, Texas, convenience store where by Manuel, stolen he in any way but that employed she was night The clerk. perpetrator was a of the extraneous of- indicates this incident took This fense. therefore was irrele-

place robbery sometime after the Merka vant and inadmissible and the trial court and, and although murder King could not by allowing committed error it to be intro- identify the appellant as a participant duced. robbery, incredibly somewhat she was able to shotgun state that the had which The evidence of the Waller robbery previously been belonging identified as one poses question, yet a more difficult we very to Merka was one used one of reach the same The in conclusion. State culprits to execute the robbery.14 this sists that extraneous transaction was admissible demonstrate context of The State counters that extra both theory criminal This act. neous offenses were admissible as “res admissibility succinctly explained by gestae” of the offense to show the context State, 607 Court Archer v. S.W.2d citing the criminal act occurred (Tex.Cr.App.1980): (Tex. State, v. Woolls Cr.App.1983). disagree. We As to the one Where offense is continuous Looper transaction, testimony, it part fails to meet the first or another offense is prerequisite necessary basic closely to warrant the case trial or or blended interwoven, introduction proof of an all such extraneous offense. facts is stated, Simply showing State, proper. there was no clear Welch v. S.W.2d Tex.Cr.App.; that the participated in the extra Johnson neous Tex.Cr.App. transaction offered State Such an S.W.2d extra Waller, Texas, object We also observe that did not el drove to U-Totem in where request comply make that the got pickup the three men out of the truck with 35.17(2), supra. Article shotgun the Merka and returned to the truck expiration after She five minutes. stated timely interposed objection, 14. Over a Valerie knowledge happened she had no as to what murder, she, Rencher also testified that after the inside the store. Harris, appellant, Curtis Paul Manu- and James the entire neous offense is admissible show State show to con- in which the criminal act oc Scrutiny context text of the defendant’s conduct. curred; ‘res this has been termed the of the instant case reveals that the Waller gestae,’ reasoning under the that events robbery completely disassociated from do occur in a vacuum and that robbery. Although, the Merka murder right to hear what occurred has Rencher, according to the Merka vehicle immediately prior subsequent U-Totem, was indeed to the Waller driven they so the commission of act failed to establish a sufficient State may realistically evaluate evidence. robbery and link between this the instant Tex.Cr. Albrecht S.W.2d robbery The Merka murder offense. App. complete this extraneous act oc- when Id,, curred, at 542. admitted no evidence was showing robbery was utilized to exception of this to the rule essence capture. acceptable can see no evade We against the introduction extraneous and the connection between offense is that these extraneous of- transactions robbery offense. The was a Waller Waller tightly princi- fenses are so linked with the separate independent offense commit- ple that their introduction enables offense aid pure profit, ted and could not the for in its charged the to view the offense understanding jury in the factual context State, setting. proper Mann v. 718 S.W.2d violent, nonsensical words, of other (Tex.Cr.App.1986). In the other Therefore, the trial court erred in conduct. extraneous offense establishes the context evidence. allowing the introduction the Integral exception, of the offense. to this however, prerequisite is the that the extra- Now, determine whether the we must and the offense on trial neous transaction introduction of these two extraneous of- closely must be so "blended or interwoven” under fenses resulted reversible error epi- constitute continuous they “one 81(b)(2), Tex.R.App.Pro. Mallory Rule State, v. 721 S.W.2d sode.” Moreno State, (Tex.Cr.App.1988), v. 752 S.W.2d 566 (Tex.Cr.App.1986);Archer v. su- 81(b)(2)was the recognized we that Rule pra; Mitchell equivalent of rhetorical and semantic (Tex.Cr.App.1983). by the error standard announced harmless This case is unlike the factual scenario errors in Supreme for constitutional Court Moreno, supra, the defendant wherein Chapman 386 U.S. California, sister-in-law, Juan killed his brother (1967).15 We 17 L.Ed.2d 705 S.Ct. Garza, flight during and Ester rule is a ter- went on to observe trooper crime a State from that he killed reversal nary in which standard of review hostage. On and took several witnesses ap- of a is unless conviction mandated murder, trooper’s for this Court beyond a reason- pellate court concludes proof of the extrane- sanctioned the State’s contribute that the error did not able doubt half hour ous events which occurred as- punishment or the to the conviction shooting of officer and the prior to the sessed. subsequent in his continued effort events 81(b)(2) Although has Rule capture. Other than Garza to evade Court times been cited innumerable murders, all of the extraneous events appeals, courts of as well into occurred were admitted language of the rule simply repeating the escape flight from Garza during or terms, failed to artic conclusory we have closely so interwov- thus were murders and determining ulate a coherent standard continuous transac- to one en as amount In other an error is harmless. making appropriate it when episode or tion deprive a did not ate reversals when error The Riddle Harmless In his well known 15. procedures fair party essential Roger Traynor of rules or observes that the source Error Harmless Traynor, Riddle trial.” See The error rule were statutes enacted the harmless Columbus, (Ohio University Press: State England States. The Error later in the United Ohio, 1970) p. 14. purpose were "to obvi- of the statutes essential words, expressed Supreme The cautioned the harmless rule is Court subjec- in conclusory implicate terms that appellate “it not the function to court’s tive concerns. What is absent from determine or innocence ... is it [N]or rule is the objective standards that must be speculate upon probable reconviction and explored legally resolu- reach correct according speculation decide to how regard tion. In emphasized it must be Id., comes out.” S.Ct. at 1247. appellate of an court’s function Thus, quite simple is not appropri- so analysis harmless error is not to determine inquire: ate to would the have appellate how the court would decided been convicted in event? facts, extent, but to determine to what However, suggest it is absurd to that an any, an error contributed to convic- appellate court can insulate itself from the tion or punishment. language record; thus, reality virtually the rule dictates that a court’s reviewing impossible ignore for the its sub- responsibility determining transcends jective evaluation of the result below. Con- whether the conviction was correct. observation, sistent with this the Court in In performing analysis a harmless error Kotteakos further commented: consequently easiest and the most con- But this does not mean that the approach employ venient one could is to escape can altogether taking ac- determine correct result was weigh count To outcome. Or, despite achieved the error.16 notwith- against effect setting error’s the entire error, standing light of all admis- record without relation to the ver- sible the evidence was fact deter- finder’s judgment dict or be would almost guilt clearly mination of Stated correct? in a work vacuum. way, overwhelming another there evi- 764, Id., dence of that was not at 66 S.Ct. at 1247. tarnished approach the error? This is incorrect be- repeated This view was in Fahy v. Con- cause language the of the rule focuses necticut, 85, 229, 375 U.S. 84 S.Ct. 11 upon remaining the error evi- (1963), 171 Supreme L.Ed.2d when Thus, dence. logically follows that Court stated: inherent difficulty equation with such an is are not here We concerned with wheth- in applying only that standard er there was sufficient evidence which appellate necessarily court envisages what petitioner could been have convicted result it would have reached trier of as a complained without the evidence of. The fact, thereby effectively substituting itself question is whether there is a reasonable for jury. the trial court or the possibility complained that the evidence ago This was made clear four decades might of have contributed the convic- States, 750, Kotteakos v. United 328 U.S. To question, tion. decide this it is neces- 1239, (1946). 66 S.Ct. 90 L.Ed. 1557 sary to review the facts of the case and Supreme initially re- Kotteakos the Court adduced at trial. viewed purpose the historical of the harm- Id., 88, at 84 S.Ct. at 231. acknowledged less error rule and then noted, 81(b)(2) As Rule mandates of the rhet- obvious: all formalistic appellate upon focus application oric the of error harmless error and determine judgment. rule one of whether contributed basically is punishment. error to the conviction or the Irre Court commented a harmless spective inquiry, of the easy is task focus of it is review not an “because significance requires judg- impossible gauge discrimination it is one of remaining from transcending apart properly ment confinement formal Id., 761, precise approach rule.” 66 evidence. S.Ct. admitted This obvious- Field, commonly compels guilty.” "Assessing 16. This is referred to as the “over- a verdict of whelming evidence” test. Under this test one Harmfulness Federal Constitutional Er- evidence, Rationale,” "does not look to the tainted but to the Process in ror—A Need of 125 evidence, (1976). untainted and asks it alone Univ. Penn.L.R. 15 586 evidence, 427, Florida, v. 405 92

