           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


           K ELLER, 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
                                                                 OLSEN CONCURRENCE — 2

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


       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
                                                                                       (continued...)
                                                                OLSEN CONCURRENCE — 3

       With these comments, I concur in the Court’s judgment.



Filed: April 25, 2012
Do Not Publish




(...continued)
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).
