¶1dissenting.
¶2I respectfully dissent to the majority’s reversal of this capital murder case based on the trial court’s admission of victim impact evidence near the end of the guilt/innocence stage.
¶3During the guilt stage of the trial of Freddie Motilla, the State put the victim’s mother on the witness stand and engaged in direct examination of her for approximately four minutes, as follows:
¶4BY MS. CONNORS:
Q. Ma'am, could you please introduce yourself to the Jury?
A. Betty Joann Pampell.
Q. How old are you?
A. Fifty-five.
Q. And how many children do you have?
A. Four of my own.
Q. Did you adopt a child?
A. Yes, ma'am.
Q. And what was the name of your adopted child?
A. Ronnie Lee Fisk.
Q. Have you ever testified before?
A. No, ma'ani.
Q. Okay. You need to wait till I finish the question. Are you a little nervous?
A. Yes, ma'am.
Q. Just slow down, because she has to write down everything I say. And then you get to answer and she writes down everything you say. Okay? How old are your children?
A. Well, they range from thirty-eight to twenty-six.
Q. Do you have grandchildren?
A. Yes, ma'am.
Q. And Ronnie Fisk was what number? A. The last one.
Q. He was your baby; is that right?
A. Yes, ma'am.
Q. And how is it that you came to adopt Ronnie Fisk? How old?
MR. WHEELAN: your honor, may we approach?
THE COURT: Yes.
(At the bench:)
MR. WHEELAN: I’ll object under rules — I’ll object as irrelevant and more prejudicial than probative.
THE COURT: It’s overruled.
¶5BY MS. CONNORS:
Q. How old was Ronnie Fisk when you adopted him?
A. Thirteen months.
Q. When you adopted him, was he sick?
A. Yes, ma'am.
Q. And how was it that you came to learn that he was going to be needed to be adopted? Where were you when you heard this?
A. I lived in what they call the area of Cottage Grove.
Q. Did you work at Texas Children’s Hospital?
A. Yes, ma'am. I was a volunteer.
Q. And was Ronnie Fisk a patient at that time, at thirteen months?
A. Yes, ma'am.
*829Q. Wait one second. So at thirteen months, did you take him to your home?
A. Well, shortly thereafter.
Q. And at what age did you formally adopt him?
A. Three years old.
Q. Did he live with you — until when?
A. Till he turned eighteen.
Q. And how old was he when he was murdered?
A. Twenty.
Q. When was his birthday?
A. June the 4th.
Q. Of what year?
A. 1997 — I mean, ’76.
Q. When you adopted him, were you a single parent?
A. Yes, ma'am.
Q. You had been divorced; is that right?
A. Yes, ma'am.
Q. Do you work to support your five children?
A. Yes, ma'am.
¶6I agree with the majority’s conclusion that it was error for the trial court to admit this victim impact evidence at the guilt stage because it was irrelevant to any issue regarding the guilt or innocence of appellant.
¶7I. Harmless Error
¶8Texas Rule of Appellate Procedure 44.2(b) provides as follows:
(b) Other Errors. Any other error [other than a constitutional error], defect, irregularity, or variance that does not affect substantial rights must be disregarded.
¶9Here, because no constitutional error was involved when the trial court erroneously admitted the victim impact testimony, the proper inquiry is whether appellant’s substantial rights were violated. In essence, the inquiry is whether the error affected the judgment. The United States Supreme Court has held that courts should not try to put the question of whether a substantial right has been affected in terms of burden of proof. O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Rather, the question each judge should ask is “[d]o I, the judge, think that the error substantially influenced the jury’s decision?” Id.
¶10A substantial right is violated when the error made the subject of the appellant’s complaint had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. U.S., 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). If the error had no influence or only a slight influence on the verdict, it is harmless. However, if the reviewing court harbors “grave doubts” that an error did not affect the outcome, that court must treat the error as if it did. U.S. v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Thus, if the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harm*830ful, i.e., as having a substantial and injurious effect or influence in determining the jury’s verdict. O’Neal, 513 U.S. at 435, 115 S.Ct. 992.
¶11I must conclude in this case that the error’s effect on the jury, if any, was so slight that the error was harmless. Here, the jury heard testimony from one of the officers involved in the investigation of the crime about appellant’s statement regarding the murder. Specifically, appellant told the officer in a tape recorded statement that “he had robbed and killed a man in the parking lot.” A transcript of the tape recorded confession was given to the jury. This evidence has not been challenged by appellant on appeal. Moreover, the majority rejects appellant’s other contentions on appeal that the evidence was legally and factually insufficient to support a finding that appellant had the specific intent to kill the complainant. Thus, the majority has concluded that the State satisfactorily proved the elements of the crime of capital murder, and that after reviewing all the evidence, the verdict of guilty is not so against the great weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996) (establishing standard of review for factual sufficiency of the evidence in criminal cases). Nevertheless, despite the adequacy of this proof by the State, the majority has also implicitly reached another, contradictory, conclusion. This erroneous and contradictory conclusion is that the victim impact evidence somehow discouraged the jurors from considering evidence of appellant’s lack of murderous intent that is, given legal and factual sufficiency on that point, either non-existent or greatly outweighed by the evidence of appellant’s intent to kill.
