State of Texas v. Aguilera, Angel ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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PD-0024-04

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THE STATE OF TEXAS

v.

ANGEL AGUILERA, Appellee

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ON DISCRETIONARY REVIEW FROM THE EIGHTH COURT OF APPEALS EL PASO COUNTY

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Womack, J., filed a concurring opinion.

As the dissenting opinion says, the trial court erred. What should we do next?

"Except for certain federal constitutional error labeled by the United States Supreme Court as 'structural,' no error, whether it relates to jurisdiction, voluntariness of a plea, or any other mandatory requirement, is categorically immune to a harmless error analysis." ⁽¹⁾ The applicable standard for the analysis is that of Rule of Appellate Procedure 44.2(b): "Any [non-constitutional] error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.' A substantial right is affected when the error had a substantial and injurious effect or influence in determining a verdict. ⁽²⁾

Without error, the trial court could have granted the appellant a new trial, received his plea of guilty, and assessed the same punishment. Therefore, it seems to me, the error did not affect a substantial right and must be disregarded.

I concur in the judgment of the Court.

En banc.

Delivered June 22, 2005.

Publish.

1. Cain v. State, 947 S.W.2d 262, 264 (Tex. Cr. App. 1997).

2.

See, e.g., King v. State, 953 S.W.2d 266, 271 (Tex. Cr. App. 1997).