Roosevelt Young v. State

Young v. State IN THE TENTH COURT OF APPEALS No. 10-89-183-CR ROOSEVELT YOUNG, Appellant v. THE STATE OF TEXAS, Appellee From the 54th District Court McLennan County, Texas Trial Court # 89-155-C DISSENTING OPINION ON REMAND For the first time this court has utilized the concept of "overwhelming evidence" of guilt to determine that an error did not harm the defendant. Although Harris v. State appears to support the concept, the opinion itself warns against its use: In performing a harmless error analysis the easiest and consequently the most convenient approach one could employ is to determine whether the correct result was achieved despite the error [footnote omitted]. Or, notwithstanding the error, in light of all the admissible evidence was the fact finder's determination of guilt clearly correct? Stated another way, was there overwhelming evidence of guilt that was not tarnished by the error? This approach is incorrect because the language of the rule focuses upon the error and not the remaining evidence. Thus, it logically follows that the inherent difficulty with such an evaluation is that in applying only that standard the appellate court necessarily envisages what result it would have reached as a trier of fact, thereby effectively substituting itself for the trial court or the jury. Harris v. State, 790 S.W.2d 568, 585 (Tex. Crim. App. 1989) (emphasis added). Later opinions of the Court of Criminal Appeals are instructive about the "overwhelming evidence" concept. In Higginbotham v. State, the Court elaborated on Harris and said: In addition, the Court pointed out that standards for the determination of harmless error such as the "overwhelming evidence of guilt" test and the "correct result" test have been rejected by this Court. Higginbotham v. State, 807 S.W.2d 732, 734 (Tex. Crim. App. 1991) (emphasis added). And, in Anderson v. State the Court said: Tex.R.App.Proc. 81(b)(2) mandates that we reverse the judgment under review unless we determine beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. In Harris v. State, 790 S.W.2d 568 (Tex.Cr.App. 1989), we articulated a coherent standard for determining when an error is harmless. We do not determine harmlessness simply by examining whether there exists overwhelming evidence to support the verdict of guilt, but rather calculate as much as is possible the probable impact of the error on the jury in light of the existence of the other evidence. . . . It is the effect of the error and not the existence of overwhelming evidence or the lack thereof that dictates our judgment. Anderson v. State, 817 S.W.2d 69, 72-73 (Tex. Crim. App. 1991) (emphasis added). Even if we were permitted to assess the "overwhelming evidence," I do not agree that we could in this case. The Court of Criminal Appeals has determined that the court "erred in denying Young's request for and motion to produce `records [a prosecution witness] reviewed prior to her testimony for purpose of impeachment.'" See Young v. State, No. 268-91, slip op. at 3 (Tex. Crim. App. May 6, 1992). Because the records were not produced, we can only speculate about what would have happened if counsel had been given access to them during the trial. To determine that the evidence of guilt was overwhelming, we must speculate that the records would not have assisted counsel in cross-examining the witness and that they contained nothing that would have supported Young's position. To my mind, a determination beyond a reasonable doubt that the error did not contribute to Young's conviction or punishment should not be based on speculation. Thus, I dissent. BILL VANCE Justice Opinion delivered and filed October 30, 1992. Publish