¶12My conclusion that the victim impact evidence had a de minimis affect on the jury and was, therefore, harmless, is in accord with opinions from other Texas courts. In Irizarry v. State, appellant was convicted of murdering Derick Holguin. 916 S.W.2d 612, 614 (Tex.App.-San Antonio 1996, pet. ref'd). During the guilt phase, the prosecutor introduced testimony that when Dietrich Holguin, Derick’s brother, was told that Derick had been killed, Dietrich started crying. Id. at 616. Appellant contended on appeal that the trial court erred in admitting this irrelevant evidence, and the San Antonio Court agreed. Id.The court held, however, that the error was harmless because, among other reasons, the court concluded that the jury in all likelihood placed little or no weight on the testimony. Id.
¶13More recently, in Reeves v. State, the Waco Court, in a circumstantial evidence case, affirmed the conviction for murder even though the trial court erred in admitting irrelevant evidence. 969 S.W.2d 471, 491 (Tex.App.-Waco 1998, pet. ref'd). There, the trial court admitted testimony that suggested appellant’s four year old son knew where his mother’s grave was, which the Waco Court noted permitted the jury to become distracted by the idea that appellant took his son to watch his mother’s body being buried in some remote wooded area. Id. at 490. The court concluded that this evidence should not have been admitted because it tended to mislead the jury and confuse the issues. Id.Nevertheless, the Reeves court held that the evidence was of such character that it had no more than a slight influence on the jury. Id. at 491.
¶14Because the tenor of the erroneously admitted evidence here is neither inflama-tory nor misleading or confusing, it admission was harmless error.
¶15II. Intentional Murder
¶16One of the elements of capital murder under Penal Code section 19 .03(a)(2) is the intent of the actor. Specifically, that section provides that a murder becomes a capital offense when the murder is intentionally committed in the course of committing or attempting to commit robbery. See Tex. Pen.Code Ann. § 19.03(a)(2) (Vernon 1994). As is almost always the case, the actor’s intent must be established by *831circumstantial evidence. The evidence here of that intent is, however, quite clear, as chronicled by the majority. Appellant’s two arguments against the specific intent required for capital murder were rejected by the majority. One of appellant’s arguments negating intent rejected by the majority was that he shot the complainant in the arm, a non-vital area of the body. Rejection was proper based on the court’s holding in Adanandus v. State, 866 S.W.2d 210, 215 (Tex.Crim.App.1993), adverted to by the majority, that shooting the victim in the arm, causing the bullet to enter his chest, established the specific intent to kill.
¶17The second effort by appellant to negate the intent element of capital murder is his contention that he was drunk and didn’t know what he was doing when he shot the complainant. This too was rejected by the majority. That defense is so outrageous that the Legislature has specifically removed it from consideration in our criminal justice system. Section 8.04(a) of the Penal Code states that “[vjoluntary intoxication does not constitute a defense to the commission of crime.” Tex. Pen.Code Ann. § 8.04(a) (Vernon 1994). There is no suggestion in this case that appellant’s intoxication was anything other than voluntary.
¶18The evidence presented at trial here is sufficient to support every element of capital murder under 19.03(a)(2), and there is no evidence in the record upon which a jury could rationally find that appellant had the intent to rob, but not the intent to cause the death of the complainant. Thus, it is improper here to send this case to another jury to consider felony murder where no specific intent to kill is required because that jury will not have any cognizable evidence
¶19III. Conclusion
¶20The evidence here that the majority believes is of such magnitude that a reversal is required took approximately four minutes and was not of an inflamatory nature. Indeed, this testimony was to the effect that the witness had adopted the complainant at an early age. Although it was irrelevant, it did not mislead the jury as to any aspect of appellant’s conduct during the offense in the parking lot, nor did it confuse the issues. Moreover, it is quite likely that here, as in Irizarry, the jury placed little or no weight on the testimony of the complaint’s mother. There are certainly cases where irrelevant testimony is of such a character that the jury seizes upon it in reaching a verdict that they might not otherwise reach, but this is not one of those cases. Accordingly, I would affirm appellant’s conviction for capital murder.
¶21. Victim impact and character evidence are, however, admissible at the punishment stage of trial, subject to certain restrictions under Evidence Rule 403. Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App.1998).
¶22. I have reviewed appellant’s brief and cannot find this argument presented in connection with points three and four which are his evidentiary points of error. This raises the concern that this court is reversing based on contentions that were not presented on appeal.
¶23. While this record is devoid of evidence that appellant's only intent was to rob, appellant did not testify at the trial below. A new trial, however, pursuant to the majority's holding here, may include somewhat different evidence.
¶24. Indeed, while appellant obviously did not assert error regarding the helpful felony murder instruction, the writer is convinced that because there was no evidence that appellant only had the intent to rob, but not kill, it was error to submit that charge. See Adanandus, 866 S.W.2d at 231.