nonconstitutional error in Texas

2026Harm analysis We review the erroneous admission of extraneous offense evidence under Texas Rule of Appellate Procedure 44.2(b), which provides that a nonconstitutional error “that does not affect substantial rights must be disregarded.” See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim.

2021App. P. 44.2(b) (requiring a nonconstitutional error—such as the wrongful admission of extraneous offense evidence—to have a substantial and injurious effect or influence in determining the jury’s verdict before it may be considered harmful); Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

2015Nonconstitutional error is not grounds for reversal if, “ ‘after examining the record as a whole,’” there is “‘fair assurance that the error did not influence the jury, or had but a slight effect.’ ” Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998)).

2014Nonconstitutional error is not grounds for. reversal if, “after examining the record as a whole,” there is “fair assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002) (internal quotation marks omitted); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).

2019Specifically, we may not reverse the judgment of the trial court for nonconstitutional error, such as erroneously admitted evidence under Rule 107, if, after examining the record as a whole, we have a “fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict.” Casey, 215 S.W.3d at 885 .

2018“Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that an appellate court must disregard a nonconstitutional error that does not affect a criminal defendant’s ‘substantial rights.’” Id. (quoting TEX.

2024Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim.

2019App. P. 44.2(b); Martinez v. State, 17 S.W.3d 677 , 692–93 (Tex. Crim.

2020App. 2002) (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

2007Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001) (Texas Rule of Appellate Procedure 44.2(b) instructs that we must disregard “a nonconstitutional error ‘that *464 does not affect substantial rights.’ ... [Substantial rights are not affected by the erroneous admission of evidence ‘if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.’ ”); Bigley v. State, 831 S.W.2d 409, 413 (Tex.App.-Austin 1992), aff'd, 865 S.W.2d 26 (Tex.Crim.App.1993) (“Where there is not a reasonable possibility that

2024P. 44.2(b) (the nonconstitutional error standard); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.

2023P. 44.2(b) (the nonconstitutional error standard); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim.

2024See Haley, 173 S.W.3d at 518 ; King, 953 S.W.2d 266 at 271 .

2020See Haley, 173 S.W.3d at 518 ; King, 953 S.W.2d 266 at 271 .

2019Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

2019Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

2023See Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d) (“The admission of inadmissible hearsay constitutes nonconstitutional error . . . .”).

2022See Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

2022App. 2003); then citing Thompson v. State, 95 S.W.3d 537, 543 (Tex. App.—Houston [1st Dist.] 2002, no pet.)).

2007See Taylor v. State , 109 S.W.3d 443 (Tex.Crim.App. 2003) (finding Rule 44.2(b) standard applicable to improper hypothetical by trial court during voir dire); Thompson v. State , 95 S.W.3d 537, 543 (Tex.App.-Houston [1 st Dist.] 2002, no pet.) (same).

2016Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

2016Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.

2009Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App.2002).

2009Burnett v. State, 88 S.W.3d 633, 637-38 (Tex.Crim.App. 2002).

2022“If abuse of discretion infringing the right to question the venire is shown, we will evaluate harm to appellant under the standard applicable to nonconstitutional error under Rule of Appellate Procedure 44.2(b).” Id. (first citing Taylor v. State, 109 S.W.3d 443 (Tex. Crim.

2007See Taylor v. State , 109 S.W.3d 443 (Tex.Crim.App. 2003) (finding Rule 44.2(b) standard applicable to improper hypothetical by trial court during voir dire); Thompson v. State , 95 S.W.3d 537, 543 (Tex.App.-Houston [1 st Dist.] 2002, no pet.) (same).

2025Nguyen v. State, 693 S.W.3d 732 , 740 (Tex. App.—Houston [14th Dist.] 2024, no pet.) (citing Snowden v. State, 5 353 S.W.3d 815, 818 (Tex. Crim.

2025Id. (citing Tex. R.

2024App. 2011); Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim.

2022P. 44.2(b) (the nonconstitutional error standard); see Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim.

2012Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001); see Tex. R.App.

2012Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim.

2006Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App.2003); Motilla v. State, 78 S.W.3d 352, 356 (Tex.Crim.App.2002); Solomon, 49 S.W.3d at 365 .

2006See id. at 763 .

2013App. P. 44.2(b); Moon v. State, 44 S.W.3d 589 , 594–95 (Tex. App.—Fort Worth 2001, pet. ref’d) (stating that the admission of otherwise inadmissible hearsay is a nonconstitutional error and disregarded unless it affects the defendant’s substantial rights).

2011App. 2001); Davis v. State , 268 S.W.3d 683, 709 (Tex. App.—Fort Worth 2008, pet. ref’d) (“Because error in admitting a statement in violation of the hearsay rules of evidence is non-constitutional, we apply rule 44.2(b).”); Moon v. State , 44 S.W.3d 589, 594 (Tex. App.—Fort Worth 2001, pet. ref’d) (“The admission of otherwise inadmissible hearsay is a nonconstitutional error.”).

