Full Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0574-25 HOUSTON SAMUEL HAMMONS, Appellant v. THE STATE OF TEXAS ON APPELLANT=S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS FANNIN COUNTY WALKER, J., delivered the opinion of the Court in which RICHARDSON, YEARY, NEWELL, MCCLURE, FINLEY, and PARKER, JJ., joined. SCHENCK, P.J., and KEEL, J., concurred. OPINION The Sixth Court of Appeals held that Appellant, Houston Samuel Hammon’s, argument contesting the admission of expert testimony was waived for failure to brief harm. Hammons v. State, No. 06-24-00216-CR, 2025 WL 1982842, at *3 (Tex. 2 App.—Texarkana July 17, 2025, pet. granted) (mem. op., not designated for publication). Today, we reverse and remand the decision of the court of appeals, and we clarify that a party does not waive an argument solely for the failure to brief harm. I — Facts Appellant was tried for assault against a family or household member by impeding breathing or circulation. Tex. Penal Code § 22.01(b–3). It was alleged that Appellant choked his girlfriend after the two had a dispute about finances. At trial, the State called Deputy Jon McCann to testify as an expert due to his specialized training in strangulation and family violence. He intended to testify about strangulation in assault cases generally, the ways a person’s breath or blood could be impeded, and the effects of impeding. Before Deputy McCann testified about the issue, Appellant’s counsel took him on voir dire and then objected to the testimony, arguing that Deputy McCann not be “qualified as a witness on this issue given that [counsel suspected he was] going to be giving opinions that have to do with medical issues.” The State responded that Deputy McCann, based on his training, would be able to give opinions about the differences between impeding and choking; how the external neck structures would be vulnerable to external pressures; and strangulation in general, including manual versus ligature strangulation and the symptoms 3 associated with both. The trial court overruled Appellant’s objection and allowed the testimony. Appellant was ultimately found guilty of the offense. Because of a prior conviction under the same statute, the offense was enhanced to a second-degree felony and Appellant was sentenced to twenty years imprisonment. See id.1 II — Procedural History Appellant appealed the admission of Deputy McCann’s testimony, arguing that the trial court improperly permitted “a deputy sheriff with no medical training to testify as an expert in the human neck’s anatomical structures, the physiological effects to those structures caused by strangulation, and that photographs of the victim’s injuries were consistent with strangulation.” The Sixth Court of Appeals affirmed the conviction and responded to Appellant’s argument by stating that it was waived. Hammons, 2025 WL 1982842, at *3. Declining to answer the question of error, the court of appeals explained: To assert an issue on appeal, an appellant’s “brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities.” An issue is inadequately briefed when an “appellant does not address the question of whether the alleged error . 1 In the same trial, Appellant was convicted of criminal mischief. See Tex. Penal Code § 28.03. For the criminal mischief conviction, he was sentenced to two years, to run concurrently with the family violence assault offense. 4 . . was harmless.” In such a circumstance, the appellant has “waived the issue” that he complains of on appeal. Because Hammons failed to brief the issue of harm, especially in light of the testimony heard by the jury before McCann's testimony, we find that Hammons waived his second issue on appeal, and we overrule it. Id. (internal citations omitted). Appellant now appeals the Sixth Court of Appeals’s decision, asking us to answer whether a point of error is waived on direct appeal if harm is not briefed. III — There is no requirement to brief Rule 44.2(b) harm. The alleged erroneous admission of expert evidence is generally non- constitutional error, and harm is reviewed under the substantial rights test. Tex. R. App. P. 44.2(b); see Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (assessing the erroneous admission of expert testimony as non-constitutional error). Errors that do not “affect substantial rights must be disregarded.” Tex. R. App. P. 44.2(b). A defendant’s substantial rights are affected if “the error 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. United States, 328 U.S. 750, 776 (1946)). Neither party has the burden to prove harm in a substantial rights inquiry. Thomas v. State, 505 S.W.3d 916, 926 (Tex. Crim. App. 2016). For decades, this has 5 meant that “no burden to show harm should be placed on the defendant who appeals.” Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). That being said, “an appellate court does indeed have a duty to review for harm.” Smith v. State, 726 S.W.3d 466, 474 (Tex. Crim. App. 2025); see also Becerra v. State, 685 S.W.3d 120, 139–40 (Tex. Crim. App. 2024) (noting that courts have a duty to review the record as a whole to determine if “the outcome of the proceeding was influenced by the error” and that burdens of persuasion are inappropriate in a harm analysis because review by the court is a “systemic requirement that ensures the reliability of the verdict”); Thomas, 505 S.W.3d at 926 (the reviewing court has the duty to assess harm “to determine the influence the error had in light of all the other evidence”); Johnson, 43 S.W.3d at 5 (“We hold that it is the responsibility of the appellate court to assess harm after reviewing the record and that the burden to demonstrate whether the appellant was harmed by a trial court error does not rest on the appellant or the State.”); Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001) (finding the State’s argument that the appellant had to prove harm “unavailing” because neither the State nor the appellant has the duty to show harm, and the reviewing court assesses harm in light of the record). To be sure, parties have a duty to adequately brief their points of error. Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the 6 contentions made, with appropriate citations to authorities and to the record.”). But that duty extends to arguments where the party has the burden of persuasion to show error. We have plainly said that the burdens of persuasion are “not appropriate” in harm analyses because it is a “systemic requirement” that the reviewing court examine the entire record to determine the impact of the alleged error. Becerra, 685 S.W.3d at 139–40. The court of appeals cited Cardenas v. State to support its holding that Appellant inadequately briefed his arguments. Hammons, 2025 WL 1982842, at *3.2 It is true that in Cardenas we noted that the appellant did not address harm. Cardenas, 30 S.W.3d at 393. But Cardenas’s brief was not inadequate simply because harm was not addressed. In disposing of two points of error for inadequate briefing, we also stated that “[n]one of the cases cited by appellant concern[ed]” his points of error. Id. Citing Smith, we determined that he “neglect[ed] to present argument and authorities as required.” Id. (citing Smith v. State, 907 S.W.2d 522, 532 (Tex. Crim. App. 1995)). Further, in Smith, we found several points of error were inadequately briefed where, even though authorities were cited and arguments were made, those 2 Specifically, the court of appeals said, “An issue is inadequately briefed when an ʻappellant does not address the question of whether the alleged error . . . was harmless.’ Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) . . . In such a circumstance, the appellant has ʻwaived the issue’ that he complains of on appeal.” Hammons, 2025 WL 1982842, at *3. 7 “arguments and authorities [were] different in character from the error alleged[.]” Smith, 907 S.W.2d at 532. Cardenas did not cite a case where we found briefing to be inadequate for failure to brief harm. Nor have we identified cases where inadequate briefing was found for failure to brief harm. We most often determine issues are inadequately briefed when parties fail to cite arguments or authorities supporting their position on error. See, e.g., Solis v. State, 726 S.W.3d 394, 410 (Tex. Crim. App. 2025) (finding inadequate briefing for failure to apply the law to the facts and for making conclusory statements); Hall v. State, 663 S.W.3d 15, 34–35 (Tex. Crim. App. 2021) (finding inadequate briefing for failing to cite supporting legal authority); Bohannan v. State, 546 S.W.3d 166, 179–80 (Tex. Crim. App. 2017) (finding inadequate briefing for making conclusory statements, no argument, and omitting appropriate citations); Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007) (finding inadequate briefing for failing to explain which constitutional right was violated). Thus, the answer to today’s question is simple—Appellant was not required to brief harm. And to dispel any future confusion, neither party has the duty to brief non-constitutional harm. 3 Harm analysis is a systemic requirement that the reviewing 3 That is not to say parties should never brief harm. As a practical point, they should. It is prudent appellate practice to advocate for one’s position to the reviewing court and explain why that 8 courts must conduct in light of the record. Id. at 139. Because the court of appeals here found that Appellant’s argument was inadequately briefed and waived because of his failure to address harm, that holding was error. IV — Conclusion Therefore, we reverse and remand to the Sixth Court of Appeals so that it may consider Appellant’s point of error consistently with this opinion. Delivered: November 12, 2026 Publish position should be adopted. But our strong suggestion to brief harm is not a requirement that results in waiver of the issue for failing to do so.