The trial court could not have erred in admitting this evidence because the evidence was never admitted. In its brief on discretionary review, the State cites Jackson v. State ⁽¹⁾ for the proposition that error was not preserved because the complained of evidence was never admitted. The State is correct. In Jackson, the defendant requested that he be allowed to testify at the punishment phase of trial without being impeached on cross-examination with prior extraneous offenses. ⁽²⁾ The trial court denied his request to limit the State's ability to impeach in the event he testified. ⁽³⁾ Relying upon Luce v. United States, ⁽⁴⁾ we held that error was not preserved because the defendant did not in fact testify (and thus, was not impeached with extraneous offenses). ⁽⁵⁾ In Luce, the defendant complained about the trial court's refusal to foreclose impeachment with prior convictions in the event the defendant testified. ⁽⁶⁾ In declining to review the alleged error, the United States Supreme Court observed that reviewing the trial court's ruling was fraught with difficulty, requiring speculation about:

(1) the precise nature of the defendant's testimony, (2) whether the trial court's ruling would have remained the same or would have changed as the case unfolded, (3) whether the government would have sought to impeach the defendant with the prior conviction, (4) whether the accused would have testified in any event, and (5) whether any resulting error in permitting impeachment would have been harmless. ⁽⁷⁾

This case is similar to Jackson and Luce. As in those cases, the defendant declined to introduce favorable testimony after the trial court indicated that the testimony would open the door to unfavorable evidence (involving the defendant's extraneous offenses). And, as in those cases, the unfavorable evidence was never admitted. Because the defendant did not introduce Stephenson's testimony, and as a result, the child's videotaped statement was never admitted, appellant has failed to preserve error for appellate review.

It is true that the State did not raise this particular preservation argument before the Court of Appeals although it raised a related preservation claim that the was rejected. ⁽⁸⁾ And it is also true that the State did not file a cross-petition. Nevertheless, preservation of error is a systemic issue that a first-level appellate court ought to raise on its own motion and one that a discretionary review court may choose to address if warranted by the circumstances. ⁽⁹⁾ There is no escaping that the Court's opinion holds to be inadmissible evidence that was never admitted - making this opinion advisory in nature. And, the procedural posture of the case renders problematic any attempts to review the merits or to conduct a harm analysis. We should either dismiss the petition as improvidently granted or hand down an opinion holding that error was not preserved. Because the Court does neither, I respectfully dissent.

KELLER, Presiding Judge

Date filed: September 10, 2003

Publish

1. 992 S.W.2d 469 (Tex. Crim. App. 1999).

2. Id. at 479.

3. Id.

4. 469 U.S. 38 (1984).

5. Jackson, 992 S.W.2d at 479.

6. Jackson, 992 S.W.2d at 479 (citing Luce, 469 U.S. at 39-40).

7. Id. (citing Luce, 469 U.S. at 41-42).

8. The State claimed the trial court had not issued an adverse ruling because it issued a favorable ruling with regard to whether Stephenson could testify and issued no ruling on whether the videotape was admissible.

9. Jones v. State, 942 S.W.2d 1, 2 n. 1 (Tex. Crim. App. 1997).