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Click here for the full text of this decision FACTS:The appellant was convicted of possession of a controlled substance with intent to deliver. Punishment was assessed at imprisonment for 20 years and a $2,000 fine. The appellant complained to the court of appeals that the trial court erred in excluding testimony that the drugs recovered belonged to someone else and that the exclusion of that evidence was harmful. With one justice dissenting, the court of appeals held that the trial court erred in excluding the evidence but also held that appellant was not harmed by the error. HOLDING:The court reverses the judgment of the court of appeals and remands the cause to the trial court for further proceedings. The court of appeals concluded correctly that Williams’ testimony should have been admitted because it had a tendency to make the existence of a fact of consequence more or less probable than it would have been without the evidence. The court of appeals then considered whether appellant was harmed, first by applying and rejecting a constitutional error standard under Texas Rule of Appellate Procedure 42.2(a), and then by applying a nonconstitutional error standard under 44.2(b). Because appellant was permitted to testify about her defensive theory, the court cannot say that the exclusion of Williams’ testimony effectively prevented her from presenting her defense. The court concludes that the court of appeals did not err in declining to apply a constitutional harm analysis under Rule 44.2(a). The court does not have fair assurance that the exclusion of Williams’s testimony did not influence the jury or had but a slight effect. A review of the record as a whole reveals that the question of possession was not only the most important issue in the case, it was the only contested issue in the case. Appellant was prejudiced because she was precluded from presenting third-party witness testimony which would have corroborated and given independent credibility to the defense she sought to establish. Because appellant’s only argument was that she did not possess the drugs, and the state’s case rested on a contrary argument, the erroneous exclusion of testimony that tended to establish possession in another was a serious error. The court of appeals’ majority opinion reasons that the error was harmless because Williams’ testimony “would not have added significantly to Ray’s defense.” However, this was an issue for the jury to decide not the court of appeals. As the jury did not have the benefit of the third-party testimony upon the most critical element the state had the burden to prove, the court cannot say with fair assurance that the error did not influence the jury or had but a slight effect. OPINION:Holcomb, J., delivered the opinion of the court, in which Meyers, Price, Womack, and Cochran, JJ., joined. Hervey, J., filed a concurring opinion, in which Johnson, Keasler, and Cochran, JJ., joined. Keller, P.J., filed a dissenting opinion. CONCURRENCE:Hervey, J., filed a concurring opinion in which Johnson, Keasler, and Cochran, JJ., joined. “In this case, the trial court excluded testimony of Williams (also known as”Big O’) that was relevant to appellant’s defense that George (the driver) exclusively possessed the Tylenol bottle found on appellant’s side of the car. This Tylenol bottle contained the drugs (rocks of crack cocaine) that appellant was accused of possessing with the intent to deliver. “The Court of Appeals decided that the error in excluding the testimony was harmless because it would not have added significantly to appellant’s defense. See Ray v. State, 148 S.W.3d 218, 225 (Tex.App. – Texarkana 2004). The majority disagrees and suggests that only a jury could decide whether Big O’s excluded testimony would have added significantly to appellant’s defense. See Ray v. State, S.W.3d slip op. at 5 (Tex.Cr.App. No. PD-1827-04, delivered this date) (whether Big O’s testimony would have added significantly to appellant’s defense was an issue for the jury to decide). This abrogates well-established case-law on how appellate courts should apply the Tex.R.App.Proc. 44.2(b) harm analysis for non-constitutional error and could result in the reversal of many criminal cases for clearly harmless errors.”

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