ly implicates a review of the but U.S. S.Ct. Schneble 1056, (1972). L.Ed.2d In both cases 31 340 solely impact the concern is to trace the Supreme again Court claimed error. The untainted evidence not harmless, Chapman, despite errors were weighed in right, its own nor is it to be by noting overwhelming there was examined to see if it is cumulative with the guilt. Recently, evidence of Delaware v. evidence; it is tainted to be considered 673, 1431, Arsdall, 475 106 U.S. S.Ct. Van potentially damaging ramifi- to uncover (1986), extending 89 L.Ed.2d 674 words, the cation of the error. In other harmless error rule to violation one’s impact properly error cannot be eval- right Sixth to cross-examine a Amendment examining uated without its interaction witness, Court, Supreme implic- at least with the other evidence. overwhelming itly, applied an in the important It is to note that context Similarly, standard to the error. in Rose v. analysis evi of a harmless error the other 3101, Clark, 570, 478 U.S. 106 S.Ct. the dic dence is the entire record. Unlike (1986), L.Ed.2d 460 the Court cited 307, Virginia, tates v. U.S. Jackson guilt in overwhelming evidence of deter- (1979), in 99 S.Ct. 61 L.Ed.2d 560 improper jury instructions that mining that incorrectly proof resolving the issue the harmfulness shift the burden subject a harm- defendant was an error obligated to an error an court is analysis. less error neutral, im examine the entire record partial and even-handed manner and this trend inexplicable For some reason prosecu light “in the most favorable to the v. ended with Satterwhite seems Id., 99 S.Ct. at 2789. tion....” Texas, 486 U.S. S.Ct. (Tex. (1988). See Butler L.Ed.2d Satterwhite agreed Cr.App.1989). Supreme A review of the evidence with this Court that 454, 101 Smith, because, 451 U.S. S.Ct. necessary ex an Estelle this manner (1981), subject error is 68 L.Ed.2d 359 ample, an error can be harmful when it has However, in rule. to the harmless error defense, disparaging the effect of where reversing defendant’s death sentence the is if there no defense the error could as Supreme disagreed the Court with harmless. have been Grigson’s taint Dr. Court’s conclusion that Supreme The United States Court beyond a rea harmless ed it has been as evasive as this Court when citing any case Without sonable doubt. establishing any stan comes to coherent error, except Chap dealing with harmless noted, As judge harmless error. dards to Supreme supra, the man California, v. States, supra, and in Kotteakos v. United noting evidence to Court the substantial Connecticut, supra, v. the Court con Fahy support instead focused penalty the death overwhelming evidence stan demned the Grigson’s testimony upon impact the of Dr. California, supra, Chapman In v. dard. upon jury. the The possible and its effect Court, Connecticut, su citing Fahy Court, the over Supreme dispensing the with test, test, the rejected whelming a least for clearly “correct result” pra, evidence being, time stated: to be the correct result was particularly however, sufficiency the not simply by the question, measured The However, was suffi- evidence legally the admitted to sustain conviction. evidence sentence, 250, support the death cient 395 U.S. Harrington California, in was, rather, it but which we assume 1726, (1969), the 23 L.Ed.2d 284 89 S.Ct. proved ‘beyond a has whether the State departed arguably from its condem error com- the reasonable doubt it the correct result test when nation of the ver- not contribute to plained of did confessions improperly admitted found that U.S., at Chapman, 386 dict obtained.’ the evidence and of other were cumulative S.Ct., at defendant against the untainted Id., 108 S.Ct. at 1798. overwhelming. approach contin This reconciling in the various Wainwright, difficulty U.S. ued in Milton v. rule, error (1972) applying harmless and cases 33 L.Ed.2d 92 S.Ct. Arsdall, did; determining supra, propriety it is not Chapman, from to Van jury on relied. changing from stan- the evidence which supra, does not arise review, ruling upon what changes but from in the Because it is instead dard of rely on personnel empha- jury relative would do if forced to Court’s evidence, justices placed substituting on it is itself sis that individual different jury considerations of the extent for the factfinder. relevant changes harm. Such should serve Field, “Assessing Fed- the Harmfulness of process on error cast doubt of harmless eral in Constitutional Error—A Process Instead, they re- analysis. are natural Rationale,” Need of a 125 Univ. Penn. inherently process. of an subjective flection (1976) L.R. discrimination error it [T]he [harmless Rather, court analysis] judgment requires is one possible should calculate as much as transcending confinement formula probable impact of the in faculty precise rule. That cannot ever light of the other existence evidence. words, wholly imprisoned in much less be matter, practical As a this is a distinction what upon such a criterion as are without a difference. both instances technical, rights; what substantial and presence overwhelming evidence of really hurtfully. what affects the latter resolving plays a determinative role play impression Judgment, Nevertheless, making analy issue. along intelligence, with varies conviction predominant sis the concern must be judges and also with circumstance. If error. the court rules that an error is may What be technical for one is sub- asserting harmless it is in essence another; minor un- stantial what of the error is nature such it could important setting one crucial anoth- jury, must have affected so er. overwhelming have relied on evidence of Kotteakos, supra, 66 S.Ct. at 1246. guilt place. overwhelming in the first If Thus, guiding the most this Court can do in dissipates upon error’s effect future analysis harmless error is to state jury’s determining facts function general 81(b)(2) formulation of re- what so that did not contribute to the verdict quires, general set out considerations Otherwise, then error is harmless. relevant, and trust individual not. judges to use these observations in their summary, reviewing personal calculus. in applying the harmless error rule should can What be resolved from all of this the out upon propriety not focus of the confusing conflicting rather at times Instead, appellate come the trial. an authority is that an court should integri court should be concerned the not determine the harmfulness of an error ty process leading the the to conviction. by examining simply whether there exists Consequently, the should court examine overwhelming support de- evidence to the error, the the nature of the source guilt. impropriety fendant’s of this error, or whether to what extent it was is: standard State, probable the emphasized by and its finding a that a of harmless- court makes Further, implications. court collateral the overwhelming ness under the weight juror should consider how much finding is not that ... did test the [error] place probably upon the In would error. not in fact affect the verdict. addition, the must also determine declaring the error harmless

whether repeat to simply encourage The court’s affirmance indi- would the State it with reviewing summary, the opinion impunity. cates its that the untainted evi- In weight overwhelming jury if the should focus not on the dence so that court alone, guilt, but on compelled rely on it it other evidence rather had been might possibly the holding, have In whether the error issue would convicted. so prejudiced jurors’ the decision-mak- passing upon jury what the court have argument jury in its final and made no comment ing; it ask not the should result, addition, but rather being reached the correct car In the about the stolen. properly to jurors whether the were able robbery appel- offense occurred after the apply reach a law to facts order to likely lant killed the deceased so it is not Consequently, reviewing verdict. court jury that would have considered on upon process focus and not must persuasive latter offense as evidence that words, reviewing result. other sequence he committed the former. If the always trial must examine whether the was opposite had an of events been the then essentially fair If the error was of one. opposite might necessary. result Be be juror’s magnitude disrupted it probable may, impact that as it of this evidence, no mat- orderly evaluation of minimal, if any. on the was been, might overwhelming it have ter how Again, tainted. it is then the conviction is Appellant raises two concomitant not the other of the error and effect points of error connected with the extrane reviewing evidence that must dictate First, appellant offenses. contends ous judgment. court’s that the trial court erred when failed having grant appellant’s

General considerations motion for mistrial out, only provide left testimony been set we are on Looper’s a result of direct proce A place them. skeleton which testified examination when she reaching determination dure for codefendant, Manuel, James had stolen first, all its isolate error and should: interposed Appellant vehicle. Cisnero’s effects, set using the considerations out opinion objection was such sug other considerations above hearsay. The trial court sustained case; gested the facts of an individual dis objection and instructed the second, trier of ask whether a rational Therefore, testi regard. any error different result might fact have reached a Looper cured mony of its effects had not resulted. the error and sustaining action court’s immediate instructing jury to dis objections and to this Applying these standards State, e.g., Thompson v. See, overwhelming regard. recognizing that case and 1981); Thomas v. considered, (Tex.Cr.App. can be factor to S.W.2d State, (Tex.Cr.App.1979); a reasonable doubt we conclude 578 S.W.2d (Tex.Cr. two that the introduction of the extraneous Mistrot v. 471 S.W.2d offenses, erroneous, did not contrib albeit v.White App.1971); punishm ute to the conviction (Tex.Cr.App.1969). accomplice to the testi

ent.17 addition testimony, King’s Rencher, As Barbara mony of Valerie State complains was the Merka should able to show that not ap identifica proximity in-court vehicle found close as the suppressed been sug items impermissibly but several be pellant’s upon residence tion based in an longing to Merka were hidden area is without line-up. This contention gestive Appel from home. yards one hundred the previously determined have merit we to the homicide lant further connected testimony in its harmless nature belonging to by having shotgun the sold addition, is abun the record entirety. In in the Merka to an individual of King’s identification dantly clear that neighborhood. independent totally of appellant was procedures which pretrial identification apparent reviewing the record is State, 614 v. occurred. Turner may have attempting to taint was not that the State (Tex.Cr.App.1981); Jack 144, 145 S.W.2d offering as the process in the trial (Tex.Cr. State, 123, 130 son v. Further, 657 S.W.2d State the extraneous offenses. State, 480 v. robbery App.1983); Thompson S.W.2d only passing reference made pursuant to phase robbery punishment of this trial unadjudicated the 17. We observe 37.071(b)(2), V.A.C.C.P. properly Article admissible would been offense

