Ray, Bonnie Jalaane

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-1827-04 BONNIE JALAANE RAY, Appellant v. THE STATE OF TEXAS ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS GREGG COUNTY Hervey, J., filed a concurring opinion in which Johnson, Keasler, and Cochran, JJ., joined. CONCURRING OPINION In this case, the trial court excluded testimony of Williams (also known as "Big O") that was relevant to appellant's defense that George (the driver) exclusively possessed the Tylenol bottle found on appellant's side of the car. This Tylenol bottle contained the drugs (rocks of crack cocaine) that appellant was accused of possessing with the intent to deliver. The Court of Appeals decided that the error in excluding the testimony was harmless because it would not have added significantly to appellant's defense. See Ray v. State, 148 S.W.3d 218, 225 (Tex.App.-Texarkana 2004). The majority disagrees and suggests that only a jury could decide whether Big O's excluded testimony would have added significantly to appellant's defense. See Ray v. State, S.W.3d slip op. at 5 (Tex.Cr.App. No. PD-1827-04, delivered this date) (whether Big O's testimony would have added significantly to appellant's defense was an issue for the jury to decide). This abrogates well-established case-law on how appellate courts should apply the Tex.R.App.Proc. 44.2(b) harm analysis for non-constitutional error and could result in the reversal of many criminal cases for clearly harmless errors. Case-law says that Rule 44.2(b) does not authorize an appellate court to reverse a conviction for non-constitutional error when it has fair assurance that this error did not influence the jury or had but a slight effect. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App. 1998). In United States v. Peak, 856 F.2d 825, 834-35 (7th Cir.), cert. denied, 488 U.S. 969 (1988), the Seventh Circuit articulated this standard as it applies to a trial court's erroneous exclusion of defense evidence: (1) When erroneously excluded evidence would have been the only or primary evidence in support of or in opposition to a claim or defense, its exclusion is deemed to have had a substantial effect on the jury. In [citation omitted], for example, we suggested that "[i]f the defendant were utterly precluded from defending himself, it would be clear that his conviction had to be reversed even if the evidence of guilt was overwhelming and could not have been offset by the evidence that the defendant would have introduced if allowed to do so." [Citation Omitted]. Moreover, in [citation omitted], although this court held the erroneous exclusion of non-hearsay to be harmless, we implied that had the defendant not been able to present other evidence to support his theory of the case, the error would not have been harmless. Similarly, other courts have held an error not to be harmless when it "'precludes or impairs the presentation of an accused's sole means of defense.'" [Citations Omitted].[ (2)] Thus, this Court could still decide that the error in excluding Big O's testimony was harmless if, as the Court of Appeals decided, "it would not have added significantly to [appellant's] defense" or if Big O's testimony was cumulative of other defense evidence that was before the jury. The record in this case reflects that Big O testified by offer of proof that he saw George in possession of the Tylenol bottle in appellant's presence at Big O's house shortly before the police found this Tylenol bottle on appellant's side of the car. For example, on cross-examination by the prosecution during appellant's offer of proof, Big O testified: Q. [Appellant] knew he had it already? A. She was sitting there. She had to know. Q. Okay. No question, she knew he had cocaine? A. Yeah. Q. And [defense counsel] asked you State's Exhibit 2-strike that, back up. [George] and [appellant] leave your house, correct, they leave together? A. After he had gave me some. Big O was not permitted to testify in front of the jury that George was in possession of the Tylenol bottle, but only that he never saw appellant in possession of the Tylenol bottle that the police found on appellant's side of the car. Q. [DEFENSE]: During the period of time that [George and appellant] were at the house, did you ever see [appellant] in possession of [the Tylenol bottle]? A. [BIG O]: No, I did not. Appellant testified before the jury that she never exercised "any control over that crack cocaine that day." (3) She also testified that she "knew what [George] had" when she saw Big O and George "conversing" at Big O's house but that she "wasn't paying attention to it." Q. [DEFENSE]: Why did you go with [George]? A. [APPELLANT]: Stupidity. Well, when [George] came in, like I said, I was watching TV, and him and [Big O] were conversing, and I knew what he had. I never really-wasn't paying attention to it, and he [George] came over, and I was laying kind of across the bed watching TV in the corner