## IN THE COURT O F CRIMINAL APPEALS OF TE XAS

N O . A P - 7 6 , 1 7 5

C H R I S T I A N O L S E N , A p p e l l a n t

v . T H E S T A T E O F T E X A S O N D I R E C T A P P E A L F R O M C A U S E N O . 0 7 - 0 4 6 0 1 - C R F - 3 6 1

I N T H E 3 6 1 S T D I S T R I C T C O U R T B R A Z O S C O U N T Y

K E L L E R , P . J . , f

i l e d a c o n c u r r i n g o p i n i o n .
I ssues fiftee n and six teen involve a trial judge ’s err oneous application of a rule of evidenc e to exclude rele vant testimony

. The err oneous application of a ru l e of evidenc e is normally

co n sidered non-constitutional err or, subject to a harm analy sis under Texas Rule of Ap p el l at e Procedur e 44.2(b). I n this case , howeve r, I believe it is appropr iate to employ a constitutional harm analy sis under Rule 44.2(a ). I write sepa

rate ly to expl ain why

this is s o. The trial j udg e believed that Dr. Vandiver lacke d the proper qualifica tions, and so heOLS EN CONCURR ENCE — 2

excluded her testimony

. I f t he trial judg e had been corre ct, ex clusion of t he evidence would have been proper under Texas Rule of Evidence 702. Dr. Vandiver was qualified, though, so excluding her te stimony

was e rror under Rule 702. No t ever y violation of a state evidentiar y rule that results in the exclusion of relev an t evidenc e constitutes a constitutional violation. I n non-ca pital case s, the standard for deter mining 1 wh et h er the exclusion of such evidenc e constitutes a constitutional violation is whether “t h e evidenc e forms such a vital portion of the case that exclusion eff ectively prec ludes th e d ef en d an t from prese nting a defe nse.” But the Eig hth Amendment require s t h at t h e s entencer in a death- 2 penalty case be permitted to consider any fac tor rela ting to the charac t er of the defe ndant or the circ umstances of the crime that would mitigate ag ainst the imposit ion of a death sent en ce . And 3 under the Eig hth Amendment, the threshold for rele vance of s u ch evidenc e is low. Be cause of 4 Eig hth Amendment considera tions, then, a constitutional harm analy sis must apply to the err oneous exclusion of rele vant mitigating evidenc e that a defe ndant seeks to offe r at the punishment phase of a death-pena lty

case . 5

Potier v. State , 68 S.W .3d 657, 663 (Tex. Crim. App. 2002). 1 Id. at 665. 2 Penry v . Lynaugh , 492 U.S. 302, 318-19 (1989); Eddings v. Oklahoma , 455 U.S. 104, 3 110-12 (1982)

. Tennard v. Dretk

e , 542 U.S. 274, 285 (2004). 4 The key assumption is that the evidenc e was in fac t admissible under state rules of evidenc e 5 but was er ro n eo u s l y excluded. The situation would be differ ent if the evidenc e was in fac t inadmissible under a state rule of evidence. See W illiams v. Stat e , 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 t h e trial court did not err in excluding (continued...)OLS EN CONCURR ENCE — 3

Wit h these c omments, I concur in the Court’s judgme nt.

Filed: Apr il 25, 2012 Do Not Publish

(...continued) evidenc e under the rule ag ainst hear say , and concluding that admissio n o f ev i d en ce was not constitutionally

require d beca

use it was not vital to the defe ndant’s def ense)

.