589 624, (Tex.Cr.App.1972). Accordingly, State, 628 extraneous offenses. v. Santana point of is (Tex.Cr.App.1986); error overruled. 714 10 S.W.2d Smith State, (Tex.Cr.App. 683 v. S.W.2d point error, appellant his next of 1984); v. Rumbaugh S.W.2d contends the court trial erred not declar (Tex.Cr.App.1982). engaging in Without ing testimony a mistrial because of of the authorities, an elaborate of discussion the Morgan. According Morgan, ap Avis point we overrule this of error. proximately days two after the instant of fense he the of Accordingly, judgment was at home the of co-defendant the trial appellant James Manuel. The was also court affirmed. is sitting reading newspa there on bed

per. Being aware of their commission BERCHELMANN, J., concurs. offense, Morgan testified that he told McCORMICK, Judge, Presiding them, they wrong “that were they for what concurring. appellant lodged did.” The a hearsay ob jection, by which was sustained the trial I Since am not convinced that the admis- court an instruction to the jury demonstrating sion of evidence extraneous disregard. Appellant’s motion for mistrial erroneous, offenses was I therefore concur going was overruled. Without into judgment of the Court. error, of appellant’s objection, merits if any, in the any improper admission of testi CLINTON, Judge, dissenting. mony Morgan Avis was cured My writing separately is to in- address prompt trial court’s sustaining action in 81(b)(2), tendment of Tex.R.App.Pro. Rule objection instructing to dis leading to examine mixed notions the ma- regard. Thompson v. jority decidendi, Maj. to its rationes see (Tex.Cr.App.1981). Further, this is 584-588, against analysis germane an instance where could said be decisions, and then come ato rational con- clearly evidence was calculated to inflame in the premises. clusion the minds of the and thus be incurable 81(b)(2) Tex.R.App.Pro. provides: by the court’s curative instruction. Thompson, id,., error, any, at 928. The appellate “If record a criminal was therefore cured court sus proceedings case reveals error be- taining objection properly and in in low, appellate court shall reverse the structing jury. point This error judgment review, under UNLESS overruled. determines reasonable doubt the errors made At punishment phase appel no contribution to the conviction or trial, lant’s the State offered punishment.” of two witnesses who were victims aggravated robbery committed language Our formulation the “un- July 81(b)(2) 1978. As his last Rule less clause” of was taken error, point practically asserts that it was from in Fahy verbatim Connecticut, allow the introduction of such 375 U.S. 84 S.Ct. unadjudicated (1963), offenses. Such Supreme contention L.Ed.2d 171 as the totally 37.071(a), without merit. Article first isolated then iterated it in fashion- V.A.C.C.P., provides ing Chapman “evidence the rule in California, presented 18, 824, as to matter that the court 386 U.S. 87 S.Ct. 17 L.Ed.2d 705 to during (1967), deems relevant sentence” for determining “a when federal punishment phase of capital murder trial. can constitutional error be held harmless.” Id., 24-26, S.Ct., 828-829, On numerous occasions this Court has held at 87 at 17 L.Ed.2d, unadjudicated that this includes evidence of at 710-711.2 little, emphasis throughout any, 1. All here and is mine 2. There "... is difference between Fahy our statement in v. unless otherwise noted. Connecticut about possibility ‘whether there is reasonable that 590 emphasized

To be at the outset are that federal standard of what constitutes harm- error,” 81(b)(2) assay- is to identifying our Rule not restricted less and without a stan- error,” ing dard, is it Supreme preliminarily “federal constitutional nor Court stat- inclusive; of all trial level some “errors” finding at ed its ultimate and summarized its methodology, viz: require will rever- commission or omission speculative sal either because harm is too “... We find the erroneous submis- mandatory to measure or on account of unconstitutionally sion of this obtained statute, may subject while other errors petitioner’s evidence at trial was specially standard of provided to review.3 therefore, prejudicial; the error was not harmless, and the conviction must be re- course, Here, straightfor- we deal with of concerned, not are here We versed. 81(b)(2) to found application ward of Rule with whether there was evi- admitting sufficient of errors in evidence extraneous petitioner dence which the could offenses, ruling so on faults other decisions have been convicted without the evi- kind than trial errors of a kindred are complained dence question The is go of. us then helpful.4 too Let back to possibility whether there is a reasonable genesis “harmless-constitutional-er- of the complained might the evidence of rule,” namely, Fahy v. Connecticut. ror contributed to the conviction. To Fahy The concern in whether errone- to necessary it is review the this, decide ous admission of evidence of fruits of the case and the evidence ad- facts of be, illegal may seizure as the search and at duced trial.” was, er- concluded it harmless state court Id., S.Ct., 86-87, at 84 230.5 at Pretermitting question ror. California, Fahy Chapman v. begat subject su- such error “can ever be full pra. prosecutor There “took ad- normal rules of ‘harmless’ error under Code, complained might providing the evidence have contrib- Judicial that an requiring judgment regard uted to the conviction’ and the benefi- "without to technical render ciary prove beyond errors, of a constitutional error to exceptions do not affect defects or complained Id., 757, reasonable doubt the error parties.” rights at of the substantial We, did not contribute therefore, the verdict obtained. S.Ct., became 28 U.S.C. 66 at 1244. That section meaning Fahy adhere our 2111, appears also and a shorter version § hold, do, Case we we that before when now 52(a). Fed.R.Crim.Pro. federal constitutional error can be held harm- pur- inapposite. even It does not Kotteakos is less, declare the court must be able to a belief port testing Ev- constitutional error. to discuss that it was harmless a reasonable doubt." ery quoted the ma- to and statement alluded 585, 586-587, jority opinion, comes from that at Texas, 249, 108 See Satterwhite v. U.S. 486 finding Berger part control- of the decision 1792, 1797, 284, 294 S.Ct. at 100 L.Ed.2d at S.Ct., 757-766, Id., at ling. 1244-1248. 254, 66 (1988); at Vasquez Hillery, 106 v. 474 U.S. Connecticut, 617, Fahy (1986); v. None of it utilized v. 88 Sorrell S.Ct. L.Ed.2d 598 86, S.Ct., 230, State, 505, 299, the rule at 303 see 375 U.S. at 84 74 Tex.Cr.R. 169 S.W. at (1914); example Chapman con- first is denial v. kind was used in California unlikely change proper request pursuant Arti shuffle "small errors or defects" trast 35.11, V.A.C.C.P., 827, U.S., 22, e.g., 657 cle Stark v. at S.Ct. at 17 386 87 result of trial. L.Ed.2d., latter, (Tex.Cr.App.1983), er 115 S.W.2d at 709. jury charge V.A.C. ror under Article 36.19. 157, C.P., e.g., at v. Almanza statements first the underscored 5.At blush State, 752 (Tex.Cr.App.1985); odds, 171 see Rose caution seem to be at sufficiency but the 1988). 529, 537, (Tex.Cr.App.1987, S.W.2d at factor evidence is not a relevant analysis “the effect in an to determine general majority in a 4. looks for lessons upon evidence the other [forbidden] conspiracy Supreme deemed im- Court case upon at the conduct adduced trial and jus- portant of criminal "for the administration (and concomitantly influence on the its defense” courts,” namely, Kotteakos tice in the federal factfinder). Id., 87, at S.Ct. at 231. States, 750, 752, 66 S.Ct. U.S. United review, finding making admis- (1946). Thus its 90 L.Ed. 1557 illegally in this sion of the obtained question was proof,” the Given a "variance in Supreme clearly prejudicial, particular case was peti- "prejudicial" to whether the conviction was tangi- erroneously admitted S.Ct., noted that the Id., Berger v. at 1243. tioners. incriminating," that it States, ble evidence was "itself L.Ed. U.S. 55 S.Ct. United testimony incriminating of an certain (1935), bolstered is not 1314 held a similar variance had presence fatal, peace investigating officer as understanding of 269 of § on an based

591 vantage right of his under the State Consti- clear that the burden to show such was tution to comment on failure to harmless falls on “the beneficiary of that [accuseds’] testify, filling argument jury error;” his adhering meaning to “the of our beginning Case,” from to end with numerous ref- Fahy Supreme Court concluded erences to their silence and inferences of its formulation of the rule new with the therefrom;” resulting their holding 2, ante, also the set out in note at 589-590. charged jury that “it could In quickly applying holding its the Su- draw adverse petitioners’ inferences from preme content, Court believed tenor and testify.” Id., 19, S.Ct., failure to at 87 at “impressed extent of the comments 825, L.Ed.2d, 17 at 707-708. jury that from the petitioners failure of testify, purposes, to all intents of the infer- purposes For of fashioning “a harmless- ences from the facts in rule,” evidence had to be constitutional-error Supreme State;” though drawn favor of the equated, example, Court “highly impor- reasonably there was a strong “circumstan- persuasive evidence, tant and argument, evidence,” tial web of forbidden, without “the consti- though legally finds its [which] tutionally comments, honest, trial;” forbidden way into a similarity it noticed jurors fair-minded might very well have both the federal and statutory California brought in rules, not-guilty verdicts.” but that California courts had em- phasized a court’s of “overwhelming view circumstances, “Under these it is com- However, evidence.” Supreme pletely impossible Court say for us to that the expressed preference its approach for the demonstrated, beyond State has a rea- taken it “in deciding what doubt, was harmless prosecutor’s sonable com- Connecticut, error” in Fahy v. supra, viz: judge’s ments and the trial instruction question petitioners’ “The did not contribute to is whether there convic- is a rea- possibility machine-gun sonable tions. Such a repetition that the evidence com- plained might denial rights, designed of constitutional contributed to the conviction.” petitioners’ calculated to make ver- worthless, sion of the evidence can no Chapman, 22-23, S.Ct., 827, at 87 at 17 more be considered harmless than the L.Ed.2d, at 710. discussing implica- Then against introduction a defendant of a tions of Fahy Supreme pointedly coerced confession. Petitioners are enti- observed: “An error in admitting plainly tled to a trial free of unconstitutional relevant possibly evidence which influenced inferences.” cannot, under Fahy, be conceived Id., of as 23-24, S.Ct., Id., harmless.” 25-26, S.Ct., 829,17 at 87 at L.Ed.2d, at 87 at at 828, L.Ed.2d, Further, 17 at 710. it made 711.6 finding stand, acts, defendant near the crime scene and moved to take the admit the tangible possession, similar evidence in then contend those acts were not condemned making damaging "far more than statute. Ibid. Id., 88-89, it otherwise would have been.” 84 S.Ct., Moreover, Chapman 6. Fast on the heels of tangible at 231. California involving came several similar brief decisions opinion yet peace based an another officer offense, claims of erroneous admission of evidence or matching it with manifestations of the testify comment on failure to which without thereby "forging another link between the ac- additional edification either vacated or reversed charged,” prejudicial cused and the crime below, judgment California, Gilbert v. Id., 89, S.Ct., viz: being effect obvious. at 231. 263, 1951, 388 U.S. 87 S.Ct. 18 L.Ed.2d 1178 Also, precluded by accused trial court from (1967); Nelson, 523, Anderson v. 390 U.S. pursuing challenge admissibility of certain 1133, (1968); S.Ct. 20 L.Ed.2d 81 Fontaine v. admissions and a later confession made him 593, 1229, California, U.S. 88 S.Ct. following his arrest because of the state of ex- Carolina, (1968); Bumper L.Ed.2d 154 v. North time, clusionary rule at the but "he should have 543, 1788, 391 U.S. (1968); 88 S.Ct. 20 L.Ed.2d 797 had a chance to show his admissions were in- California, see also Miller v. 392 U.S. by being illegally duced confronted with the (1968) (Jus- 88 S.Ct. 20 L.Ed.2d 1332 Id., S.Ct., obtained evidence.” at 232. dissenting). tice Marshall Finally, Supreme Court considered “the cu- instructions, upon e.g., mulative effect of this evidence the con- Others dealt with Bur trial,” Texas, gett duct of the defense at in that he was 389 U.S. 88 S.Ct. 592 years Chapman by attorney;

