harmfulness error in Texas

2015“The harmfulness of error in a jury charge should be measured, at least in part, against the likelihood that the jury’s verdict was actually based upon an alternative theory of culpability not affected by erroneous portions of the charge.” Williams, 226 S.W.3d at 618 (citing Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim.

2014“The harmfulness of error in a jury charge should be measured, at least in part, against the likelihood that the jury’s verdict was actually based upon an alternative theory of culpability not affected by erroneous portions of the charge.” Williams v. State, 226 S.W.3d 611, 618 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996)).

1994The majority correctly states the standard of review, as enunciated in Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989), we must apply in determining the harmfulness of an error in admitting evidence, yet misapplies the examination and neglects to calculate the probable impact of the error on the jury in light of the existence of the other evidence.

1991Unlike the dictates of Jackson v. Virginia, 443 U.S. 307 [ 99 S.Ct. 2781 , 61 L.Ed.2d 560 ] (1979), in resolving the issue of the harmfulness of an error an appellate court is obligated to examine the entire record in a neutral, impartial and evenhanded manner and not ‘in the light most favorable to the prosecution.’ Harris, 790 S.W.2d at 585-586 .

2006See id. at 763 .

2004See id. at 763 .

2002It is the effect of the error and not the existence of overwhelming evidence or the lack thereof that dictates our judgment. 791 S.W.2d at 130 (citations omitted) (emphasis added).

1995In saying so, we are mindful of the pronouncement in Orona v. State, 791 S.W.2d 125, 130 (Tex.Crim.App.1990) wherein the court of criminal appeals stated: The task before us is not to determine the harmfulness of the error simply by examining whether there exists overwhelming evidence to support appellant’s guilt.

1972Error, of course, will result if the defendant is denied the opportunity to have made available such statement for the appellate record for the purpose of showing injury, if any.” (emphasis supplied) Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (concurring opinion).

1972Error, of course, will result if the defendant is denied the opportunity to have made available such statement for the appellate record for the purpose of showing injury, if any.” (emphasis supplied) Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (concurring opinion).

2002Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989); Biggs, 921 S.W.2d at 285 .

1998Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989); Biggs v. State, 921 S.W.2d 282, 285 (Tex.App.—Houston [1st Dist.] 1995, pet. ref'd).

2016“The harmfulness of error in the jury charge should be measured, at least in part, against the likelihood that the jury’s verdict was based on an available alternative theory of culpability that was not affected by the erroneous portion of the charge.” Loredo v. State, 130 S.W.3d 275, 283 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d).

2005See Loredo v. State , 130 S.W.3d 275, 283 (Tex. App. C Houston [14th Dist.] 2004, pet. ref = d) ( A The harmfulness of error in the jury charge should be measured, at least in part, against the likelihood that the jury = s verdict was based on an available alternative theory of culpability that was not affected by the erroneous portion of the charge. @ ).

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.).

2011Ex parte Pruitt , 233 S.W.3d 338, 346 (Tex. Crim.

2011Ex parte Pruitt, 233 S.W.3d 338, 346 (Tex.Crim.App.2007); Dixon v. State, 201 S.W.3d 731, 735 (Tex.Crim.App.2006). 63 . 193 S.W.3d at 909-10 . 64 .

2005P. 81(b)(2)], we should not resolve the issue of harmfulness as a matter of first impression"); but see id. at 30-32 (Baird, J., concurring and dissenting) (arguing that "remanding cases for a harm analysis is an illusory display of respect and a meaningless squandering of judicial resources that our over-burdened appellate court system can ill afford"). [2] See e.g., Gipson v. State, 844 S.W.2d 738, 743-44 (Tex.Crim.App.1992) (Benavides, J., concurring) (arguing that "a due regard for the authority of our intermediate appellate courts at least militates strongly in favor" of this Court exerci

2005See e.g., Gipson v. State , 844 S.W.2d 738, 743-44 (Tex. Crim. App. 1992) (Benavides, J., concurring) (arguing that "a due regard for the authority of our intermediate appellate courts at least militates strongly in favor" of this Court exercising restraint in assessing the harmfulness of error before the intermediate court has had an opportunity to do so because "[i]t is just not possible to review a matter which has not yet been viewed in the first place"). 3.

2004Margraves v. State, 56 S.W.3d 673, 680 (Tex.App.-Houston [14th Dist.] 2001, no pet.).

2004Margraves v. State, 56 S.W.3d 673, 680 (Tex. App. C Houston [14th Dist.] 2001, no pet.).

1999Newsome v. State, 829 S.W.2d 260, 264 (Tex.App.SDallas 1992, *356 no pet.); see Cullen v. State, 719 S.W.2d 195, 196-97 (Tex.Crim.App.1986).

1992See Cullen, 719 S.W.2d at 198 .

1992Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex.1990); Jones v. Kinder, 807 S.W.2d 868, 873 (Tex.App.-Amarillo 1991).

1992Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex.1990); Jones v. Kinder, 807 S.W.2d 868, 873 (Tex.App.—Amarillo 1991).

2015“The harmfulness of error in a jury charge should be measured, at least in part, against the likelihood that the jury’s verdict was actually based upon an alternative theory of culpability not affected by erroneous portions of the charge.” Williams, 226 S.W.3d at 618 (citing Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim.

2014“The harmfulness of error in a jury charge should be measured, at least in part, against the likelihood that the jury’s verdict was actually based upon an alternative theory of culpability not affected by erroneous portions of the charge.” Williams v. State, 226 S.W.3d 611, 618 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996)).

1993Unlike the dictates of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), in resolving the issue of the harmfulness of an error an appellate court is obligated to examine the entire record in a neutral, impartial and even-handed manner and not “in the light most favorable to the prosecution.” (citations omitted] A review of the evidence in this manner is necessary because, for example, an error can be harmful when it has the effect of disparaging a defense, whereas if there is no defense the error could have been harmless, [emphasis added] Id. at 585-586.

1993Unlike the dictates of Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), in resolving the issue of the harmfulness of an error an appellate court is obligated to examine the entire record in a neutral, impartial and even-handed manner and not “in the light most favorable to the prosecution.” (citations omitted] A review of the evidence in this manner is necessary because, for example, an error can be harmful when it has the effect of disparaging a defense, whereas if there is no defense the error could have been harmless, [emphasis added] Id. at 585-586.

2015The Court of Appeals fails to acknowledge that the admission into evidence of appellant's admission to assaulting the complainant plainly had a prejudicial influence upon the jury simply by nature of the error. "[A] confession is like no other evidence." Arizona v. Fulminante, 499 U.S. 279, 296 (1991).

2014See McClure v. State, 544 S.W.2d 390, 393 (Tex. Crim.

2012Mendez v. State, 138 S.W.3d 334, 339-41 (Tex.Crim.App. 2004).

2011Id. 61 . 175 S.W.3d at 748 ; see also Warner v. State, 245 S.W.3d 458, 465 (Tex.Crim.App.2008) ("the source of charge error has little relevance to the harmfulness of the error.”). 62 .

2011Ex parte Pruitt, 233 S.W.3d 338, 346 (Tex.Crim.App.2007); Dixon v. State, 201 S.W.3d 731, 735 (Tex.Crim.App.2006). 63 . 193 S.W.3d at 909-10 . 64 .

2007See Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999).

2007See Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.1999).

1999Newsome v. State, 829 S.W.2d 260, 264 (Tex.App.SDallas 1992, *356 no pet.); see Cullen v. State, 719 S.W.2d 195, 196-97 (Tex.Crim.App.1986).

1998See Bishop , 869 S.W.2d at 346 .