Francisco Molina v. State ( 2003 )

NO. 07-00-0029-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JANUARY 21, 2003

______________________________

FRANCISCO SANCHEZ MOLINA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE CRIMINAL DISTRICT COURT NO. 4 OF DALLAS COUNTY;

NO. F-9901481-SK; HONORABLE JOHN C. CREUZOT, JUDGE

_______________________________

Before JOHNSON, C.J., REAVIS, J. AND BOYD, S.J. ^{(footnote: 1)}

CONCURRING OPINION

I concur with the majority based on Rogers v. State , 551 S.W.2d 369 (Tex.Crim.App. 1977), and its progeny.  

The State asserts that a harm analysis pursuant to Tex. R. App. P. 44.2. should be applied to the alleged error by the trial court in failing to grant a new trial.   But for the rule explicated by Rogers , I would agree with the State.  

The Court of Criminal Appeals has stated that except for certain federal constitutional errors labeled by the United States Supreme Court as "structural," errors are not immune from harmless error analysis.   See Cain v. State , 947 S.W.2d 262, 264 (Tex.Crim.App. 1997).  As an intermediate court, however, we properly defer to the Court of Criminal Appeals to modify the standard by which we review the effect of “other evidence” received by the jury from that explicated by Rogers , should the Court of Criminal Appeals choose to do so.

Phil Johnson

Chief Justice

Do not publish.

FOOTNOTES

1:

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.