non-constitutional harm analysis in Texas

2026See Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim.

2024A trial court does not have the option to deny such a request, although such denial is subject to a non-constitutional harm analysis. communications or extrajudicial evidence and we, thus, do not find Abdygapparova instructive here. 27 See Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim.

2011See Russell v. State, 155 S.W.3d 176, 181 (Tex. Crim.App.2005).

2008Evid. 401. [5] Â Relevant evidence is generally admissible unless otherwise provided. Â See Rule 402. Â Â Â Â Â Â Â Â Â Â Â Â The evidence at issue allegedly portrayed the scene of the shooting as it occurred and immediately after it occurred. Â However, from our review of the exhibit, it is difficult to see how the picture in question contributed anything of consequence toward proof of any of the elements of the offense. Â At best, the picture was simply cumulative of the testimony of the witness. Â If we assume the evidence had such limited relevancy that it should not have been admitted, we

2026Proenza, 541 S.W.3d at 791 (citing Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim.

2025See id.; Gray v. State, 159 S.W.3d 95, 98 (Tex. Crim.

2015Torres v. State, 137 S.W.3d 191, 198-199 (Tex. App.-Houston [1st Dist] 2004, no pet.).

2015Torres v. State, 137 S.W.3d 191, 198-199 (Tex. App.-Houston [1st Dist] 2004, no pet.).

2015See VanNortrick, 227 S.W.2d at 708; Anderson v. State, 182 S.W.3d 914 , -2- 918 (Tex. Crim.

2015See VanNortrick, 227 S.W.2d at 708; Anderson v. State, 182 S.W.3d 914 , -2- 918 (Tex. Crim.

2014A review of our previous cases shows that even the erroneous admission of potentially damaging evidence warranted a non-constitutional harm analysis: statements from a deceased victim,38 a written statement from a surviving victim,39 emotional testimony in the guilt phase from a victim’s mother discussing how she adopted the victim as an infant after volunteering at a hospital,40 references to a pre-trial proffer and plea negotiations,41 and scientifically unreliable expert testimony.42 Likewise, we have generally labeled errors in sustaining the State’s objections to the admission of a defend

2005In Johnson v. State, 43 S.W.3d 1 , (Tex.Crim.App.2001), the Court of Criminal Appeals explained the non-constitutional harm analysis, stating: If, when all is said and done, the conviction is sure [sic] that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand ... [b]ut if one cannot say, with fair assurance ... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.

2024See Sandoval, 665 S.W.3d at 515; see also Mitten 35 v. State, 228 S.W.3d 693 , (Tex. App.—Corpus Christi–Edinburg 2005, pet ref’d) (reversing and remanding a capital murder charge after finding harmful error in a non- constitutional harm analysis where the trial court’s admission of the defendant’s statement was prejudicial to his insanity defense).

2024App. 2002); Mata v. State, 517 S.W.3d 257, 269 (Tex. App.—Corpus-Christi-Edinburg 2017, pet. ref’d).

2024In conducting a non-constitutional harm analysis, “a reviewing court must look to the record as a whole to determine whether the defendant was aware of the particular information upon which [s]he should have been admonished—notwithstanding the lack of an admonishment—prior to the time that the trial court accepted h[er] plea.” Davison v. State, 405 S.W.3d 682, 688 (Tex. Crim.

2023See Hankins v. State, 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref’d) (recognizing that the erroneous admission of a prior conviction is subject to a non-constitutional harm analysis); see also Tex. R.

2021See Brecht, 507 U.S at 637 (citing Kotteakos, 328 U.S. at 776 .) (“The imbalance of the costs and benefits of applying the Chapman harmless-error standard on collateral review counsels in favor of applying a less onerous standard on habeas review of constitutional error.

2021Under that standard, a defendant’s substantial rights are only affected when the “error had a substantial and injurious effect or influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex.Crim.App. 2014).

2020Thus, according to the State, the non-constitutional harm standard of 44.2(b) applies because the error in question is statutory “under a plain reading of [rule] 44.2.” The State acknowledges that Love “may implicitly suggest a contrary result,” but it suggests that “it does not appear that the Court in Love considered the above analysis,” and, “[a]t any rate, the analysis advanced above has been expressly discussed and adopted by at least four members of that court.” See Dixon, 595 S.W.3d at 225 (Hervey, J., concurring); Hernandez v. State, 60 S.W.3d 106, 116 (Tex. Crim.

2015See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.

2015Apolinar v. State, 106 S.W.3d 407, 414 (Tex. App.—Houston [1st 13 Dist.] 2003), aff’d, 155 S.W.3d 184 (Tex. Crim.

2014VanNortrick, 227 S.W.3d at 709 ; Hines v. State, 396 S.W.3d 706, 708 (Tex.App.-Houston [14th Dist.] 2013, no pet.).

2014App. 2001). 38 Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim.

2012An error affects a substantial right “when the error had a substantial and injurious effect or influence in determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Ta.

2008Evid. 401. [5] Â Relevant evidence is generally admissible unless otherwise provided. Â See Rule 402. Â Â Â Â Â Â Â Â Â Â Â Â The evidence at issue allegedly portrayed the scene of the shooting as it occurred and immediately after it occurred. Â However, from our review of the exhibit, it is difficult to see how the picture in question contributed anything of consequence toward proof of any of the elements of the offense. Â At best, the picture was simply cumulative of the testimony of the witness. Â If we assume the evidence had such limited relevancy that it should not have been admitted, we