dissenting.
When Richard George came to Oliver Williams’ house, the only other person there was Bonnie Jalaane Ray. Ray left with George, and shortly afterward George was stopped by the police. George was the driver, and the contraband was found in George’s car located between the passenger seat and the center console, making it readily available to both George and Ray. The primary contested issue in the case was whether Ray had possession of the cocaine. Ray testified that she never exercised care, custody, or control of the container of cocaine. Therefore, evidence concerning the possession of the container of cocaine was vitally important.
After the State rested its case, Ray called Williams as her first witness. Williams began testifying that Ray was at his house on the day of this arrest and later George came over. He was then asked if he was familiar with George’s selling drugs. The State objected, and the jury was retired. Outside the presence of the jury, Ray’s counsel stated that Williams would testify that George was a known drug dealer, that Williams bought a rock of crack cocaine from George, and that George possessed the bottle containing cocaine that was in evidence. The State’s objections were as follows: “[F]irst of all, this is the first I’ve ever heard about this person ever being called to the stand. Secondly, ... if this jury’s to hear that he bought cocaine from Richard George or whatever, it leaves this jury with the impression, that well, Bonnie Ray must have never known about it....” Finally, the State objected “And I think this is a surprise.So I’m going to claim surprise here, Judge,.... ” The court then stated, “Go ahead and do your proffer outside the jury’s presence. I’m going to exclude the testimony.”
The excluded evidence was significant and relevant; unquestionably it should have been admitted. The State made no *227plausible objection. That the State was not aware of the witnesses the defendant intended to call does not constitute a reason to exclude. The State’s further objection (that such evidence might convince the jury that Ray did not know about the cocaine) demonstrated the relevancy of the evidence. After all, the issue for the jury’s determination was whether Ray possessed the cocaine. The trial court did not clarify the legal basis for excluding the testimony and stated it was excluded because “I don’t believe it’s admissible.”
Experience has shown that jurors are fully able to judge the credibility of witnesses. The trial is to be conducted by allowing advocates to present their case and cross-examine adverse witnesses within rules applicable to both sides. Our adversarial system works because evidence is subjected to rigorous testing and analysis before an impartial tribunal. It is the process of law that allows us to have confidence in the proceedings and determinations. Here that process was impeded.
The real question before this Court is whether the error is reversible.
I agree with the majority that, based on Potier v. State, 68 S.W.3d at 657 (Tex.Crim.App.2002), the error is not classified as a constitutional one, since the defendant was allowed to present a defense. However, I believe this error was significant and deprived the defendant of a witness who had personal knowledge of highly relevant testimony. The question is whether the error is to be disregarded. Tex.R.App. P. 44.2(b).
In making this determination, review of the entire record is proper, including the character of the error, how it is considered in light of other evidence, the defensive theories, closing arguments, and other matters. See Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App.2000). The relatively brief record contains testimony from the arresting officer, an officer establishing the chain of custody of evidence, a chemist, and an officer assigned to the drug enforcement unit. Ray tendered the testimony of Williams and her own testimony. The character of the alleged error has been explained — the exclusion of highly relevant testimony on the most important issue in the case without any plausible objection being presented. It is a serious error. The defense of the case was primarily that Ray did not possess the contraband. At the closing argument, counsel for Ray stated, “the issue is whether the State has proven beyond a reasonable doubt that she possessed this crack cocaine in Richard George’s car.” To determine that the exclusion of Williams’ testimony would not have an effect on the jury, one must conclude the jury would have disregarded and disbelieved his testimony. That should have been left for the jury to determine, not the court. After a review of the record, I do not have a fair assurance that the error did not influence the jury or had but slight effect, but instead find that the exclusion of the testimony had a substantial and injurious effect or influence in determining the jury’s verdict. I respectfully dissent.