Richardson, Ex Parte Alan Lynn ( 2006 )

   IN THE COURT OF CRIMINAL APPEALS

                                   OF TEXAS

                                                                  NO. AP-74,824

                               EX PARTE ALAN LYNN RICHARDSON, Applicant

                          ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE No. 25177 FROM THE 13^th DISTRICT COURT

                                                           NAVARRO COUNTY

Johnson, J., filed a concurring opinion.

                                   C O N C U R R I N G   O P I N I O N

When faced with claims that assert harm from constitutional violations, this Court frequently cites its decision in Cain v. State, 947 S.W.2d 262 (Tex. Crim. App 1997), for the proposition that only errors that the United States Supreme Court has designated as Astructural@ are immune to harm analysis.^[1]  In my view, the term Astructural@ has become as magic word. Errors called Afundamental,@ Ainfecting the entire process,@ Abasic,@ and other synonyms for the meaning assigned by the Supreme Court to the word Astructural,@ are dismissed because the Supreme Court did not use the magic word to describe a particular error.  Such treatment elevates form over substance.  The proper analysis is to examine the effect of the alleged error on the trial process, just as the Supreme Court did in Fulminante. 

After listing specific errors that are not subject to harm analysis, the Court set out the basis for finding that the listed errors were Astructural@; AEach of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.@^[2] Fulminante at 310.  While Astructural@may be a useful shorthand for such an defect, it is illogical to assume that the four justices who were on the Court at the time of Fulminante, the five justices who have joined the Court since then, and all future judges will use that word as a term of art, continue to use it, or even use it again to describe such a defect in the trial process.  We should adopt as our standard for Adefects in the constitution of the trial mechanism, which defy analysis by >harmless-error= standards,@ the true standard of Fulminante: a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.

I concur only in the judgment of the Court.

Filed: September 13, 2006

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^[1] Arizona v. Fulminante, 499 U.S. 279 (1991).

^[2] "Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair."   Fulminante at 310, quoting Rose v. Clark, 478 U.S. 570, 577-78(1986)(citation omitted).