The opinion
O’CONNOR, Justice,
dissenting.
I dissent. The majority found the trial court did not err by refusing to issue an attachment for a witness who was under subpoena but did not appear.
Caudrell, the witness, appeared at trial, ready to testify. The trial judge, on his own initiative, took the witness aside, out of the presence of the jury, and asked him if he wanted to talk to somebody — his mother or a lawyer — before testifying. The witness took the hint, and said he did. The next day, the witness did not appear.
The appellant, through counsel, asked the trial court to issue an attachment, which the trial judge refused. There is no question that the appellant was entitled to the attachment. Tex.Code CrimP. art. 24.12 states in part:
When a witness who ... has been duly served with a subpoena to appear and testify in any criminal action or proceeding fails to so appear ... the defendant shall be entitled to have an attachment issued forthwith for such witness.
The only issue here is whether the trial court’s refusal to issue an attachment was reversible error. In Erwin v. State, 729 S.W.2d 709, 714 (Tex.Crim.App.1987), the Court of Criminal Appeals outlined the requirements to prove reversible error when a witness under subpoena does not appear at trial:
1. The party requested the attachment, which the trial court denied.
2. The party showed on the record what testimony the witness would have provided.
3. The testimony of the witness would have been relevant and material.
When a party proves all three prongs, the trial court’s judgment should be reversed “unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Id. at 714 .
The majority finds that the appellant met the first, second, and part of the third prong. The only matter the majority finds that the appellant did not prove was that the testimony was material. Missing evidence is material when it would have created a reasonable doubt about the defendant’s guilt. See Butler v. State, 736 S.W.2d 668, 671 (Tex.Crim.App.1987).
The appellant’s counsel dictated a bill of exception about the expected testimony:
What James Caudrell would testify to is that he had — he received a motor vehicle, the one in question in this case from a Mike. This Mike he never indicated was Michael Hollins, and he would testify to that effect. When Michael Hollins was picked up, James Caudrell approached the officers and told them, he will testify that he told them this is not the Michael that I was referring to. I believe James Caud-rell would also have information regarding his knowing where the vehicle was, people who drove in it, and possibly more information as to who, in fact, this Michael was that he says he got a vehicle from. That’s it.
In a second bill of exception, counsel added:
If James Caudrell had been present it is possible that defense counsel would have been able to elicit certain testimony, that testimony being how Michael Hollins was *931 in the vehicle and for what limited purpose he was, the extent of their friendship, the extent of that it was as the witnesses have testified, a hi-bye type relationship, that they did not hang out together or play basketball together. James Caudrell’s testimony would corroborate the fact that the names Shaun, Jason, Cliff, Michael Hollins and other names, others mentioned prior in the record, that they do hang out and play basketball. I believe that certain testimony that was ruled hearsay is, in fact, admissible based on the fact that it is against party interests and it is not being asserted for the — not trying to prove the truth of the matter asserted, that Michael Hollins did the crime, but for other reasons. Had this other testimony been elicited from James Caudrell and the other witnesses, that [sic] it would have been possible that defense counsel would not have been required to call Michael Hollins to the stand.
The appellant and the State agree that the disputed conduct is whether Caudrell got the car from the appellant or from some other person named Michael. The State argues that Caudrell’s statement tends to prove only that, at some point after the robbery, Caud-rell got the car from someone other than the appellant, which does not make it less likely that the appellant robbed Xydis and had control of her car at the time of the robbery.
The appellant and the State agree that to determine materiality, the omission must be considered in the context of the entire record, and error lies only if the omitted testimony creates a reasonable doubt that did not otherwise exist. See Stone v. State, 583 S.W.2d 410, 415 (Tex.Crim.App.1979).
The majority holds that Caudrell’s anticipated testimony was cumulative because the jury heard Routt and Ybarra’s testimony that suggested Caudrell received the car from someone other than the appellant. I disagree with the majority’s analysis for two reasons. First, the testimony from Routt and Ybarra, which merely “suggested” Caud-rell received the car from another person named Michael, is not cumulative of direct testimony from Caudrell that he got the car from someone else. Second, Caudrell’s direct testimony is not cumulative of the hearsay testimony from Routt and Ybarra. Routt and Ybarra testified to what Caudrell told them; their hearsay testimony about what Caudrell told them can hardly render Caudrell’s testimony cumulative. His statement was the source of their information.
The majority contrasts the missing testimony with the testimony of Xydis, who identified the appellant out of two photo spreads and from a lineup as the person who robbed her at gunpoint and stole her ear. The majority’s point is that the jury could have easily believed Xydis, no matter what evidence Caudrell contributed. The majority’s point strengthens the appellant’s argument that Caudrell’s testimony was material. Xy-dis’ testimony made Caudrell’s testimony more material, not less.
I would hold that the appellant met the materiality part of the third prong in Erwin . Caudrell’s testimony, as recounted by on the bill of exceptions, could have created a reasonable doubt in the minds of the jurors about the defendant’s guilt.
If we had held the appellant proved all three requirements, we would then examine the record to determine if, beyond a reasonable doubt, “the error made no contribution to the conviction or to the punishment.” Erwin, 729 S.W.2d at 714 . On this record, we could not hold, beyond a reasonable doubt, the error did not contribute to the conviction.
I would reverse.