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Click here for the full text of this decision FACTS:Police charged Calvin Ervin McNac with the first-degree felony of aggravated sexual assault of a child, 16-year-old M.B. M.B. testified that Calvin sexually assaulted her. She also testified that Calvin had a gun and threatened to harm her if she told anyone. Some evidence indicated that M.B. may have lied about the guns and the threats. Calvin testified and denied having sex with M.B., despite DNA evidence to the contrary. During cross-examination, Calvin admitted that he had been arrested for an April 2003 assault of his wife. Calvin, however, denied committing this offense. The jury convicted Calvin of the lesser second-degree felony of sexual assault of a child. The record from the punishment phase reflects that the state presented evidence of the details of Calvin’s April 2003 alleged assault of his wife Tonia, who did not testify at Calvin’s trial. Over Calvin’s confrontation clause objections under the U.S. Supreme Court’s 2004 decision in Crawford v. Washington, the state presented, through the testimony of a security guard and a Dallas police officer, out-of-court statements that Tonia made to them about this 2003 assault. The state emphasized Calvin’s 2003 assault of Tonia in support of its jury argument that Calvin was a “wife beater” and general abuser of women. The jury sentenced Calvin to the maximum sentence of 20 years of confinement and a fine of $10,000. Calvin claimed on direct appeal that the admission of Tonia’s out-of-court statements to a security guard and police officer violated his confrontation clause rights under Crawford. The 5th Court of Appeals decided that Tonia’s out-of-court statement to the security guard that “the man who pushed her out of the car was her husband” was not “testimonial” and therefore was admissible. The 5th Court then decided that any constitutional error in admitting Tonia’s out-of-court statements to the police officer was harmless beyond a reasonable doubt because the other “evidence overwhelmingly showed appellant’s guilt.” HOLDING:Affirmed. The Court of Criminal Appeals (CCA) granted discretionary review on two grounds: 1. whether the 5th Court erred in failing and refusing to consider the effect of the assumed Crawford error on the maximum 20-year sentence assessed in the case, even though the evidence the court assumed was erroneously admitted was admitted in the punishment phase of trial; and 2. whether the 5th Court misconstrued Texas Rule of Appellate Procedure 44.2(a) when it analyzed error in admission of punishment evidence by considering only whether the evidence at trial overwhelmingly proved McNac’s guilt. The trial court admitted the disputed evidence, the CCA stated, only during the punishment phase and not during the guilt phase of the trial. Therefore, the court stated, any Crawford error that occurred did not affect the outcome of the guilt phase of the trial. McNac, the CCA stated, did not challenge the 5th Court’s decision that the trial court properly admitted Tonia’s out-of-court statement to the security guard that the man who pushed her out of the moving car was her husband. A proper harm analysis, the CCA reasoned, would take into account this unchallenged evidence that shows that McNac pushed Tonia out of a moving car and then drove away. This unchallenged evidence, the CCA stated, is essentially cumulative of Tonia’s out-of-court statements to the police officer. The state, the CCA noted, also presented the testimony of Tonia’s father, Dwayne Carter, who described McNac’s violence toward himself and Tonia. The admission of this unchallenged evidence, the CCA stated, further reduced the likelihood that any error in admitting Tonia’s out-of-court statements “materially affected the jury’s deliberations.” Under these circumstances, the CCA determined beyond a reasonable doubt that any error in admitting Tonia’s out-of-court statements to the police officer was harmless. OPINION:Hervey, J., delivered the opinion of the court in which, Keller, P.J., Meyers, Price, Johnson, Keasler, Holcomb and Cochran, J.J., joined. DISSENT:Womack, J., filed a dissenting opinion. “I agree that the Court of Appeals’ opinion contained some incorrect language on harmless error, as the Court’s opinion says in its first six pages. I do not agree that it is”in the interest of judicial economy’ . . . for this Court also to do the harm analysis.”

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