George MOFF, Appellant, v. the STATE of Texas

153 S.W.3d 452, 2005 Tex. Crim. App. LEXIS 108, 2005 WL 156706

Opinion

KELLER, P.J.,

filed an opinion dissenting to the denial of the State’s motion for rehearing

in which HERVEY, J., joined.

On original submission, we held that the trial court did not err in quashing MofPs indictment before trial. We then said that, because there had been no trial, a harm analysis was unnecessary. This was a curious statement’and-^despite the fact that I voted for it the first time around — incorrect. The reason a harm analysis was unnecessary is that there was no error.

The statement was also confusing and contrary to our general rule that, except for federal constitutional errors the Supreme Court has labeled “structural,” no error is categorically immune from a harm analysis. 1

I would reissue the opinion without the erroneous statement, and save appellate judges and practitioners the trouble of trying to figure out what we meant.

1 . Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997).