Harmful Error Analysis In Texas
Once an appellate court determines that trial court error implicates a substantial right, the reviewing court must consider whether the error adversely affected that right, assessing:
(1) the source of the error;
(2) the nature of the error;
(3) whether or to what extent it was emphasized by the State;
(4) the probable collateral consequences of the error;
(5) how much weight a juror would probably place on the error;
(6) whether declaring the error harmless would encourage the State to repeat it with impunity. Cooper v. State, 961 S.W.2d 222, 227 (Tex. App. - Houston [1st Dist.] 1997, pet. ref'd), (citing Harris v. State, 790 S.W.2d 568, 587 (Tex. Cr. App. 1989)).
In harmful error analysis, the appellate court must first decide whether error in a criminal case is constitutional. TEX. R. APP. P. 44.2; Brown v. State, 960 S.W.2d 265, 271 (Tex. App. - Corpus Christi 1997, no pet.).
If error is of constitutional magnitude, the appellate court must reverse unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. TEX. R. APP. 44.2(a).
Any other error that does not affect substantial rights must be disregarded. TEX. R. APP. 44.2(b).
Generally, a trial court's error in the exclusion of evidence is non-constitutional. King v. State, 953 S.W.2d 266, 271 (Tex. Cr. App. 1997).
However, the right to present witnesses to establish a defense is a fundamental element of due process. See Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019, 1023 (1967); Brazelton v. State, 947 S.W.2d 644, 650 (Tex. App. - Fort Worth 1997, no pet.).
The right to offer the testimony of witnesses is the right to present the defendant's own version of the facts so that the jury may decide the truth. Id.
Because the trial court's failure to admit evidence of Appellant's defense is constitutional error, we review that error under the more stringent standard of Rule 44.2(a).
Rule 44.2(a) requires an appellate court to reverse the trial court's judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. TEX. R. APP. P. 44.2(b).