Opinion issued November 20, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-12-01125-CR
                          ———————————
                    GARY WAYNE WILSON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 209th District Court
                           Harris County, Texas
                       Trial Court Case No. 1068173


                                OPINION

      Appellant, Gary Wayne Wilson, was charged by indictment with aggravated

sexual assault of a child.1 The jury found him guilty and assessed punishment at

life imprisonment. In one issue on appeal, Appellant argues that the trial court

1
      See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (Vernon Supp.
      2014).
abused its discretion by excluding evidence of his good character for moral and

safe conduct around young children.

         We reverse and remand for a new trial.

                                     Background

         KM’s parents separated around early 2001, when KM was almost four years

old. After the separation, KM, his older brother, his older sister, and his younger

brother lived with their mother. Some time after the separation, KM’s mother

started dating Appellant. Appellant moved in with KM and his family in 2002.

KM made the outcry of sexual abuse six months later.

         KM’s father testified at trial that, early in his youth, KM had been a happy

child.    He testified that this behavior started to change around the time that

Appellant moved in with KM’s family. Over time, KM has been diagnosed with

multiple psychological disorders, including attention deficit hyperactivity disorder,

bipolar disorder, and post-traumatic stress disorder.      KM has been prescribed

medication for his disorders and has been admitted into psychological treatment

centers numerous times in his childhood. A doctor from one of these facilities

testified that KM suffered hallucinations, including voices telling him to hurt his

mother. By the age of 15—his age at the time of trial—KM had been charged with

multiple crimes, including assault of his sister and making a terroristic threat.




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KM’s father acknowledged that KM had a history of being manipulative and

telling lies.

       KM testified at length and in detail about the sexual assaults to which he

described Appellant subjecting him. He testified that Appellant sexually assaulted

him two to five times every month from the time Appellant moved in with the

family until October 2005, when KM was removed from the home. He described

six of those instances in detail. In addition, KM testified about physical abuse he

suffered from Appellant. KM and his sister both testified that Appellant would

regularly walk around the house naked, would have sex with KM’s mother in front

of the children, and would leave pornographic magazines lying around the house.

KM testified that Appellant threatened to kill KM and his father if KM ever told

anyone about the abuse.

       KM’s sister testified that she once saw Appellant sexually assaulting KM by

penetrating KM’s anus with Appellant’s penis.        She testified that Appellant

threatened to kill her and her father if she told anyone about what she saw. She

also witnessed Appellant physically assault KM on multiple occasions.

       After he made his outcry about sexual assault, KM was given a physical

examination. Dr. M. Donaruma testified for the State about the results of the

examination. She testified that KM’s physical examination was “an abnormal anal

exam” with the discovery of “a healing tear around his anal opening” that “would



                                        3
be consistent with a sexual assault of the anus.” She also testified that there were

multiple possible explanations of what caused the tear and that it is commonly

“unlikely” to see an injury as the result of a sexual assault of the anus because the

anus can typically accommodate objects the size of a penis.

       Dr. L. Thompson, the director of therapy and psychological services at the

Harris County Children’s Assessment Center, testified as the State’s expert about

certain psychological characteristics that were prevalent in victims of sexual abuse.

These characteristics included sleep difficulties, appetite difficulties, anxiety

disorders, and interpersonal difficulties. The record established that KM suffered

from a number of the characteristics described by Dr. Thompson. Nevertheless,

Dr. Thompson was careful to explain that “although there might be a higher

incidence of [a] certain problem in people who have been [sexually] abused, there

may be more than one thing that could cause that particular problem.”

       For his case-in-chief, Appellant sought to present nine witnesses to testify

about Appellant’s character regarding moral and safe conduct around children.

These witnesses were two of Appellant’s daughters, his son, his brother, a friend, a

nephew-in-law, his current girlfriend, his girlfriend’s mother, and a niece. The

State objected that the testimony was improper bolstering and was not relevant.

The trial court sustained the objections and denied the request to allow the people

to testify.



                                         4
      Appellant presented the testimony of the nine witnesses in an offer of proof.

All nine people testified that they had seen Appellant around young children on

many occasions, that they had “an opinion regarding [Appellant’s] character

regarding moral and safe conduct around children,” and that their opinion of

Appellant’s character was “good.”

