
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Do not publish.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.