of the room, and [George] sat down by me and he popped me on the leg and he said, "What are you up to?" And I said, "Nothing." I said, "I'm sitting here thinking about going home or going to McDonald's and get something to eat." He said, "McDonald's?" And I said, "Yes." He said, "All right." There's-the place that I lived at had a couple of 16-year-old boys living there, and I said, "I know there's probably nothing there to eat." And I really didn't want to drive my car to McDonald's because my tags were out, and I had to choose between spending that little dollar, dollar and a half on McChicken or gas. So [George] offered to take me. I got in the-that's where we headed. That's where I was headed. Appellant testified on cross-examination that she did not see the Tylenol bottle that night (although it is not clear whether she was referring to not seeing it at Big O's or in George's car just before the police seized it). In support of its argument that it was harmless to exclude Big O's proffered testimony that he saw George with the Tylenol bottle at Big O's house, the State asserts in its brief: This case presents an interesting problem. The trial court, at the request of the state, precluded [Big O] from testifying that George had delivered cocaine to him immediately before the car ride. Appellant chose not to mention this transaction despite being present when it occurred. [Citation to record omitted]. Appellant's present argument that the central crux of [Big O's] testimony, that George possessed the cocaine and delivered it to him, was very important to her defense is belied by her decision not to tell the jury about it herself. Appellant chose to say that she had never seen the [Tylenol] bottle that [Big O] said was like the bottle in George's possession. [Citation to record omitted]. If she had testified to the same story as related by [Big O], i.e., that she was present and observed the transaction between the two men, appellant would have been in a position to ask the trial court to reconsider its decision to exclude testimony and in a position to argue to this Court that her defense was compromised by the exclusion of corroborating testimony. Appellant chose a different path. Perhaps she decided after having a dry run with the "hanging out in the living room watching George deal drugs and then getting into the car with him" scenario that this version of events was not helpful and tried to invent a better story, one where she did not know about the drugs. In any case, appellant chose not to personally present the information that she complains was harmful error to exclude. [Big O's] testimony would not have corroborated appellant's testimony, but contradicted it on the important point of her awareness of the cocaine. But, I read appellant's testimony to say that she knew George had drugs (when she testified that "I knew what he had") but that she was not paying much attention to what was going on between George and Big O at Big O's house. This could explain why she did not testify "to the same story as related by [Big O]" and why she could not "personally present the information that she complains was harmful error to exclude." This makes Big O's excluded testimony even more important to the defense because it was the only evidence which could have placed the Tylenol bottle in the sole possession of George which would have added significantly to appellant's defense that she did not possess it. Compare United States v. Legarda, 17 F.3d 496, 499 (1st Cir.), cert. denied, 513 U.S. 820 (1994) (error in excluding defense evidence harmless where substance of excluded evidence was eventually allowed into evidence). In addition, the evidence of appellant's guilt is not so overwhelming as to support a conclusion that there is a fair assurance that the jury's verdict would have been the same even with the admission of Big O's excluded testimony. The erroneous exclusion of Big O's testimony was not harmless. With these comments, I join only the Court's judgment. Hervey, J. Filed: November 16, 2005 Publish 1. See Potier v. State, 68 S.W.3d 657, 662 (Tex.Cr.App. 2002) (Rule 44.2(b) harmless error analysis for non-constitutional errors is substantially the same as that in the federal system). 2. Also see United States v. Hanson, 994 F.2d 403, 407 (7th Cir 1994) (erroneous exclusion of evidence harmless if "the evidence of guilt was overwhelming and the defendant was allowed to put on a defense, [even] if not quite so complete a defense as he might reasonably have desired"); State v. Denison, 607 N.W.2d 796, 800 (Minn. Ct. App. 2000) (error in excluding defense evidence harmless if appellate court "is satisfied beyond a reasonable doubt that the jury would have reached the same verdict if the evidence had been admitted and its potential for damage fully realized"). 3. Q. [DEFENSE]: Did you ever at any time exercise any control over that crack cocaine that day. A. [APPELLANT]: No, sir, never.