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Thornton v. State7/20/1999
ked were true. The only difference between Watley's testimony after being recalled by appellant and his initial testimony on cross-examination was that he admitted he possibly failed to mention appellant denied driving the cab, if that's what the record showed. The testimony was nothing more than another admission that Watley did not remember whether he testified at the administrative hearing that appellant denied driving the cab. After all of his testimony, Watley's answers did not enlighten the jury on what he testified to at the administrative hearing. The only way the jury could ascertain whether Watley had made a prior inconsistent statement was to listen to the tape recording. Appellant attempted to provide the tape recording for the jury, but the trial court denied his tender. We conclude that the trial court abused its discretion in denying appellant's tender of the tape recording."
Having found the trial court erred, we must next determine whether the error was harmful. We look to rule of appellate procedure 44.2 to determine if a reversal is mandated. See Tex. R. App. P. 44.2. If the error is constitutional, we apply rule 44.2(a), otherwise we apply rule 44.2(b). Complaints of erroneous evidentiary rulings are not constitutional and, therefore, are reviewed under the substantial rights standard set out in 44.2(b). See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Hinds v. State, 970 S.W.2d 33, 35 (Tex. App.--Dallas 1998, no pet.).
Under rule 44.2(b), we disregard any non-constitutional error that does not affect the defendant's substantial rights. Hinds, 970 S.W.2d at 35. A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A defendant's substantial rights are not affected unless there is a reasonable possibility that the error "might have contributed" to his conviction. Hinds, 970 S.W.2d at 35 (citing United States v. Brown, 897 F.2d 162, 163 (5th Cir. 1990)). We disregard as harmless those errors that do not influence, or have only a very slight effect on, the jury. Id.
In appellant's case, the record reflects evidence from sources other than Watley that appellant was driving the cab. Reynolds also testified that appellant was driving the cab. Therefore, Watley's testimony that appellant admitted driving the cab is not critical to the State's case. And, even though the tape recording was not admitted, appellant's thorough examination showed that, in all probability, Watley had previously testified at the administrative license suspension hearing that appellant did not deny driving the cab. If in fact the tape had been introduced and it had convinced the jury to disregard all of Watley's testimony, the jury still could have found appellant was driving the cab based on Reynolds's testimony. Thus, we conclude the error in failing to admit the tape had little or no effect on the jury's verdict.
It can be said with assurance that there was no reasonable possibility that the failure to admit the tape into evidence "might have contributed to the finding of guilt." Thus, after reviewing the record as a whole, we conclude the failure to admit the tape did not influence, or had only a very slight influence on, the finding of guilt. See Hinds, 970 S.W.2d at 35. Accordingly, we conclude the error was harmless. See Tex. R. App. P. 44.2(b). We overrule appellant's sole point of error.
We affirm the trial court's judgment.
H. BRYAN POFF, JR.
JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
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