Two after ton and was crossexamined his v. California 6, ante, followings in testify. and its collected note other two did not Thus consti- Supreme Harrington Court decided v. tutional error was violation of the Bruton 250, 1726, California, 89 23 395 U.S. S.Ct. rule.7 (1969), opinion L.Ed.2d 284 with reviewing After the evidence adduced majority says “arguably departed here concluding special and “on these facts” from its condemnation of the correct result opportunity that lack of to crossexamine for test” and looked instead “overwhelm- the two confessors constituted “harmless opinion ing guilt.” Slip evidence of at 586. Chapman,” error under the rule Justice course, writing opinion Of Justice Douglas reprised testifying code- Douglas stoutly rejected argument, fendant, attempted as had rob- victims viz: placed bery, Harrington in the store with a depart Chapman; do not from “We gun murder; at time of the his own by nor we do dilute it inference. We Harrington he statement had admitted was that, suggest reaffirm it. do We not present. nontestifying The two confessors bearing on ingredients evidence all the of placed him at scene the crime but did tendered, crime use cumula- hand; put gun their evidence evidence, tainted, though tive is ‘harm- Douglas characterized Justice less error.’ Our decision based on the S.Ct., Id., 251-254, 89 “cumulative.” at at against this record. case 1727-1729, L.Ed.2d, 23 at 286-287. Harrington was woven from circum- imagine that attempting Rather than stantial evidence.” juror might accepted single have the two 254, 1728-1729, Id., S.Ct., at 23 at 89 un- confessions and remained in doubt and L.Ed.2d, at 288. Those disclaimers invite guilt, judges “do not convinced of because examination, particularly majority since the sat,” jurors the Court took a know who Florida, 427, reads v. 405 Sckneble U.S. 92 judicious approach, more viz: 1056, (1972), S.Ct. 31 L.Ed.2d 340 and Mil- on our judgment “... Our must be based 371, Wainwright, v. 407 U.S. 92 ton S.Ct. reading of record and on what own 2174, (1972), 1 33 L.Ed.2d to a subscribe probable been the seems to us “overwhelming called exer- so evidence” confessions on the impact of the two Arsdall, cise. But read Delaware v. Van average jury. minds We admon- 673, 684, 1431, 475 at 106 at U.S. S.Ct. giving against too Chapman ished in ... 1438, 674, (1986), L.Ed.2d at 686-687 for 89 ‘overwhelming evi- emphasis much inquiry” “correct and five factors “includ- guilt, stating constitutional dence’ of analysis

ed” in harm for Davis v. Alaska affecting rights of errors substantial error. con- aggrieved party not be could Essential facts of the case are the follow- By that test we sidered to be harmless. Harrington ing: and three codefendants weight to the impute cannot reversible together attempted robbery were tried two confessions.” murder; felony of each confessions L.Ed.2d, 1728, Id., 254, S.Ct., 23 at 89 at in evidence codefendant were admitted what the Court did just 288. That is to do limiting instructions consider each confessor; the char- Fahy Chapman: examine against one confession acter, adversely Harring- quality and effect tainted codefendant testified (1967), Cupp, guilt beyond a establish reasonable 319 v. 394 L.Ed.2d Frazier 502-503, 1420, Illinois, 731, (1969). supra, Pope 107 L.Ed.2d 684 U.S. 89 S.Ct. 22 doubt. Clark, 570, S.Ct., 1922, L.Ed.2d, U.S. 106 See Rose v. 478 S.Ct. 95 at 447. also 3101, Illinois, (1986), Pope 460 92 L.Ed.2d 123, States, 391 U.S. 7. See Bruton v. United 107 S.Ct. L.Ed.2d 439 481 U.S. (1968) (denial (1987). adhering Chapman While stan S.Ct. L.Ed.2d dard, Supreme rights Clause of Sixth under Confrontation in cases of this kind through regard applicable analysis made to states to the erro Amendment conducts an without of Fourteenth Pointer v. to determine Due Process Clause neous instruction on an element Texas, precluded S.Ct. 13 L.Ed.2d consider 380 U.S. whether the from (1965)). necessarily ing the facts found that element and

