Texas Rules of Appellate Procedure 44.2 Cases
Texas Rule of Appellate Procedure 44.2(b) provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." TEX. R. APP. P. 44.2(b).
In King v. State, 953 S.W.2d 266, 272 (Tex. Crim. App. 1997), the Court considered the erroneous admission of pen packets at the punishment phase of a capital murder trial.
In finding the error harmless under Rule 44.2(b), the Court considered all of the evidence of future dangerousness that had been admitted at both guilt/innocence and punishment. Id. at 272.
In Ladd v. State, 3 S.W.3d 547 (Tex. Crim. App. 1999) the Court found extraneous offense evidence to be properly admitted.
But even assuming that the admission of the evidence was error, we concluded that it was harmless under Rule 44.2(b) because, "given all of the evidence before the jury," it was unlikely that the admission of the evidence had a substantial effect on the jury's verdict. Id. at 568.
In Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000), the Court discussed at length the proper harm analysis under Rule 44.2(b) when a piece of evidence is erroneously excluded.
The Court stated that an "appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case."
The Court further stated that "when the claimed error is the exclusion of a relevant piece of evidence . . . conducting a meaningful harm analysis would necessarily require consideration of all evidence which was admitted at trial.
In short, the lower court should examine the record as a whole when conducting a harm analysis."