I join the opinion of the Court. If it is true that error is not preserved in a situation such as this, despite timely objection, because the inadmissible evidence was not admitted, then error is also, by analogy, not preserved, despite timely objection, when admissible evidence is not admitted. Under this logic, a trial court may rule incorrectly with impunity merely by refusing to admit the proffered evidence, whatever its nature. If the incorrect ruling significantly affects the ability of either party to present its case, surely we do not wish to shield that incorrect ruling from review. Surely we do not want to force an appellant to chose between calling the witness and having the inadmissible inflammatory evidence admitted, to his probable detriment, or not calling the only witness who can testify about a substantive issue or an issue of mitigation.

In the case at bar, appellant chose not to call the CPS worker to impeach the complainant on the narrow issue of use of weapons because of the trial court's ruling that to do so would allow the state to present the entire taped interview, regardless of its connection to the narrow scope of the proposed impeachment. There was no other witness who could give the needed testimony. The tape contained much comment on extraneous offenses of an inflammatory nature. Thus caught between a rock and hard place, appellant's ability to present his defense was impermissibly impaired. Neither state nor appellant should be required to plead its case under such strictures.

Johnson, J.

Delivered: September 10, 2003

En banc

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