593 analysis in v. (or comments) lowing other made impermissible against Sanne determine State, evidence adduced at to (Tex.Cr.App.1980), 762 might the tainted have so whether material error majority found the constitutional is a reason- influenced that there harmless, viz: probability it able contributed to convic- properly admit- “We conclude S.Ct., 230; 86-87, Fahy, tion. at 84 at ted was such that the minds evidence 23-24, 26, S.Ct., at Chapman, 87 at 828- average would have found L.Ed.2d, 829, 17 at 710-711.8 on the issue of State’s case sufficient lights, Chapman in those Fahy, Read ‘probability defendant would Harrington and v. indeed Delaware commit criminal acts of violence Arsdall, supra, refute the notion that Van continuing would constitute a threat Supreme Court ever a “trend” started society’ Grigson’s testimony Dr. even if single “overwhelming a true evi toward had not been admitted." guilt” assaying dence standard for Id., 5, 93-94, in n. at at 93. And it distin- error, majori harmless as identified guished ac- denial effective counsel on 30, 16, ty opinion at n. and at Certain 35. conflicting count interests in “The that: ly, Supreme no such discerned present case, just error in while year last trend when it came to review improper, only Grigson’s tes- related Dr. Texas, 249, v. Satterwhite 486 U.S. 108 than timony, proceeding rather as a 1792, 100 (1988), S.Ct. L.Ed.2d 284 to deter whole.” mine whether was harmless error to in psychiatric troduce in testimony obtained Supreme Court found that method- right violation of the Sixth Amendment deficient ology fatally because it addresses counsel, id., S.Ct., 254, consult with 108 at wrong question, viz: 1796, L.Ed.2d, 290, at 100 at to exam however, question, not "... The singular ine that decision of significance to legally whether the admitted evidence jurisprudence our I own now turn. support sen- was the death sufficient finding the Estelle error v. Smith tence, was, we assume it rath- but the majority harmless in v. Satterwhite er, ‘beyond proved the State has whether State, 726 S.W.2d 81 in- (Tex.Cr.App.1986), doubt that the com- reasonable analysis troduced its with the observation plained did contribute to the verdict Grigson’s testimony that “Dr. not the 24, Chapman, U.S., obtained.’ 396 at 87 only evidence offered by during the State 824, 17 S.Ct. L.Ed.2d 705.” [at 828] trial,” punishment phase id, at Id., 258, S.Ct., 1798, L.Ed.2d, at at 108 100 proceeded then 93. It to summarize all at 295. testimony presented by pun- the State of Fahy, Reminiscent Justice O’Connor offense; ishment and to editorialize the id., presented, recounted 258- evidence at testimony Grigson alluded of Dr. 259, S.Ct., 1798-1799, L.Ed.2d, at 108 100 noting testimony of psychologist 295-296, impact at and examined “the “very similar” to his “conclusions about Grigson] Dr. upon appellant;” the State bolstered his tes- [from timony argument Fahy, other adduced.” U.S. was not mentioned. 375 S.Ct., Ibid.; dissenting opinion, cf. Fol- at 231.9 at 95-96. at 84 Florida, "(u]nder Harrington, precedent supra, 8. Schneble like is a mark constitutional ” violation, S.Ct., 430-432, finding Id., guise and at at ‘harmless Bruton error.’ at 1059-1060, S.Ct., L.Ed.2d, (Chief) majority at Justice at closely previously Rehnquist analysis tracks the Douglas Harrington. agreed Justice made Three Court had that "the Sixth 9. Earlier the following Harrington, requirement later and also notice Es- months Amendment set out in id., met[,]” Wainwright, Burg- supra, Chief Justice telle v. Milton Smith L.Ed.2d, er, S.Ct., 292-293; obviously by yet distressed collateral Justice another conviction, year gave directly on a noted attack fourteen old Marshall effects such violation defense," "upon the such short shrift that Justice Stewart and could have conduct of the Milton ibid, allowing protested turning Fahy, the back of was convinced that three others "may Supreme forty year Court on a old land- never be considered harmless body “constitutionally appel- As into an with the forbidden identifiable narrow Chapman, law, comments” recently updated late most in Satter- “impute weight to the two con- reversible certainly They white. are much more de- pointing after out Harrington, fessions” protective against finitive and inadmissible finding dangerousness that “the of future grasped by the tenet evidence than basic sentence,” critical to the death and was 587, sug- majority at “considerations” Grigson only psychiatrist that “Dr. was the 587-588, gested at and whether the State issue, testify prosecution on this and the process,” “to the trial at 588. tried taint placed significant weight powerful on his methodology Adapting to resolve settled testimony,” con- unequivocal and the Court formulation, 81(b)(2) Rule the ultimate our cluded: inquiry simply impossi- Is may be stated: it Having “... reviewed evidence a say beyond ble to reasonable doubt case, impossible say we find it offenses did not influence extraneous Grig- beyond Dr. a reasonable doubt that adversely to on issue jury expert testimony son’s on issue of and punishment? of Satterwhite dangerousness Satterwhite’s future did Chapman. sentencing jury" not influence S.Ct., 1799, L.Ed., Id., 260, at at 100 at influenced a Evidence that have 296. Every surely its verdict. contributes to proceedings Where there is error in be piece sheaf evidence submitted and low, Tex.R.App.Pro. the intendment jury may give consideration for whatever 81(b)(2)is to unless Rule mandate reversal it, limiting instruc- restricted unless “beyond can it be held a reasonable doubt Therefore, step sepa- our first is to tion. to the that the error made no contribution evidence erro- and on one side rate collect punishment.” In con conviction or (“tainted”), and on neously admitted evidence, admitting text as in remaining presented by evidence other that cause, beneficiary is re instant step is to exam- prosecution. Our next prove quired beyond “to reasonable “taint- quality ine the character and complained doubt that the error of did not other, to the not relates ed” evidence Chap contribute to verdict obtained.” its effect on the for relative volume but L.Ed.2d, man, S.Ct., 828, 17 at at at to its We also look “untainted” evidence.10 And error can be held 711. before that and to of the defense effect conduct harmless, appellate court “must be able done, ramifications. That other adverse a belief that it was harmless to declare intelligent judgment then make “an we beyond a reasonable doubt.” Ibid. admission the erroneous about whether Germane decisions reviewed ante not have affected might [“tainted” evidence] the rules but also demon- lay down jury.” Satterwhite average rational] [an methodology analyzing strate facts S.Ct. at Texas, at 486 U.S. supra, of, in, given adduced case in evidence Compare Van at 295. 100 L.Ed.2d order determine a reasonable Arsdall, supra. admitting error in evidence doubt that an concern ultimate In the cause our instant comment) (or allowing prosecutorial made of two extrane- is with “tainted” evidence no contribution the conviction or That kind ous offenses. re- punishment. Fahy, Since formulated to confuse prejudicial, tends “inherently Chapman per- explicated in stated and case, the ac- and forces in the issues repet- petuated followed Harrington, against charges himself applica- cused defend precedential itive construction tion, developed not notified would methodology which he had been rules and 263-264, error,” Satterwhite, S.Ct., verdict, may have some inherent at nevertheless 1801-1802, L.Ed.2d, testimony example, an im- 299-300. from weakness—for accomplice in fairness munized or witness—that examination, conducting while we can into consideration. should be taken is sufficient to sustain the assume that latter accomplice id., her as an brought against him.” Albrecht status issue at was a central trial.11 (Tex.Cr.App.1972). at 100 witness objections appellant, from Over related theory prosecution Essentially the apparent- admitted trial court respon- criminally was that ly theory they gestae” are on a “res conspirator that Rencher was sible as offense, primary and thus the accomplice, but believed give any court did restrictive instruc- cor- she then her had been limiting tion consideration them another Thus issue roborated.12 jury- testimony describing raised. Let us review and attendant the two extraneous offenses Furthermore, principal prosecution juxtaposition in with related circumstances Rencher, year witness was Valerie fifteen evidence, principally testimony from Rench- Harris, girlfriend old of Curtis er, argument linking cir- prosecution and brother, testimony whose and were attitude offenses to cumstances the extraneous by scrutinized v. Harris appellant. State, (Tex.Cr.App.1983). 645 S.W.2d 447 testimony There examined in detail the we As to extraneous offense first evidence, including “a of Rencher and other time, Sally Looper that Decem- testified on exchange ‘deal’ with the State that in for 11, 1978, seven in the ber around o’clock testimony her would recommend State Manuel, evening, she watched James nick- year she receive no more than a ten sen- “Dirty Red,” as named who she knew adult,” tence if an find she were tried as to schoolmate, together former with a black failing that “the trial court erred in to man, she did know or otherwise who jury question submit to of whether car, identify, walk in front of her cross a Id., accomplice Rencher was an witness.” street, store, get approach a convenience Substantially at 454-458. testi- same belonging neighbor to a a Ford Torino male evidence, mony including documentary and telephone who was then inside a hers “deal,” formalization that were intro- booth; already the motor of the Torino was jury duced to the in the cause. instant contacting “they running, and without him Accordingly, gave jury the trial court car.” just off in the She identified took determining for usual instructions photograph Exhibit 20 State’s as accomplice whether Rencher wit- “yellow orange Looper reported was car.” and, so, considering ness her testimo- police incident to the received a five ny. virtually her testimony Since “formed dollar reward for her informa- hundred against appellant,” entire State’s case tion.13 State, “Testimony accomplice supra, at 11. of an is un- 455. Intendment or witness Harris trustworthy precise meaning and should be received and viewed of that latter remark was the (77 during subject speculation with caution." Eckert v. 623 S.W.2d S.F. 175- (1981). 177) (Rencher at "Because such witness is usual- at did not know what that meant ly always corrupt, testimony any give deemed to be his didn’t indication that he the time—"he upon suspicion." Holladay looked with his brother to hurt that man” that she wanted (Tex.Cr.App.1986). "only guessing was that [she knows] knew—and now”), (82 argument meant and in what that conspir- pivotal question raised a Rencher 93), being interpreted S.F. and is still in briefs acy attacked, testimony before was her that the victim parties. whisper she heard to “getting after the Rencher That first lick man,’ brother, going ‘“We’re drive this to (76 103) get ready when to ... in the truck” S.F. (76 98). something put to that S.F. effect.” She Curtis Harris not to hit the victim she told larger context in a viz: suggests that took the in a more she remark "Appellant mean, came be- and Manuel out from go- familiar to her "We’re vernacular approached truck], car and Rencher hind the ing [pickup drive this man.” Manuel, Harris, appellant in the lead. Curtis door, ap- appel- evening of December stopping near the said to 13.On the car’s left 'Man, lant, p.m., appellant place.’ Ap- proximately my 7:00 Manuel arm is still out of "gold” Ford up at the Harris residence in a pellant walked Harris and Rench- arrived to Curtis Among being appellant. standing oth- two driven Rencher between the Torino er. With Rencher; testifying an al- going present as whispered, “We’re ers of them witness, accomplice (sic).” leged she identified the this man.' drive remarks, preliminary photograph from After felicitous identified Manuel attorney assistant district told the carrying shotgun appeared to be “just briefly go key he over a few would photograph in a the same shown pieces I ask the evidence and deceased, shotgun belonging to and anoth- things[.] keep mind these me [L]et er male she testified she “believed” to be I touch on some of what consider to be appellant. approached Two of them began immedi- elements of this case.” He counter, one checkout stood across the Sally Looper, ately with the counter, moved behind the another counter ante, including, viz: her; appellant next remained There male with “... was another black They front door. left a few minutes.15 Dirty Red she doesn’t who know attorney First assistant district recalled was, get good she look didn’t at him.... King “put Manuel in that U-To- you very But I is a James submit piece Sally tem, critical of evidence because two males. And other black Red, Looper puts Dirty James Manuel points to this defendant in courtroom that Torino.” Ford like him.” says and that looks Rhetorical- “key pieces of ly, That and other evidence” he added: identified, he argued, were corroborative in I don’t think there doubt “... particular some related in Rencher’s testi- your males mind that those three black closing argument In mony. for the State Harris, together night. Curtis were that attorney rejected the the district notion ad- Danny Harris and James Manuel.” Loop- appellant for that vanced counsel argument response to the of counsel got lying er she hundred was because five appellant King said “she could that dollars, emphasizing her clear identification there, being in Danny Harris as identify “Dirty Red” Manuel.14 James say got wanting you to we’ve they’re but Concerning the extraneous of- second says Danny Harris was that woman fense, King Barbara Gilmore testified that there,” King attorney conceded the district working she was alone at a U-Totem store said, sure, positive can’t be ... “I can’t be in in three black men came “a Waller when one, eyes the are the I think he’s night after o’clock” on the [b]ut little eleven 1978; court, in that effect. It was James one male she same. Words to December they pictured already preparing told the that were Torino as the vehicle in State’s Ford primary the offense in the 20. Rencher recounted the illfated to leave the scene of Exhibit Manuel, acquired the odyssey appellant, pickup, had wallet James Curtis Harris GMC Manuel said, Torino, got pickup began he then in the Ford moved and when he in the and she deceased Road, [sic, "kids”], killing Sandy keys probably but had "[T]his Point continued man away pickup appellant driving of deceased to Waller and back was the GMC he’s While broke.” Bryan money;” it ended for her and Curtis some where declared that “we needed Manuel gun at the See Harris v. Harris Harris house. case from which on the floorboard was 454-456, "comprehensive they rec- supra, shotgun. factual at removed a After went Manuel adopted opinion by majority in its appellant itation” Curtis where and Harris house clothes, changed quartet 572. to- headed Harris Along Navasota Manuel ward Houston. about Bobby County Yeager Sheriff investi- Brazos other license of deceased and tossed out drivers gated primary offense and the scene in- they got Waller recovered. When items later appellant damaged spected Ford To- "mustard colored pickup a block off drove the about portrayed Exhibit 20. rino" in State's up highway store; pulled the convenience and behind they running, leaving left the motor Looper say 14. the facts that could Given shotgun pickup entered the store. with the and got male Manuel or the black behind they pick- five minutes returned about away, the Ford Torino and the wheel and drove highway, up, turned appellant drove shortly thereafter at the when arrived Bryan away speeds fled toward driving, residence was Harris “maybe ninety" per hour. miles reasonably infer that was the could actually acquired party and exercised con- who appel- Bryan, near the Harris house Back over the Torino. trol stopped pickup some woods lant they throwing “they away a lot of started stuff money.” testimony they split up Although got had Rencher excluded the trial court robbed, unspecified amount. Looper Rencher had received that she Manuel who she was sure of and there appellate the defendant’s trial. “If the there, a third male you black down but record a criminal case error in reveals below, say proceedings appellate didn’t hear her there was a fe- court black no, judgment shall reverse the just male in there under review.” ... those three.” (My emphasis.) 81(b)(2), However, Ap- Rule Rules of he added: pellate only exception Procedure. The you “... Valerie stayed told she out in harshly this rather appellate written rule of truck, they while left that truck with procedure provides beneficiary shotgun, they parked behind the U- error, can convince the there, Totem down about eleven o’clock a reasonable doubt night, says they Barbara Gilmore that the error made no contribution to the were there about eleven fifteen to punishment conviction or to the that was thirty. eleven About the same time.” assessed, then the cause should not be re- Manifestly prosecution highly valued versed because of the error that com- the two extraneous offenses and circum- Simply mitted. because the State cannot surrounding stances them: the facts that individuals, use the the Ford Torino had by “Dirty been stolen jury, the members of the who can furnish Red” appellant early Manuel and in the question, answer to whether be- and, evening deceased, after killing the yond a reasonable doubt the error made no they and Curtis ranged Harris as far contribution to their pun- verdict of aggravated robbery Waller to commit ishment, logically at least the State is des- King Bryan night. and return to later that every single tined to lose in case The attending facts the first extraneous “Chapman non-federal type v. California” offense were “incriminating,” themselves constitutional law error or state error in thereby “forging another link between the charge is found appellate to exist an accused and the charged.” offense court of very this State. This is a harsh forged second one as well connecting more rule, but it is the rule that this Court itself Fahy, supra, links. at n. ante. approved. has Until the rule is modified or changed, it is the rule that should be in- We cannot determine general from the applied voked and “Chap- to all non-federal verdict whether jury believed and man v. type California” constitutional law found Rencher to accomplice, be an but errors, trial and state in the errors court’s having cause, reviewed the in this charge. governs This rule any type of my judgment in impossible it is say to proceedings error that occurs “in the be- beyond a reasonable doubt that evidence of exception low.” One court made to this two extraneous bracketing pri- offenses rule concerns state in the court’s mary offense did jury not influence the in charge, which kind of error is controlled finding a guilty making verdict of and in this Court’s decision of Almanza v. issues, special par- affirmative answers to 157 (Tex.Cr.App.1985). S.W.2d ticularly majority opines number two. The 50(e), Procedure, Appellate Rule Rules of “probable impact” at 38 that jury on the governs comply the effect of a failure to erroneously admitted evidence “mini- was timely request with a mal,” from the defendant but if it served to “influence” the timely for a statement of facts. aWhere jury, those errors cannot be harmless. request made, has been and the court re- Accordingly, judg- I would reverse the porter has lost his or her notes without ment and remand the cause to the trial defendant, on part fault of the Therefore, respectfully court. I dissent. “appellant is entitled to a new trial unless parties agree on a statement of facts.” TEAGUE, Judge, dissenting. rule, wording Given the of the which also respectfully dissenting opinion. I file this harshly appellate another written rule of This Court itself has formulated a rule procedure, I am confident that there is not that dictates attorney when court must a criminal defense in this State finding during agree proposed reverse after error occurred who would ever to a state- facts, 50(e), ment Appel- no matter how accurate C.P. Rule see Rules of Now might Thus, post. given same be. also See late Procedure. this Court’s past interpretation 40.09(7), of former Art. instance, especially In this I to dissent Y.A.C.C.P., opinion’s majority reliance that, majority opinion’s holding not- statute, on that to hold that the act of the withstanding appeal that the record on judge cause, creating, trial not an incomplete, appellant cause is copy transcription, exact but tran- entitled to a new trial under this Court’s scription of what he from remembered decision Dunn v. S.W.2d hearing, nothing amounted to less than (Tex.Cr.App.1987),which held that once substituting transcription for the tran- timely he shows that had scription original notes that do not properly requested reporter the court to now exist. trial, thereof, any part take notes of insignificant no matter how It is held the notes true that this Court in Fine if, might resolving on appeal, permissible be issues that it for the trial court to his, through reporter no fault of hearing just exactly the court hold a on what the notes, i.e., instructed, fails he to transcribe the is entitled what especially actually I charge stated, new trial. also dissent to court’s opinion’s majority holding that al- judge and that the trial could resolve though judge guilt stage testimony. the trial at the A newly conflicts “cre- in admitting copy charge the trial erred into ated” the trial objection testimony judge given over that related to had then included in the offenses, appeal. rejected two extraneous under Rule record on This Court 81(b)(2), appel- such error was that it harmless defendant’s contention was neces- sary charge lant. for the substituted charge, language exact of the lost majority As the missing transcript, requires held: think the law no more “We opinion attempts distinguish Dunn substantially charge than that the be following basis: “In the cases cited lost.” same as the instruction shown be id., Dunn, missing portions However, my (My emphasis.) research to were either the entire of record statement single date has not revealed a case this facts, argument, the final or an essential holding that reaffirmed its Court has bar, portion of In case the trial. Thus, Fine, strictly limited, if not Fine. portion missing transcrip- of the record is a in our appears to be an aberration law. hearing pretrial tion the notes of a is applicable Assuming, however, “good” are not essential or even to a that Fine law, charge, appeal.” (Page this 575 of as to resolution of reconstruction opinion’s majority opinion.) majority opinion support majority it will not attempts distinguish holding permitted to judge also Dunn on the that a trial is judge occurring, he remembers basis that “tran- transcribe what because copy occurring he remembered and then substitute same as scribed” what supplemental transcript reporter’s notes. this in- hearing, his court lost stance, agree to appellant did not the trial cured omission. opin- majority If judge’s transcription. State, exception, one Fine With not, holding logical, ion’s which it single (Tex.Cr.App.1934),every S.W.2d dispense report- then we could with court majority opinion cites and case that of facts and transcribing ers statements support its second conclusion discusses to judges to our trial just turn that task over any- to almost easily make it clear should put form let in statement of facts them the situation one that those cases involved occurring in they whatever remembered approved this the substitution where Court, how- proceedings below. This document, original court such as an of an ever, holding. approved such a has never indictment, information or an ex- fact, held in Authority implicit this Court what copy act that document. 44.11, 732-734 Bradley former Art. V.A.C. doing this was (Tex.Cr.App.1978), holding is the reporters court who exist within that timely requested who has a state- group. exception We should not create an agree ment of agreed facts will not to an good negligent just to a rule so a few court facts, statement reporter’s and the court reporters negli- excused for will be their lost, have been forever punishment stage of the trial. Those not cause or justify this in Court this cause jury. individuals are the of members exception to create an to the rule laid down I agree Because am unable to that either in Dunn. majority opinion State or this Court’s Although provides Dunn a rather harsh has established a reasonable doubt remedy negligent for the act of a court that the errors made no contribution to the reporter, by notes, losing his or her I be- jury’s guilt cause, verdict of or that lieve that creating exception an same jury’s did not contribute to the an Dunn, does, as the majority opinion we swering special the submitted issues in the punish reward rather than negligent affirmative, my vote is to reverse this con reporter act of the court that occurred in point viction on this as well as the above will, course, this cause. I of continue to point. Also see the cases collated in Vol. that, have faith exceptions, with few court Digest, Texas under Criminal Criminal reporters report of this State who criminal 1169.11, Key No. dissenting Law and the cases perform will continue to in accord- opinions State, that I filed in Black v. high very ance with the standards of that (Tex.Cr.App.1986), S.W.2d 674 and Beath necessary profession. and noble I believe (Tex.Cr.App. ard v. 767 S.W.2d 423 that this a Court does disservice to those 1989). hardworking and conscientious court re- porters opinion’s do not majority contrary who lose their notes To the hold- excusing negligent ings, acts compelled of those few I am to dissent. performing OPINION APPEL- a analysis

