“The Court of Appeals has so far departed from the accepted and usual course of judicial proceedings in finding that there was harm from the admission of State’s Exhibits 22 and 23 as to call for an exercise of the Court of Criminal Appeals’ power of supervision.”
At the punishment phase of Barnes’s burglary trial, the State introduced judgments showing Barnes had nine prior convictions. Most were felonies, one of which enhanced the offense to a first-degree. Most were out-of-state convictions from multiple states. After finding the enhancement true, the trial court assessed a forty-year sentence.
On appeal, Barnes argued the evidence was insufficient to link him to the judgments. On two misdemeanor convictions from Tennessee, the court of appeals agreed. It acknowledged the error might not seem harmful “[a]t first blush,” but noted that in assessing the sentence, the trial court referenced Barnes’s prior record and that “other states” had already given him a chance. Because these comments indicated the trial court considered the Tennessee judgments and that they may have had an effect, the court of appeals remanded for a new punishment hearing.
The State argues there is no substantial or injurious effect when the record is viewed as a whole. Barnes had multiple felony convictions (including a prior burglary), the burglary offense he was on trial for traumatized the victims and effectively destroyed their home, and Barnes was shown to be a member of a violent, white-supremacist gang. The State also contends that the trial court’s comments were more likely a reference to Barnes’s other out-of-state felony probation revocations than the Tennessee misdemeanors. It also points out that the trial court commented on the homeowner’s trauma in assessing sentence.