                               Exclusion of Evidence

      In his sole issue, Appellant argues that the trial court abused its discretion by

excluding evidence of his good character for moral and safe conduct around young

children.

A.    Preservation

      As an initial matter, the State argues that Appellant failed to preserve this

issue for appellate review. As the State correctly points out, the Texas Rules of

Appellate Procedure require,

      (a)   In General. As a prerequisite to presenting a complaint for
            appellate review, the record must show that:

            (1)    the complaint was made to the trial court by a timely
                   request, objection, or motion that:

                   (A)    stated the grounds for the ruling that the
                          complaining party sought from the trial court with
                          sufficient specificity to make the trial court aware
                          of the complaint, unless the specific grounds were
                          apparent from the context . . . .




                                          5
TEX. R. APP. P. 33.1(a)(1)(A) (emphasis added). The State argues that, because

Appellant failed to present the trial court with relevant case law supporting his

position that the testimony he sought to have admitted was admissible after the trial

court asked him if he had such case law, Appellant failed to preserve the issue for

appellate review.

      The State misconceives what constitutes “the complaint” as provided in rule

33.1. A stated intent to present evidence is not a “complaint.” Appellant informed

the trial court he would present the testimony of people concerning his “character

regarding moral and safe conduct around children.” It was the State that objected

to this evidence, arguing that it constituted improper bolstering and was not

relevant. These objections are “the complaint[s] made to the trial court by a timely

request, objection, or motion.” Id. The trial court sustained those objections, and

the Appellant now “present[s] those complaint[s] for appellate review.” Id.

      The State’s reliance on rule 103 of the Texas Rules of Evidence is similarly

misplaced. Rule 103 provides,

      (a)    Effect of Erroneous Ruling. Error may not be predicated upon
             a ruling which admits or excludes evidence unless a substantial
             right of the party is affected, and

             (1)    Objection. In case the ruling is one admitting evidence, a
                    timely objection or motion to strike appears of record,
                    stating the specific ground of objection, if the specific
                    ground was not apparent from the context. . . .




                                          6
              (2)   Offer of proof. In case the ruling is one excluding
                    evidence, the substance of the evidence was made known
                    to the court by offer, or was apparent from the context
                    within which questions were asked.

TEX. R. EVID. 103 (emphasis added).

      The State argues that Appellant failed to satisfy the requirements of rule

103(a)(1). By its plain language, however, it is apparent that rule 103(a)(1) only

applies to evidence that was admitted. TEX. R. EVID. 103(a)(1). Appellant’s

evidence was excluded. Accordingly, rule 103(a)(1) does not apply. Instead, for

excluded evidence, rule 103(a)(2) applies, requiring Appellant to make an offer of

proof, informing the court of the substance of the excluded evidence. TEX. R.

EVID. 103(a)(2). Appellant made just such an offer of proof.

      We hold the issue has been preserved for review.

B.    Error

      Next, we consider whether the trial court abused its discretion by excluding

the requested evidence. We review a trial court’s decision to admit or exclude

evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d

782, 793 (Tex. Crim. App. 2006). We will not reverse a trial court’s ruling unless

that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71

S.W.3d 758, 760 (Tex. Crim. App. 2002).

      Generally, “[e]vidence of a person’s character or character trait is not

admissible for the purpose of proving action in conformity therewith on a


                                        7
particular occasion.” TEX. R. EVID. 404(a). “However, an accused in a criminal

case is permitted to introduce evidence of a specific good-character trait to show

that it is improbable that he committed the charged offense, when that character

trait is relevant to the offense.” Melgar v. State, 236 S.W.3d 302, 306–07 (Tex.

App.—Houston [1st Dist.] 2007, pet. ref’d) (citing TEX. R. EVID. 404(a)(1)(A)).

      Appellant asked the trial court to allow nine people to testify about

Appellant’s character. During the offer of proof, all nine people testified that they

had seen Appellant around young children on many occasions, that they had “an

opinion regarding [Appellant’s] character regarding moral and safe conduct around

children,” and that their opinion of Appellant’s character was “good.” The State

objected that the testimony was improper bolstering. The trial court denied the

request to allow the people to testify as identified.        On appeal, Appellant

acknowledges that two of the people presented to testify did not know Appellant

during the time period in question and, accordingly, their opinion about

Appellant’s character regarding conduct around children would not be relevant.