DISSENTING ON harmless error LANT’S MOTION FOR REHEARING consequently the easiest and the most con- approach employ venient one could is to CLINTON, Judge. determine whether the correct result was has Now that reexamined the despite error.16 achieved notwith- Or/ genesis of and tracked antecedents Rule error, standing light all the admis- 81(b)(2) in Arnold et al. v. evidence was the fact finder’s deter- sible (Tex.Cr.App.1990), S.W.2d 872 and denied guilt clearly mination correct? Stated rehearing causes, I motions for those way, “overwhelming is another there evi- grant rehearing would here to reconsider dence” that was not tarnished our initial effort “to articulate a coherent determining standard for an is This approach when error the error? is incorrect be- 81(b)(2),opinion, harmless” under Rule language cause rule focuses conceptual to the end that nuances remaining upon and not the error evi- may be reconciled for benefit of the bench dence, weigh only and to review and “un- not, majority and bar. Because the does I tainted” evidence makes respectfully dissent. factfinder, effectively substituting it- first, My parts: is in a dissent two mod- of fact. self the trier portion opinion ified version of passage from a The rule is derived along the Court lines of basic its views Connecticut, 85, 84 Fahy v. U.S. S.Ct. going with the flow of its “formula- (1963). Reviewing 11 L.Ed.2d 171 revising editing tion” but format and con- of harmless state’s determination error tent, page last paragraph from the gathered illegal in an admit evidence 588; second, page appli- to first one on seizure, finding that “the search and first. cation erroneous submission of this unconstitu- I tionally preju- obtained evidence ... 81(b)(2) Although therefore, Rule has been cited the error was not dicial [and] times, many yet we have to articulate harmless,” Supreme Court outlined the determining coherent standard for when an approach. correct problem is is harmless. The here whether We are not concerned conelusory terms expressed rule on which there was sufficient evidence subjective to admit may be read concerns petitioner have been convicted could objective than which must rather standards complained of. The the evidence without explored legally to reach a correct reso- question is there is reasonable regard empha- In this it must be lution. complained that the evidence possibility sized that the function of harmless error might have contributed to convic- analysis appel- is not to determine how an question, To neces- tion. decide this facts, judge late would have decided case facts of the sary to review to determine whether an error contrib- but punishment. at trial. uted to the conviction or the evidence adduced the appel- purpose The rule dictates 88, Id., 231.17 at at 84 S.Ct. responsibility deciding late transcends noted, 81(b)(2)mandates that the As Rule the conviction was correct. See whether 15, upon the error and supra appellate n. at 35-36. court focus Traynor, construing commonly error statute" in referred to as the “over- federal “harmless This is 16. conspiracy general case. whelming one evidence" test. Under test evidence, appellate but not to the tainted to the federal “does look The statute commanded evidence, “give to criminal cases asks it alone courts in both civil and untainted whether Field, "Assessing judgment entire guilty." after examination compels a verdict of errors, regard to technical record ... without Er- Harmfulness Federal Constitutional Rationale," exceptions not affect the defects or which do 125 in Need of ror—A Process Id., 757, rights parties." at 66 of the substantial (1976). Univ. Penn.L.R. 15 history Noting legislative at S.Ct. 1244. errors,” analysis Fahy only of a but “its The is reminiscent detailed if 17. "affects technical statute States, litigant’s prejudice a substan- exposition 328 to in Kotteakos United natural effect is 750, 1239, (1946), sustaining rights, a verdict burden of S.Ct. 90 L.Ed. 1557 tial U.S. 66

