Lester v. State ( 1994 )

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the majority members of the panel, I respectfully file my dissent.

Under Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992) the trial court erred in allowing the state to introduce evidence of an unadjudieated extraneous offense over appellant’s objections. I disagree with the majority in that I would hold that this error was harmful. I would reverse and remand for a new punishment hearing.

When we find error in the proceedings of the court below, the error is reversible unless we determine “beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Harris v. State, 790 S.W.2d 568, 584 (Tex.Crim.App.1989). The evidence of the extraneous offense admitted in this case implicated appellant in an offense very similar in detail to the offense for which he was convicted. In light of its highly prejudicial nature, I cannot say beyond a reasonable doubt that the admission of the evidence by the trial court did not contribute to the punishment of appellant.

I would remand the case to the trial court for a new punishment hearing. Tex.Code CRIM.Proc.Ann. art. 44.29(b) (Vernon 1994 Supp.). I would sustain appellant’s point of error.