Davis, Vincent

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

PD-1309-05 VINCENT DAVIS, Appellant

v.

THE STATE OF TEXAS

ON DISCRETIONARY REVIEW OF CASE 03-04-00013-CR OF THE

THIRD COURT OF APPEALS

TRAVIS COUNTY

Womack, J., filed a dissenting opinion in which Price and Johnson, JJ., joined.

The Court's opinion shows on its face that most of the evidence about the alleged offense was Officer Canizales's testimony about what Patricia Ford told him. It literally was her blow-by-blow account of events that the officer did not see -- events that happened when only Ms. Ford and the appellant were there.

The officer's hearsay testimony was introduced in violation of the Sixth and Fourteenth Amendments, as the Supreme Court was to hold after this case was tried. It could be harmless error only if one is "convinced, beyond a reasonable doubt, that the admission of [such evidence] would probably not have had a significant impact on the minds of an average jury." ⁽¹⁾

This Court, like the Court of Appeals, finds the constitutional error harmless beyond a reasonable doubt, in part because of the appellant's testimony. Neither court has considered whether the appellant would have testified at all if the State's most important evidence had been excluded as the Constitution required.

For that reason, and because of the sheer volume of relevant detail in the erroneously admitted evidence, I cannot say, as the Due Process Clause requires, that "the State has met its burden of demonstrating that the admission of the [evidence in violation of the Constitution] did not contribute to [the appellant's] conviction." ⁽²⁾

I would reverse the judgments below so that this case could be tried as the Constitution requires. I respectfully dissent.

Filed: October 11, 2006.

Publish.

1.

Ante, at 13.

2.

Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (opinion of White, J., for five justices).