Janet Lea Ball v. The State of Texas--Appeal from 249th District Court of Johnson County

DENIED

MAY 17, 1990

NO. 10-88-125-CR

Trial Court

# 25840

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JANET LEA BALL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 249th Judicial District Court

Johnson County, Texas

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OPINION ON MOTION FOR REHEARING

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Appellant's Motion for Rehearing faults our opinion in this case for an improper statement and application of the "harmless error" rule. See TEX. R. APP. PROC. 81(b)(2). That rule provides:

(2) Criminal Cases. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

Specifically, Appellant asserts that we reversed the burden imposed upon the State when we held:

We believe this is a situation where the case against Ball was otherwise "so overwhelming" that the constitutional error, if any, did not beyond a reasonable doubt contribute to the conviction. Cf. Milton v. Wainwright, 407 U.S. 371, 92 S. Ct. 2174 (1972).

Opinion at page 8.

While the immediately foregoing language was lifted virtually verbatim from Macon v. Yeager, 476 F.2d 613, 616 (3d Cir. 1973), it is possible to infer from it that this court will not reverse unless it can be shown beyond a reasonable doubt that the error contributed to the verdict. That is not, of course, the law. This court applied the correct standard of review for harmless error as set out in Rule 81(b)(2) even if it restated the standard inartfully. The language quoted from our original opinion would more accurately read:

We believe this is a situation where the case against Ball was otherwise "so overwhelming" that the constitutional error, if any, beyond a reasonable doubt did not contribute to the conviction.

The cases Appellant cites to us in her Motion for Rehearing are all distinguishable from this one where Appellant was not in custody at the time she asserted her right to silence and to counsel, was not under arrest and had not been arrested. The constitutional error, if any, in allowing the Child Protective Services caseworker to relate to the jury Appellant's post-Miranda but pre-arrest refusal to talk to the caseworker outside the presence of her attorney was harmless under Rule 81(b)(2) in view of the context in which it was related, its non-use by the prosecutor in argument, and the overwhelming evidence of Appellant's guilt at trial.

Appellant's Motion for Rehearing is denied.

TERRY R. MEANS

DO NOT PUBLISHJustice