- DID THE 13TH COURT OF APPEALS ERR BY IT’S FAILURE TO CORRECTLY CONDUCT A HARM ANALYSIS?
- WHEN CONDUCTING A HARM ANALYSIS, MUST AN APPELLATE COURT CONSIDER ALL THE EVIDENCE IN THE RECORD
- WHEN The State has not filed a reply brief AND the State's failure to file a brief IS TREATED as a confession of error. Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.-Corpus Christi 2002, no pet.) IS Siverand v. State IN CONFLICT WITH AN APPELLATE COURT CONSIDERING ALL THE EVIDENCE IN THE RECORD?
- WHAT IS THE PROPER TEST FOR ANALYZING HARM WHEN CONSIDERING THE EFFECTS OF THE ERRONEOUS EXCLUSION OF ADMINISTRATIVE LAW FIRMLY ROOTED IN TWC POLICY. RULES AND PRECEDENT?
The appropriate standard of harm is to disregard an error unless a substantial right has been affected. Tex. Rule App. P. 44.2(b). We have held that a substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). We adopted this language from the Supreme Court's holding in Kotteakos v. United States, 328 U.S. 750 (1945). In Kotteakos, the Supreme Court explained:
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Id. at 764-65 (citation and footnote omitted).
We agree with the appellant that no burden to show harm should be placed on the defendant who appeals. In Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000), we explained that "no party should have the burden to prove harm from an error, and there ordinarily is no way to prove 'actual' harm." Id. at 787. In that case we held that the appellant did not have the burden to prove harm in the context of jury charge error under Code of Criminal Procedure Article 36.19. Rather, it is the duty of the reviewing court to assess harm from the context of the error. Id. The rationale for the decision in that case was that determining the existence of harm from an error is not the same as proving facts at trial. Id. (citing Roger Traynor, The Riddle of Harmless Error 25-26 (1970)). We explained that the parties may assist by suggesting how the appellant was harmed (or not), but it is the responsibility of the reviewing court to decide whether it is likely that the error had some adverse effect on the proceedings. Id. (quoting Wayne R. LaFave & Jerold H. Israel, Criminal Procedure 1165 (2d ed. 1992)).
The Supreme Court has adopted the same rule in the context of Federal Rule of Criminal Procedure 52(a). Our harmless error rule is based on that federal rule. See Carranza v. State, 980 S.W.2d 653, 657 (Tex. Crim. App. 1998). Therefore we look to the Supreme Court for guidance in interpreting Rule 44.2(b).
The Supreme Court has explained that, in the federal system, it is the responsibility of the appellate court to determine whether a trial error affected the resulting judgment. In O'Neal v. McAninch, 513 U.S. 432, 437 (1995), the Court explained that there is a difference between a trial court's task of managing the admission of evidence and the reviewing court's task of applying a legal standard to a trial that is already complete.
As an initial matter, we note that we deliberately phrase the issue in this case in terms of a judge's grave doubt, instead of in terms of "burden of proof." The case before us does not involve a judge who shifts a "burden" to help control the presentation of evidence at a trial, but rather involves a judge who applies a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect.
Id. at 436. The Court quoted Justice Traynor for the proposition that
Whether or not counsel are helpful, it is still the responsibility of the . . . court, once it concludes there was error, to determine whether the error affected the judgment. It must do so without benefit of such aids as presumptions or allocated burdens of proof that expedite fact-finding at the trial.
Id. at 437 (citing R. Traynor, The Riddle of Harmless Error 26 (1970)). We find the Supreme Court's reasoning compelling and adopt this reasoning for application to Rule 44.2(b). We hold that it is the responsibility of the appellate court to assess harm after reviewing the record and that the burden to demonstrate whether the appellant was harmed by a trial court error does not rest on the appellant or the State.
Next we must address how a reviewing court determines whether a defendant was harmed when the trial court has erroneously denied one or more challenges for cause. As we explained above, substantial rights are affected when the error has a substantial and injurious effect or influence in determining the jury's verdict
