Garcia v. State , 1994 Tex. App. LEXIS 3157 ( 1994 )

FEDERICO G. HINOJOSA, Jr., Justice,

dissenting.

I respectfully dissent. I agree that the trial court erred by admitting the evidence of extraneous conduct to show intent; however, I disagree with the majority’s harm analysis. I cannot hold that the error was harmless beyond a reasonable doubt.

The majority correctly states the standard of review, as enunciated in Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989), we must apply in determining the harmfulness of an error in admitting evidence, yet misapplies the examination and neglects to calculate the probable impact of the error on the jury in light of the existence of the other evidence. The majority relies on the efficacy of the instructions given to the jury and the State’s “confined” closing argument to speculate that the jury placed little or no weight on the complained-of evidence. The majority concludes that the “strength” of the State’s ease, including Officer Hernandez’s identification, the matching description given by the complaining witnesses, and appellant’s detention shortly after the crime, amounts to “highly incriminating facts which greatly diminish the impact of error.” Without further evaluating the effect of the error, the majority essentially focuses on the weight of the other evidence of guilt rather than whether the error at issue might possibly have prejudiced the jurors’ decision-making.

On this evaluation of the evidence, I disagree. The State’s case rested on establishing the identity of the burglar and relied primarily on Sergeant Hernandez’s identification. Without stronger identification testimony from the complaining witnesses, the extraneous offense evidence was necessary to link appellant to the crime at the Wahl’s house. The prosecution clearly relied on the improper evidence when it made a more than passing reference to the extraneous offense in its final argument.

Applying the Hams standards to this case and concurrently recognizing that overwhelming evidence can be a factor to be considered, I do not conclude beyond a reasonable doubt that the erroneous introduction of the extraneous offense did not contribute to the appellant’s conviction. Because I cannot hold that the error was harmless beyond a reasonable doubt, I dissent from the majority’s opinion.