2020See Bell v. State, 566 S.W.3d 398, 408 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

2020See Bell v. State, 566 S.W.3d 398, 408 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

2018“A substantial right is 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.

2017“A substantial right is affected when the error had a substantial and injurious effect or influence in determining the 14 jury’s verdict.” Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim.

2006See Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App.2005) (explaining that since the appellant did not contest the Court of Appeals' application of the standard for nonconstitutional error, we would assume that it was the proper rule).

2006See Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App.2005) (explaining that since the appellant did not contest the Court of Appeals’ application of the standard for nonconstitutional error, we would assume that it was the proper rule).

2009Cardenas was harmed because of the denial as to juror number 28 because he (1) used a peremptory strike to remove juror number 28, (2) exhausted his peremptory strikes, (3) requested and was denied additional peremptory strikes, and (4) identified three specific objectionable veniremembers who sat on the jury and on whom he would have exercised peremptory strikes. 9 See Johnson v. State, 43 S.W.3d 1, 7 (Tex.Crim.App.2001) (holding that harm for a denial of a challenge to cause, which is based under the nonconstitutional error standard of rule of appellate procedure 44.2(b), requires these four

2003Johnson v. State , 43 S.W.3d 1, 4 (Tex. Crim.

2009App. 2001) (holding that harm for a denial of a challenge to cause, which is based under the nonconstitutional error standard of rule of appellate procedure 44.2(b), requires these four elements); see also Busby v. State , 253 S.W.3d 661, 670 (Tex. Crim.

2009Cardenas was harmed because of the denial as to juror number 28 because he (1) used a peremptory strike to remove juror number 28, (2) exhausted his peremptory strikes, (3) requested and was denied additional peremptory strikes, and (4) identified three specific objectionable veniremembers who sat on the jury and on whom he would have exercised peremptory strikes. 9 See Johnson v. State, 43 S.W.3d 1, 7 (Tex.Crim.App.2001) (holding that harm for a denial of a challenge to cause, which is based under the nonconstitutional error standard of rule of appellate procedure 44.2(b), requires these four

2007Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001) (Texas Rule of Appellate Procedure 44.2(b) instructs that we must disregard “a nonconstitutional error ‘that *464 does not affect substantial rights.’ ... [Substantial rights are not affected by the erroneous admission of evidence ‘if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.’ ”); Bigley v. State, 831 S.W.2d 409, 413 (Tex.App.-Austin 1992), aff'd, 865 S.W.2d 26 (Tex.Crim.App.1993) (“Where there is not a reasonable possibility that

2007App. 2001) (Texas Rule of Appellate Procedure 44.2(b) instructs that we must disregard “a nonconstitutional error ‘that does not affect substantial rights.’ . . . [S]ubstantial rights are not affected by the erroneous admission of evidence ‘if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.’”); Bigley v. State, 831 S.W.2d 409, 413 (Tex. App.—Austin 1992), aff’d, 862 S.W.2d 26 (Tex. Crim.

2024See Easley, 424 S.W.3d at 541 .

2016See Easley, 424 S.W.3d at 540-41 ; Hill, 426 S.W.3d at 876 .

2009Aguirre-Mata, 125 S.W.3d at 473 .

2009Aguirre-Mata, 125 S.W.3d at 473 .

2016“If the error affected substantial rights, then, it is not harmless.” VanNortrick, 227 S.W.3d at 708 .

2009See VanNortrick, 227 S.W.3d at 708 .

2024See Haley, 173 S.W.3d at 518 ; King, 953 S.W.2d 266 at 271 .

2020See Haley, 173 S.W.3d at 518 ; King, 953 S.W.2d 266 at 271 .

2015Ponce v. State, 68 S.W.3d 718, 722 (Tex. App.--Houston [14th Dist.] 2001, pet. ref’d).

2009Ponce , 68 S.W.3d at 722 . (5) Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that any nonconstitutional error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

2009App.), cert. denied , 129 S. Ct. 625 (2008).

2009Cardenas was harmed because of the denial as to juror number 28 because he (1) used a peremptory strike to remove juror number 28, (2) exhausted his peremptory strikes, (3) requested and was denied additional peremptory strikes, and (4) identified three specific objectionable veniremembers who sat on the jury and on whom he would have exercised peremptory strikes. 9 See Johnson v. State, 43 S.W.3d 1, 7 (Tex.Crim.App.2001) (holding that harm for a denial of a challenge to cause, which is based under the nonconstitutional error standard of rule of appellate procedure 44.2(b), requires these four