










IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,175


CHRISTIAN OLSEN, Appellant

v.

THE STATE OF TEXAS



ON DIRECT APPEAL FROM CAUSE NO. 07-04601-CRF-361 
IN THE 361ST DISTRICT COURT
BRAZOS COUNTY


Keller, P.J., filed a concurring opinion. 



	Issues fifteen and sixteen involve a trial judge's erroneous application of a rule of evidence
to exclude relevant testimony.  The erroneous application of a rule of evidence is normally
considered non-constitutional error, subject to a harm analysis under Texas Rule of Appellate
Procedure 44.2(b).  In this case, however, I believe it is appropriate to employ a constitutional harm
analysis under Rule 44.2(a).  I write separately to explain why this is so.
	The trial judge believed that Dr. Vandiver lacked the proper qualifications, and so he
excluded her testimony.  If the trial judge had been correct, exclusion of the evidence would have
been proper under Texas Rule of Evidence 702.  Dr. Vandiver was qualified, though, so excluding
her testimony was error under Rule 702.  
	Not every violation of a state evidentiary rule that results in the exclusion of relevant
evidence constitutes a constitutional violation. (1)  In non-capital cases, the standard for determining
whether the exclusion of such evidence constitutes a constitutional violation is whether "the
evidence forms such a vital portion of the case that exclusion effectively precludes the defendant
from presenting a defense." (2)  But the Eighth Amendment requires that the sentencer in a death-penalty case be permitted to consider any factor relating to the character of the defendant or the
circumstances of the crime that would mitigate against the imposition of a death sentence. (3)  And
under the Eighth Amendment, the threshold for relevance of such evidence is low. (4)  Because of
Eighth Amendment considerations, then, a constitutional harm analysis must apply to the erroneous
exclusion of relevant mitigating evidence that a defendant seeks to offer at the punishment phase of
a death-penalty case. (5)
	With these comments, I concur in the Court's judgment.

Filed: April 25, 2012
Do Not Publish
1.   Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002).
2.   Id. at 665.
3.   Penry v. Lynaugh, 492 U.S. 302, 318-19 (1989); Eddings v. Oklahoma, 455 U.S. 104,
110-12 (1982). 
4.   Tennard v. Dretke, 542 U.S. 274, 285 (2004).
5.   The key assumption is that the evidence was in fact admissible under state rules of evidence
but was erroneously excluded.  The situation would be different if the evidence was in fact
inadmissible under a state rule of evidence.  See Williams v. State, 273 S.W.3d 200, 232-33 (Tex.
Crim. App. 2008) (assuming, without deciding, that constitutional principles in Potier apply at the
punishment phase of a capital murder trial, concluding that the trial court did not err in excluding
evidence under the rule against hearsay, and concluding that admission of evidence was not
constitutionally required because it was not vital to the defendant's defense).