Appellant argues, however, that the remaining seven people should have been

allowed to testify.

      A defendant charged with aggravated sexual assault is “entitled to proffer

evidence of his good character (or propensity) for moral and safe relations with

small children or young [boys].” Wheeler v. State, 67 S.W.3d 879, 882 (Tex.



                                         8
Crim. App. 2002) (citing TEX. R. EVID. 404(a)(1)(A)). Excluding such evidence is

an abuse of discretion. See Thomas v. State, 669 S.W.2d 420, 423–44 (Tex.

App.—Houston [1st Dist.] 1984, pet. ref’d) (reversing judgment based on

exclusion of good-character evidence).

      Appellant was charged with aggravated sexual assault of KM. The seven

witnesses in question were prepared to testify that Appellant had a good character

regarding moral and safe conduct around children. This is permissible under rule

404 and directly relevant to offense with which he had been charged.

      We hold the trial court abused its discretion by excluding this evidence.

C.    Type of Error

      Having determined that the trial court’s ruling was error, we must consider

whether the error was harmful. See TEX. R. APP. P. 44.2. Different types of error,

however, have different standards of review for harm.        See id. So we must

determine what kind of error was committed.

      In general, errors in criminal cases are divided between constitutional errors

and non-constitutional errors. See id. For constitutional errors, “the court of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.” TEX. R. APP. P. 44.2(a). For non-constitutional errors,




                                         9
any error “must be disregarded” unless the error affects Appellant’s substantial

rights. TEX. R. APP. P. 44.2(b).

      “Generally, the erroneous admission or exclusion of evidence is

nonconstitutional error . . . .” Melgar, 236 S.W.3d at 308. Erroneous exclusion of

evidence can rise to the level of constitutional error, however, when the excluded

evidence “forms such a vital portion of the case that exclusion effectively

precludes the defendant from presenting a defense.” Potier v. State, 68 S.W.3d

657, 665 (Tex. Crim. App. 2002).2 “Trials involving sexual assault may raise

particularly evidentiary and constitutional concerns because the credibility of both

the complainant and defendant is a central, often dispositive issue.” Hammer v.

State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). While excluding testimony

that would “incrementally” further the defendant’s defensive theory is not

constitutional error, excluding evidence that “goes to the heart of the defense” is.

See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (holding

erroneously excluding testimony that incrementally furthers defense is non-

constitutional error); Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002)




2
      It can also rise to the level of constitutional error “when a state evidentiary rule
      categorically and arbitrarily prohibits the defendant from offering relevant
      evidence that is vital to his defense.” Ray v. State, 178 S.W.3d 833, 835 (Tex.
      Crim. App. 2005). This circumstance is not applicable to our current analysis,
      however.

                                           10
(holding erroneously excluding testimony that “goes to the heart of the defense” is

constitutional error).

      Appellant argues that the testimony of his family and friends concerning his

character was his only defense and that, accordingly, its exclusion amounts to

constitutional error. We must agree.

      Appellant presented one witness during the guilt-innocence phase of the

trial. He presented his biological daughter, who testified that she and Appellant’s

biological son lived with Appellant off-and-on during the time in question. No

further testimony was presented. While Appellant cross-examined many of the

State’s witnesses, no identifiable defensive theory was developed in the course of

the cross-examination. Appellant’s closing argument consisted solely of urging the

jury to consider that the State had not carried its evidentiary burden. Appellant’s

counsel even implored the jury to consider the difficulty of how Appellant could

“defend [himself] against that kind of allegation.”

      A review of the record indicates, then, that Appellant’s sole available

defense was the testimony of his friends and family that such actions are not in

keeping with his character. That testimony did not only go to the heart of his

defense, see Wiley, 74 S.W.3d at 405; it was the sum total of his defense.

Additionally, Appellant’s credibility and character are pivotal matters in this case.




                                         11
See Hammer, 296 S.W.3d at 561. Accordingly, we hold that the exclusion of the

evidence was constitutional error.

D.    Harm

      When an error is determined to be constitutional error, “the court of appeals

must reverse a judgment of conviction or punishment unless the court determines

beyond a reasonable doubt that the error did not contribute to the conviction or

punishment.” TEX. R. APP. P. 44.2(a). The mere fact that there is other evidence

that could support conviction does not establish that the error is harmless.

McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). Instead, “[i]f there

is a reasonable likelihood that the error materially affected the jury’s deliberations,

then the error is not harmless beyond a reasonable doubt. The reviewing court

should calculate, as nearly as possible, the probable impact of the error on the jury

in light of the other evidence.” Id.

      As we have noted, trials concerning allegations of sexual assault depend

heavily on credibility determinations between two competing claims of what

happened. See Hammer, 296 S.W.3d 561–62. This case is no different. It is well

acknowledged, however, that a court of appeals reviewing a cold record is ill suited

to make determinations of credibility much less to weigh them. See Lancon v.

State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). “The jury is in the best

position to judge the credibility of a witness because it is present to hear the



                                          12
testimony, as opposed to an appellate court who relies on the cold record.” Id. As

a result, we must “afford almost complete deference to a jury’s” determination of

credibility, and “the jury is the sole judge of what weight to give such testimony.”

Id.

      KM testified at length and in detail about the sexual assaults to which he

described Appellant subjecting him. The record also established, however, that

KM had a history of lying and of being manipulative. He has been diagnosed with

attention deficit hyperactivity disorder, bipolar disorder, and post-traumatic stress

disorder. The record established that he suffered hallucinations, including voices

telling him to hurt his mother.

      KM’s sister testified that she saw Appellant rape KM on one occasion. But

we cannot exclude the possibility that she could have motivations to testify other

than to give an unaltered account of what she observed, a matter that could be

informed by determinations of credibility.

      Other than the testimony of KM and his sister, there is little evidence in the

record identifying Appellant as the perpetrator of the sexual assaults with which he

was charged. There was testimony from other witnesses concerning KM’s outcry,

but the veracity of those outcry statements ultimately return to determinations of

KM’s credibility.




                                         13
      Dr. Donaruma testified that KM’s physical examination following his outcry

was “an abnormal anal exam” with the discovery of “a healing tear around his anal

opening” that “would be consistent with a sexual assault of the anus.” But she also

testified that there were multiple possible explanations of what caused the tear and

that it is commonly “unlikely” to see an injury as the result of a sexual assault of

the anus because the anus can typically accommodate objects the size of a penis.

Even if we determined that a jury would conclude that the evidence was indicative

of a sexual assault, however, this evidence would not compel the conclusion that

Appellant committed the assault.

      Similarly, Dr. Thompson testified about certain psychological characteristics

that were prevalent in victims of sexual abuse. These characteristics included sleep

difficulties, appetite difficulties, anxiety disorders, and interpersonal difficulties.

The record established that KM suffered from a number of the characteristics

described by Dr. Thompson. Nevertheless, Dr. Thompson was careful to explain

that “although there might be a higher incidence of [a] certain problem in people

who have been [sexually] abused, there may be more than one thing that could

cause that particular problem.”

      We endeavor to emphasize that we do not assert that KM’s testimony—or

the testimony of any witness presented by the State—was motivated by anything

other than a sincere desire to describe the events as they actually happened.



                                          14
Nothing in this opinion is meant to impugn the motives or intentions of KM. The

physical and emotional difficulties he has suffered are apparent from the record,

and we do not make light of them or castigate him because of them.

      Instead, our concern lies with our very inability to make such determinations

concerning any of the testifying witnesses in the presence of a cold record.

Credibility determinations are wisely entrusted to the trier of fact for this very

reason. None of the evidence directly identifying Appellant as the perpetrator of

sexual assault was free from the need of credibility determinations.

      Just as we cannot assess matters concerning the credibility of the State’s

witnesses presented at trial, we likewise cannot assess how the jury would have

assessed the credibility of the seven witnesses offered by the defense to testify on

Appellant’s good character regarding moral and safe conduct around children. A

jury swayed by the credibility of these seven witnesses and with questions on the

credibility of the State’s witnesses certainly could be materially affected in their

deliberations. See McCarthy, 65 S.W.3d at 55 (holding error is not harmless

beyond a reasonable doubt if there is reasonable likelihood that error materially

affected jury’s deliberations). Because we cannot make this determination, we are

required to reverse and remand for a new trial.

      We sustain Appellant’s sole issue.




                                           15
                                    Conclusion

      We reverse and remand for a new trial.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Justice Sharp, dissenting from the judgment.

Publish. TEX. R. APP. P. 47.2(b).




                                         16
