I again respectfully dissent.
The Court of Criminal Appeals reversed the first majority opinion which held that the introduction of the extraneous offense was not error. In finding it to be error, the Court held that it was not only an abuse of discretion to allow the State to introduce evidence of Appellant's prior arson conviction, but that the error was compounded by the Court's refusal to let Appellant tell the *Page 29 jury his side of the story and thereby lessen the impact the extraneous offense would have had on the jury.
The majority opinion weighs the number of "pages" in the record which mention the extraneous offense, compares that number to the total number of pages, and then reaches the conclusion that the error was harmless beyond a reasonable doubt. The majority next looks at the facts Appellant wanted to offer to the jury to explain the circumstances of the arson charge. The majority then concludes that if the jury had heard the explanation, the appellant would have been in greater trouble than he was without the explanation. Weighing the harm in terms of pages, and stepping into the shoes of the jury to determine how they would have reacted to certain evidence if it had been presented to them, is certainly a novel approach. However, in order to affirm this conviction and overlook the error that is now found to exist, we must do more than weigh pages and guess at a jury's reaction to evidence it never received.
The majority seems to focus on whether they would have been swayed by this error — that is not the proper test. We must instead look at the integrity of the process, not to the other evidence of guilt, and we must determine if it waspossible that the jurors may have been prejudiced against this appellant as a result of the error committed by the trial court. See Wedlow v. State, 807 S.W.2d 847 (Tex.App. — Dallas) pet ref'd per curiam, 814 S.W.2d 750 (Tex.Crim.App. 1991). Also, whether the jury reached the correct result is not the proper test. The reviewing court must instead determine whether: the trial was essentially a fair trial; the error contributed to the jurors' decision making processes; and, declaring the error harmless would encourage the State to repeat it with impunity.Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989).
In the remand, the Court of Criminal Appeals held that the trial court not only erred in admitting the extraneous offense, but also erred in refusing to allow Appellant an opportunity toexplain the circumstances of the offense, and, held that if the explanation had been allowed, "the prejudicial effect of admitting the conviction would have been greatly lessened." I agree.
When we focus on the integrity of the process, rather than the evidence of guilt, it is not reasonable under these facts to find beyond a reasonable doubt that there is nopossibility that the error prejudiced the jurors' decision making processes. The only purpose the State could possibly have had in introducing evidence of the arson was to prejudice the jury against this appellant and to attack his character. The majority opinion acknowledges that the State called Appellant an "ex-convict" three times in argument. If the trial court had not erred, the State could not have called him an ex-con even once. Also, the majority acknowledges that the State asked four of Appellant's five witnesses about the arson conviction — asking even one was error. When the State continued to beat Appellant over the head with the "ex-con" stick, it is not unreasonable to believe that it "possibly" had an effect on the jury. If that "possibility" of harm exists, then Appellant is entitled to a new, clean, fair trial.
I would reverse the judgment of the trial court and remand for a new trial.