I respectfully dissent. After reviewing the record, I disagree with the majority's conclusion that the trial court's error did not affect appellant's substantial rights.
A Harris County grand jury indicted appellant for aggravated assault with a deadly weapon. See Tex. Pen. Code § 22.02(a)(2). At trial, the State offered the testimony of three witnesses in an attempt to prove its case. The first witness, Calvin Washington, testified that shortly after 6:00 p.m. on June 21, 1999, at the intersection of Alvin and Coffee Streets in Houston, he had a brief "conversation" with appellant regarding appellant's behavior toward Washington's girlfriend. Washington testified further that once the conversation ended, appellant "all of a sudden" produced a handgun and shot at him several times, hitting him twice. The second witness, Kendra Williams, testified that at the time and place in question, appellant shot at Washington several times without warning and without provocation. The third witness, Rodney Williams, testified that appellant argued with, and then shot at, Washington.
Appellant, in an effort to prove that he acted in self-defense, (1) offered the testimony of four witnesses, including himself. Their testimony concerning the events surrounding the shooting differed markedly from that of the State's witnesses. The first defense witness, Brady Anderson, testified that just before the shooting, Washington threatened appellant and warned him that he (i.e., Washington) was carrying a gun. The second defense witness, William Simon, testified that Washington threatened appellant and charged at him. The third witness, Renee Cooper, testified that Washington threatened appellant twice and "reached down ... to his side" just before appellant shot him. Finally, appellant himself testified that just before the shooting, Washington was visibly angry and threatened to shoot him and his grandmother, (2) that Washington was armed with a handgun, that he feared for his life because of Washington's actions, and that he shot Washington only when Washington "started reaching for his [gun]."
The trial court, in response to the State's hearsay objection, did not allow Anderson, Simon, and Cooper to testify about the specifics of Washington's alleged threats against appellant. Had they been allowed to testify, Anderson and Cooper would have corroborated appellant's claim that just before the shooting, Washington threatened to shoot appellant and his grandmother, and Simon would have testified that Washington threatened "to wipe out the corner."
The jury rejected appellant's defense, found him guilty as charged, and assessed his punishment, enhanced by a prior felony conviction, at imprisonment for eighteen years and a fine of $8,000.
On direct appeal, appellant argued that the trial court erred in, among other things, not allowing Anderson, Simon, and Cooper to testify concerning the specifics of Washington's alleged threats against appellant. "The testimony of the threats to kill made by Calvin Washington," appellant argued, "were directly relevant to show the reasonableness of appellant's belief that Washington was about to use unlawful deadly force." Appellant also argued that the trial court's error was not harmless:
The precise threats made by [Washington] were a vital component for the jury's consideration of the reasonableness of appellant's actions and to prove that Washington was the aggressor. [The jurors] were only allowed to hear that "threats were made." A threat may be anything from a threat to do something totally nonviolent all the way up to threats to kill.... Although appellant was allowed to testify that he saw Washington reach for a gun, he was also impeached with prior felony convictions and a prior assault.
The Fourteenth Court of Appeals agreed with appellant that the trial court erred in excluding the testimony in question, but the court also held that the error was harmless under Texas Rule of Appellate Procedure 44.2(b). "After examining the record as a whole, we have fair assurance exclusion of the specific nature of the threats did not influence the jury or had only a slight effect." Collier v. State, No. 14-00-00609-CR (Tex.App.-Houston [14th Dist.], Aug. 8, 2002) (unpub.), slip op. at 10. Justice Hudson dissented, arguing that the trial court's error was not harmless:
[A]ppellant's defensive theory was self-defense. While appellant was permitted to testify that he believed he was justified in shooting Washington to save his own life, the effectiveness of his defense was seriously eroded by the exclusion of testimony from bystanders who would have allegedly corroborated Washington's offensive and aggressive demeanor and who heard him make numerous threats to kill appellant moments before the shooting.
Collier v. State, No. 14-00-00609-CR (Hudson, J., dissenting), slip op. at 2.
We granted appellant's petition for discretionary review to determine whether the court of appeals erred in its harmless error analysis. See Tex. R. App. Proc. 66.3(e).
Texas Rule of Appellate Procedure 44.2(b) provides that an appellate court must disregard a non-constitutional error that does not affect a criminal defendant's "substantial rights." Under that rule, an appellate court may not overturn a conviction for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). (3)
After reviewing the record in this case, I do not have fair assurance that the trial court's error did not have a substantial and injurious effect or influence in determining the jury's verdict at the guilt/innocence phase. In order to prevail at the guilt/innocence phase, appellant had to persuade the jury that, at the time of the shooting, he reasonably believed that his use of deadly force was immediately necessary to protect himself and his grandmother from Washington's use of unlawful deadly force. Although appellant was permitted to testify that Washington was armed and belligerent and that Washington threatened to use deadly force against him and his grandmother, the effectiveness of appellant's testimony was, in the words of Justice Hudson, "seriously eroded by the exclusion of testimony from [three] bystanders who would have ... corroborated Washington's offensive and aggressive demeanor and who heard him make ... threats to kill appellant moments before the shooting." If the jury had heard the excluded testimony, it could have concluded that appellant's self-defense claim was valid.
I also do not have fair assurance that the trial court's error did not have a substantial and injurious effect or influence in determining the jury's verdict at the punishment phase. Given what the jury was allowed to hear, the jury could have concluded that, at the time of the shooting, appellant did not reasonably believe that Washington actually represented a deadly threat to appellant. But, if the jury had heard the excluded testimony, it could have concluded that the truth lay somewhere between appellant's version and the State's version and could have given appellant the benefit of any residual doubt by assessing a lighter sentence.
I respectfully dissent. I would reverse the judgment of the court of appeals and remand the case to the trial court for a new trial.
DELIVERED NOVEMBER 5, 2003
DO NOT PUBLISH
1. Appellant's defense relied upon Texas Penal Code § 9.32(a), which provides, in relevant part, that a person is justified in using deadly force against another if the person reasonably believes the deadly force used is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force.
2. Evidence at trial established that appellant and his grandmother lived together in a home at the corner of Alvin and Coffee Streets.
3. Our holdings in Johnson and King sprang from Kotteakos v. United States, 328 U.S. 750, 764-765 (1946), in which the United States Supreme Court expounded upon the meaning of the federal "substantial rights" harmless error test:
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.... 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.