Danny Beatley v. State

Opinion

Danny Beatley v. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-118-CR

     DANNY BEATLEY,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 359th District Court

Montgomery County, Texas

Trial Court # 01-09-05568-CR

                                                                                                                

CONCURRING OPINION

                                                                                                                

      I concur in affirming the judgment. I would, however, sustain Beatley’s complaint about the admissibility of the “expert” testimony, because the State failed to meet its burden of showing that the witness is qualified on the specific matter in question. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000).

      A court of appeals may no longer presume that the trial judge disregarded inadmissible testimony in a bench trial. Gipson v. State, 844 S.W.2d 738, 741 (Tex. Crim. App. 1992). Thus, a harm analysis is required.

      In light of the reports and extensive testimony from Dr. Roger Saunders and Dr. Carmen Petzold, both offered by Beatley and heard by the trial judge who was the fact finder at the punishment hearing, I would find the error harmless. Tex. R. App. P. 44.2(b) (error harmless unless substantial rights violated).

                                                                   BILL VANCE

                                                                   Justice

Concurring opinion delivered and filed July 30, 2003

Do not publish

e issue and affirm the judgment.

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed July 25, 2007

[CRPM]

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[1]               The original clerk’s record contains the order appointing counsel signed five days after Gamble signed his application for appointed counsel.