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IN THE
TENTH COURT OF APPEALS
 

No. 10-89-183-CR

     ROOSEVELT YOUNG,
                                                                                              Appellant
     v.

     THE STATE OF TEXAS,
                                                                                              Appellee
 

From the 54th District Court
McLennan County, Texas
Trial Court # 89-155-C
                                                                                                    

DISSENTING OPINION ON REMAND
                                                                                                    

      For the first time this court has utilized the concept of "overwhelming evidence" of guilt to
determine that an error did not harm the defendant.  
      Although Harris v. State appears to support the concept, the opinion itself warns against its
use:
In performing a harmless error analysis the easiest and consequently the most convenient
approach one could employ is to determine whether the correct result was achieved despite
the error [footnote omitted].  Or, notwithstanding the error, in light of all the admissible
evidence was the fact finder's determination of guilt clearly correct?  Stated another way, was
there overwhelming evidence of guilt that was not tarnished by the error?  This approach is
incorrect because the language of the rule focuses upon the error and not the remaining
evidence.  Thus, it logically follows that the inherent difficulty with such an evaluation is that
in applying only that standard the appellate court necessarily envisages what result it would
have reached as a trier of fact, thereby effectively substituting itself for the trial court or the
jury.

Harris v. State, 790 S.W.2d 568, 585 (Tex. Crim. App. 1989) (emphasis added).
      Later opinions of the Court of Criminal Appeals are instructive about the "overwhelming
evidence" concept.  In Higginbotham v. State, the Court elaborated on Harris and said:
In addition, the Court pointed out that standards for the determination of harmless error
such as the "overwhelming evidence of guilt" test and the "correct result" test have been
rejected by this Court.

Higginbotham v. State, 807 S.W.2d 732, 734 (Tex. Crim. App. 1991) (emphasis added).  And,
in Anderson v. State the Court said:
Tex.R.App.Proc. 81(b)(2) mandates that we reverse the judgment under review unless
we determine beyond a reasonable doubt that the error made no contribution to the conviction
or to the punishment.  In Harris v. State, 790 S.W.2d 568 (Tex.Cr.App. 1989), we
articulated a coherent standard for determining when an error is harmless.  We do not
determine harmlessness simply by examining whether there exists overwhelming evidence to
support the verdict of guilt, but rather calculate as much as is possible the probable impact of
the error on the jury in light of the existence of the other evidence.
. . .
It is the effect of the error and not the existence of overwhelming evidence or the lack
thereof that dictates our judgment.

Anderson v. State, 817 S.W.2d 69, 72-73 (Tex. Crim. App. 1991) (emphasis added). 
      Even if we were permitted to assess the "overwhelming evidence," I do not agree that we
could in this case.  The Court of Criminal Appeals has determined that the court "erred in denying
Young's request for and motion to produce `records [a prosecution witness] reviewed prior to her
testimony for purpose of impeachment.'"  See Young v. State, No. 268-91, slip op. at 3 (Tex.
Crim. App. May 6, 1992).  Because the records were not produced, we can only speculate about
what would have happened if counsel had been given access to them during the trial.  To
determine that the evidence of guilt was overwhelming, we must speculate that the records would
not have assisted counsel in cross-examining the witness and that they contained nothing that
would have supported Young's position.  To my mind, a determination beyond a reasonable doubt
that the error did not contribute to Young's conviction or punishment should not be based on
speculation.  Thus, I dissent.
 
                                                                                 BILL VANCE
                                                                                 Justice

Opinion delivered and filed October 30, 1992.
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