I agree with the majority's bottom line, but I disagree with how it arrives there. I believe that the trial court erred by admitting evidence of the existence of cocaine metabolite in the appellant's blood because it was not shown to be relevant. I conclude that the appellant was not harmed by its admission, however.

The evidence of the cocaine metabolite was not relevant even though the indictment alleged, among other means, that the appellant was reckless "by driving a motor vehicle without sufficient sleep or by the consumption of a controlled substance," which caused his truck to collide with another vehicle. The evidence was not relevant because there was no indication when the appellant consumed the cocaine that was metabolized into benzoylecgonine and discovered in the blood test taken at the hospital. The State's evidence was that this metabolite indicated that, some time before the blood test was taken, the appellant had consumed cocaine. But just because he had consumed cocaine at some time before the blood was drawn, does not establish that he was under the influence of cocaine when the collision occurred.

I do not believe that the Court of Appeals confused sufficiency with admissibility. For the evidence to be more probative than prejudicial, the evidence must first be relevant to some fact of consequence in the trial. For the presence of the cocaine metabolite to be relevant, it must be shown that the appellant was under the influence at the time of the collision. Otherwise it is like showing that the appellant had consumed cocaine the day before the collision to prove that he was under the influence when the collision occurred. That evidence would not be admissible in this case to prove the fact of consequence that the appellant was under the influence of cocaine at the time of the collision. Without some way to connect the metabolite to the appellant's being under the influence at the time of the collision, the evidence was not relevant, and thus, the probative value could not have outweighed the danger of unfair prejudice, which even the trial court acknowledged was a problem.

I agree with the Court of Appeals that the trial court erred in admitting the evidence. That said, I believe that the Court of Appeals erred in concluding that the appellant was harmed by the trial court's error. This is nonconstitutional error, and under Texas Rule of Appellate Procedure 44.2(b), reviewing courts should disregard any error that did not affect the appellant's substantial rights. We have interpreted this to mean that the conviction should not be reversed when, after examining the record as a whole, the reviewing court has a fair assurance that the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The evidence at trial that supported conviction of manslaughter by other means charged in the indictment was overwhelming. The alternative means to show recklessness included that the appellant failed to control his vehicle, that he failed to keep a proper lookout for another vehicle, and that he drove without sufficient sleep. The evidence at trial showed that, after passing clearly visible warning signs, the appellant never applied the brakes, slowed down, or swerved as he approached the stopped vehicle in which the victim was riding. The drivers of the cars behind the appellant's truck were able to stop in time and testified that they could see the line of cars stopped ahead on the highway. The State provided evidence that there was nothing mechanically wrong with the brakes on the appellant's truck. The appellant fell asleep on the way to the hospital and while he was there.

After a review of this record, a reviewing court could easily conclude that there is a fair assurance that the testimony about the cocaine metabolite did not influence the jury or had but a slight effect. I would reverse the Court of Appeals on the harm analysis question. As a result, I concur in the Court's judgment.

Filed: September 10, 2003.

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