601 words, tion determine it contributed of the error. other punishment. or the Irrespective conviction impact of be properly the error cannot eval- inquiry, impossible of the focus of the it is examining uated without its interaction gauge significance apart to of the error with the other evidence.18 the remaining properly from admitted evi- Kotteakos Those in lessons are approach obviously implicates dence. This Fahy, and Chapman retaught them, also evidence, a review but the concern is rejecting “overwhelming evidence” stan- solely to impact trace the of the error. The Chapman California, 23, dard. at 87 weighed untainted evidence is not to be in Harrington v. Cali- S.Ct. at 827. Yet in right, its own nor is it to be examined to fornia, 250, U.S. S.Ct. see it with the cumulative tainted (1967), L.Ed.2d evidence; arguably Supreme is to be considered potentially damaging uncover the departed ramifica- their teachings from when Id., historic securities thrown around relaxation of S.Ct. causes. will judgments relation causes almost Appellate judges the outcome. To against judges and also with circumstance. What sions. But function to determine form. criteria for reversal tations omitted ulate according more are material factors in balance done in similar relation of the rigid from examination of the what Necessarily tion must be influenced entirety, tempered may be technical for one is substantial for Judgment, setting crucial in another. the discrimination it or ment because it is another; has citizen But this does not Some aids to at Supreme In the final matter of Easier was the ... rest light precise been 761-762, sense of stare decisis what has been upon probable can along safely transcending ^[******] that to Thus, the entire to the of a at stake charged what minor and escape altogether taking to how the upon work in a vacuum. always are rule, Court observed: decision outcome is they may general; with making judgments congressional 66 S.Ct. analysis judgment play verdict or exclusively throughout]. Supreme situations, right the one negative character is not the cannot upon [citation omitted]. command to observe. setting intelligence, but not weigh confinement mean judgment reconviction and decide requires but in speculation asserted impression at crime,” id., judgment. its who the case as a escape conviction. This is conviction Court found proceedings judgment than affirmance. Those the record without unimportant for the the error’s effect outcome, [citation omitted]. "fear of too make them sole governed part appellate claims under Nor is it to innocence, is one of in affirmative This, make than it such in each case also because In varies with in criminal proceeding, by and convic- comes out. casting jury.... account of would be be stated resulting criminal and the formula impres- * * * * in their help in court’s whole, in one judg- spec- easy part [ci- it,” 18. It is have been Id., whereas if there is no when it has the effect of tial and even-handed manner and not "in the harmless error of an error an 769 S.W.2d 234 the evidence in cause, light Id., examine the entire record entire Virginia, jury, even tial doubt, the where the when the sense of the record. norm or a pened. ally is sure that important The crucial alone, on one’s others meant to be taken to have had ror or its effect done what effect the error had or guilt laymen. right different, at (1979), If, This must most phase influence. 319, by record. Unlike enough inquiry judgment 763-765, when all is said and important so, or had but in wrong in their might 443 U.S. but And one must acting whether the error itself had substan- law, 99 S.Ct. at 2789. example, harmless, own, favorable them, And the or affected difference, specific departure conviction own, resolving thing cannot analysis the error may on the react and take account (Tex.Cr.App.1989). established judgment, 66 S.Ct. at 1247-48. relation support If in the total should without upon very but so, be, note is the question command of guilt manner is at minds 99 S.Ct. singled to the with defense or the issue of harmfulness upon is from a constitutional from slight the verdict. It is rather the error. but one cannot error can be judge disparaging that in the not be stand, least in that did not merely court is dictates of Jackson v. if one is left in to all else reason. comes other evidence is the regardless done, impact by allowance for how See guilt result, of other setting. effect, is, out and prosecution....” others’ reactions the error could reasonably regarded gener- neutral, impar- stand. except perhaps what the error Butler v. jury's easy whether there the conviction not were strongly necessary influence the Congress.... in fact. judgment obligated A review of It is context of a This is the apart 61 L.Ed.2d the verdict of the er- men, decision. harmful defense, standing respect. rather, ignore grave from from thing may hap- they It is not be- to 602 case, that, strength” prosecution’s re- apart

it from evi- all of and found “cumulative erroneously to dence” admitted confes- manded cause state court make a sions, against Harrington so “the case harmless error determination the first overwhelming of that violation Bruton Contemporaneously, in instance. Rose v. harmless a reasonable doubt.” Clark, 570, 3101, 478 92 U.S. 106 S.Ct. Id., 254, However, at at 1728. 89 S.Ct. (1986), 460 that L.Ed.2d Court decided Douglas, speaking through Justice subject is to a error harmless Sandstrom made that on Court clear its decision was analysis an instruction error and errone- facts,” id., 253, special 89 at “these at S.Ct. ously shifting the on in- burden malicious 1728; Chapman could that the test harmless,' may tent not on account of “impute weight to the two reversible “overwhelming evidence” but because confessions,” id., 254, 1728; 89 S.Ct. at charge required still to find exist- depart Chapman; do not from that “[w]e facts; of those ence likewise remanded it,” ibid.; it. We nor do we dilute reaffirm make determination. the state court to that bearing suggest it did not “if evidence Illinois, 497,107 Pope v. 481 S.Ct. See U.S. tendered, ingredients of the crime is all 1918, (1988), adhering 439 95 L.Ed.2d evidence, though the use cumulative applying it to erroneous Chapman test and tainted, harmless,” ibid., is that its decision on an element of offense instruction “is on the evidence in this record based ascertaining precluded jury was overwhelming is so that unless we [which] considering that element and facts from say no of Bruton can consti- violation guilt beyond jury must found show have must be tute harmless error conviction [the doubt; see reasonable also Carella v. Cali- affirmed]," ibid. U.S.-, 2419, 105 fornia, 491 109 S.Ct. 427, Florida, 92 405 U.S. (Justice Schneble v. (1989) 218 Scalia dissent- L.Ed.2d 1056, (1972), the ma- L.Ed.2d 340 (mode depend upon S.Ct. analysis may ing) jority read all that to mean that where error, e.g., certain instruc- nature guilt over- properly admitted evidence is tions, over- even when evidence of is whelming prejudicial effect of code- 2421-2422). id., whelming, 109 S.Ct. at insignificant by is fendants’ statements extending Thus in the course of harmless, id., comparison, Bruton error is to more more Chapman standard 1059, 344, 430, 31 L.Ed.2d at 92 S.Ct. at errors, Supreme kinds of constitutional analysis following it found insuf- such applied like a finding it cannot be Court evi- prejudicial ficient effect inadmissible considerations bright line rule. Relevant light dence of codefendant defen- problem, and “over- vary problem from confession; Douglas, in- dant’s own Justice yet resolve one whelming evidence” among terestingly enough, the dissen- solving another. bearing on no have 371, Wainwright, 407 U.S. ters. Milton v. read Douglas himself Harrington, Justice 2174, (1972), 33 L.Ed.2d involved S.Ct. giving too “against Chapman admonish violation of the Sixth Amendment claimed ‘overwhelming evidence’ emphasis much pretend- Massiah in that an officer under 1728, U.S., 254, 89 S.Ct. at guilt,” 395 to cer- ing to be fellow inmate testified ignored practically other cases made de- incriminating statements tain circumstance. fendant; the error majority found Texas, 486 U.S. v. In Satterwhite himself had harmless because defendant (1988), L.Ed.2d 108 S.Ct. to other offi- full confessions made three agreed this Court Supreme Court with however, Douglas cers; again, Justice 454,101 Smith, 451 S.Ct. U.S. an Estelle recently, in joined More Dela- dissenters. (1981), subject 68 L.Ed.2d 359 Arsdall, 475 U.S. ware Van However, in harmless error rule. (1986), the Su- 89 L.Ed.2d 674 S.Ct. Su- of death the reversing the sentence rule to denial of preme extended the disagreed the conclusion preme Court right to crossexamine Amendment Sixth Grigson Dr. testimony by bias, that tainted included prosecution about witness a doubt. reasonable “over- harmless to be considered among five factors citing any dealing appellate case An not determine Without with harm- court must error, simply by error exam- except Chapman harmfulness of an California, less “overwhelming ining whether there exists supra, Supreme Court the noted substantial finding guilt. a of support evidence” to support penalty evidence to the death but has impropriety The of this standard been on of impact focused the and explained: on possible jury. its effect the Without finding a that makes a of harmless- undertaking to determine whether evidence overwhelming under “overwhelming,” ness the the Court stated: finding is not that test the ... did [error] however, question, is not whether in not fact affect verdict. legally admitted evidence was suffi- sentence, support to cient death was, rather, simply we assume it The court’s affirmance indi-

which but opinion cates its that the untainted evi- proved ‘beyond the State has overwhelming jury dence so that that reasonable doubt the error com- alone, compelled rely had been to on it plained of did not contribute to the ver- holding, would have convicted. In so Chapman, U.S., dict obtained.’ at passing upon jury court is not what the S.Ct., at 828. did; it is determining propriety not Id., 108 S.Ct. at 1798. jury evidence on relied. perceived Any difficulty reconciling in ruling upon Because it is instead what cases applying various the harmless error do if rely would forced to Chapman rule from to Van Arsdall and evidence, substituting different it is itself Illinois, Pope supra, all is not occasioned for the as factfinder. by changing review, standard of but from Field, “Assessing Harmfulness of Fed- recognize failure that the manner of eral Constitutional Error—A Process making analysis of the facts of the Rationale,” Need aof 125 Univ. Penn. case—not of vary the offense—will accord- (1976). L.R. ing question.19 to the error in Rather, court should calcu- Thus the most guide this Court can do to probable impact late best as it can of the prospective analyses error pro- harmless evidence; jurors light error on of other requisites vide a formulation under Rule “overwhelming ormay may evidence” not 81(b)(2), present general considerations role, play depending particular on the relevant, may judges be and trust error and the and facts case use assaying these observations what predominant adduced. The concern must the error meant to other men and impact. women be likely the error and its When reacting with reason. the court rules error is harmless suggest difficulty [jurors] 19. To question right such follows ... And is not were judgment regardless changes personnel their error or its “from in the Court's and the upon verdict. effect It is rather what emphasis justices relative that individual reasonably may had or effect placed on relevant considerations of the extent upon jury’s taken have had decision. harm are natural reflection of an [that] thing impact thing The crucial is the inherently subjective process” is to misread the men, wrong on minds other done not Kotteakos, Court, process. to confuse own, setting, on one’s in the total [citations supra, at 66 S.Ct. Court did omitted]. proper introduce its discussion exercise of must This take account of what the error judicial judgment with observations that "the them, singled standing and meant out play impression along with conviction alone, hap- but in relation to all else that intelligence, judges with also varies with pened. judge And must one others’ reactions that] circumstance be techni- [and [w]hat own, by his but allowance for how another; one cal for is substantial with what might regarded gener- others ally react not be unimportant setting minor and in one crucial in acting This without reason. is the However, the another." Court went on to devel- difference, easy ignore important but one op process, considerations involved in strongly when the sense of comes from ultimately reject notion it is "inher- the record. Id., ently subjective," 66 S.Ct. viz: sufficient, of the error it must be for evidence to be it has found the nature essence “overwhelming evi- not have affected does not constitute is such that it could record, on in the jurors, so the must have relied dence.” Even discernible attempting properly considered was not to taint other evidence. When that “the State “passing overwhelming dissipates process” made evidence so jurors nothing react- im- probable says on minds reference” to them about impact reason, ing felony on pact the error did contrib- of two extraneous offenses it “minimal” guilt, jurors. ute the verdict of harmless. minds of That was to Otherwise, enough jury. it is not. still to influence the summary, harmless error applying the grant Accordingly, appellant's I would rule, reviewing should not focus on rehearing. motion Instead, an propriety of outcome of trial. be concerned with court should thing wrong, impact of the done to deter- might

mine the error have affect- whether jury. Accordingly,

ed deliberations error, identify

it must the source of the error, the nature examine

discern emphasized by

the extent to which it was gravity, and prosecution, estimate its probable consequences. its The consider SHIPLEY, Appellant, Steve Steele court is to assume evidence is sufficient verdict, support the be distracted by assaying weight; its concentration must Texas, Appellee. STATE judge possibly on the error to No. 0412-87. Again, impact jury. it is the influenced evidence, error, not other that must Texas, Appeals Criminal say beyond whether the court can dictate En Banc. reasonable doubt that error made no contri- to the verdict. bution 2,May 1990. general With those considerations identi- Rehearing Denied June 1990.

fied, provide now a skeleton on we is, first, place methodology them. The light and its effects in

isolate the error

foregoing considerations and others particular

suggested by the facts of the second, and, judge whether the

case might influenced

error and its effects jurors reaching the minds rational

their The Court must be able verdict. be- a belief that was harmless

declare Chapman, at

yond a reasonable doubt. 828; Satterwhite, 486 U.S. 87 S.Ct. S.Ct., 258, 108

II my course, developed in

Of for reasons submission, I original do not

dissent

agree application of these stan- with the majority would make the facts

dards That of the teen- this cause. corroborated,

age accomplice indeed notes no affirmative acquit appel- instruction to plemental transcript” that details the es- lant if the entertained a reasonable pretrial sence of the hearing. Specifically, ...,” id., doubt as to whether

Notes

notes gence, majori- I which is what find that the granted must new trial. And that is ty opinion actually does in this cause. principle thought law that I I majority opinion’s further dissent to the Bunn, Court reaffirmed which has been although holding judge the trial erred authority such solid that this Court within admitting objection into evidence over year the last reversed a death penalty case guilt stage of the trial extraneous two per unpublished in a curiam opinion be- offenses, such error was harmless under complete transcription cause a of the court 81(b)(2), Appellate Rule Rules of Proce- reporter’s notes could not be had because dure. reporter the court lost his notes in that cause. See Richardson v. If carefully majority one reads what the (Tex.Cr.App.1988). S.W.2d 579 opinion interprets states about how it applies 81(b)(2), Rule easily he should con say I majority: only There is one clude as I majority opinion’s have that the way get Dunn, around and that is to holding” line simply “bottom expressly overrule Attempting it. to ex- errors that occurred would not have affect plain away haphazardly distinguish or to ed its join opin author and those who it, or engraft exceptions it, to even on will they jury. ion—had served on this But simply get job not done. they conclusively say, beyond cannot a rea Today, exception is created for an doubt, sonable that the errors did not have obviously negligent reporter court who was any impact jurors on all of the who served regular not the reporter court assigned to out, jury. previously pointed As the trial court. What will be the next sound, strange as it individu exception that this Court will create for als who can furnish us with the answer are negligent another reporter court who can- permitted not to inform us whether the keep track of his or her notes? How- errors made no contribution to their deci ever, just might because there abe few finding appellant guilty sion or in answer reporters out there negligent who are ing special issues submitted to them at keeping track of their notes should

Case Details

Case Name: Harris v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 28, 1989

Citation: 790 S.W.2d 568

Docket Number: 69366

Court Abbreviation: Tex. Crim. App.