Opinion issued February 12, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00838-CR
                           ———————————
                        FINLEY WRIGHT, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 174th District Court
                          Harris County, Texas
                      Trial Court Case No. 1334182


                         MEMORANDUM OPINION

     Appellant, Finley Wright, was charged by indictment with aggravated sexual

assault.1 Appellant pleaded not guilty. The jury found him guilty and assessed




1
     See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (2)(A)(ii) (Vernon Supp. 2014).
punishment at 40 years’ confinement. In three issues, Appellant argues the trial

court abused its discretion by allowing bolstering evidence to be admitted.

      We affirm.

                                   Background

      J. Watson is a school teacher for the Houston Independent School District.

In January 2012, Watson’s friend and fellow school teacher, N. Tutt, convinced

Watson to go to a club with her. At the club, Appellant approached Watson and

asked her to dance. They danced and ultimately kissed some. When the club

closed, Appellant told Watson that the person who drove him to the club had left.

Watson agreed to give Appellant a ride home.

      After directing Watson along a rambling route, Appellant finally told

Watson to park behind a dark house.          Appellant asked for a goodnight kiss.

Watson got out of the car and went to the passenger-side door. They kissed. Then,

Appellant pushed Watson down on the front passenger seat. Appellant held her

down by her neck and said, “You know you want me to fuck you.” Watson said,

“No.” Appellant started punching Watson in the face. Watson fought back.

During the fight, Watson grabbed some scissors and attempted to stab Appellant

with them. Appellant wrestled the scissors from Watson. He picked up a pen and

began stabbing Watson repeatedly in the abdomen and on one arm.




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      Because she was unable to fight off Appellant and because Appellant’s

attacks were escalating in intensity, Watson decided the safest thing to do would be

to stop resisting.   Appellant then forcibly sexually assaulted her.     After that,

Appellant closed the passenger door, got Watson’s keys, and drove the two of them

to a different location. During the course of the night, Appellant drove Watson to

various locations and continued to sexually assault her.

      Eventually, Appellant drove to an apartment complex with a guard stationed

at the front. Appellant drove to the back of the complex and parked. He instructed

Watson to get out, and they walked to a certain apartment. Appellant knocked, but

no one answered. They returned to Watson’s car. Once they were back in the car,

Appellant passed out.

      After Appellant passed out, Watson got out of the car and went to the guard

station. She called 911 while going to the station and reported the rape. Officer S.

Stewart arrived on the scene and found Appellant passed out in Watson’s car.

Officer Stewart arrested Appellant. He also obtained a statement from Watson

about what happened to her.

      Watson was taken to a hospital. At the hospital, Watson met with D.

Oldham, a forensic nurse examiner. Watson described in more detail what had

happened to her. Oldham prepared a sexual assault examination forensic report,

indicating the extent of Watson’s injuries. She also took photographs of the



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injuries. The sexual assault examination forensic report and the photographs of

Watson showed injuries to her face, neck, one shoulder, arms, abdomen, vagina,

and one leg.

      Some time later, Watson met with Investigator P. Moreno, who is an

investigator for the Houston Police Department sex crimes unit.           During the

meeting, Watson again described what happened to her during the incident.

      At trial, the following exchange occurred while the prosecutor was

questioning Investigator Moreno:

      Q.       After you spoke with Ms. Watson, did you go back through the
               reports and review what she had told the other officers?

      A.       Yes.

      Q.       Did you find her accounts to be consistent?

      [Defense]: Objection, Your Honor. Improper bolstering.

      THE COURT: Overruled.

      A.       Yes.

      Q.       (BY [Prosecution]) And have you—in investigating cases like
               this, have you ever come across a time where you believed that
               a person was making an allegation up?

      [Defense]: Objection, Your Honor. Relevance, as well as speculation.

      THE COURT: Sustained.

      ....

      Q.       And if the case has already been filed and you find out that that
               person is not—you don’t believe that it’s true, would you do


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      everything in your power to keep the charge from going
      forward?

[Defense]: Objection, Your Honor. Improper bolstering, as well as
      speculation.

[Prosecution]: Judge, she’s brought it up in her cross-examination.

THE COURT: It’s overruled.

Q.    (BY [Prosecution]) If you were to come across a case and you
      didn’t believe that it happened, would you do everything in
      your power to make sure that the case was either dismissed, or
      withdrawn, or whatever the case might be?

A.    Yes.

Q.    Have you done that before?

A.    Yes.

Q.    Under what circumstances did that kind of thing come up?

[Defense]: Objection, Your Honor. We are going outside of the scope
      of this case. It’s collateral and it has the possibility of bringing
      about confusion.

THE COURT: Overruled.

Q.    (BY [Prosecution]) Under what circumstances have you seen
      that kind of case where you’ve got somebody making up an
      allegation like this?

A.    I’ve seen where the alleged victim of sexual assault is having an
      affair and comes home late and the husband is upset and so she
      makes the allegation. I’ve seen it sometimes involving custody,
      divorces and stuff.

Q.    But if you have a single woman with no apparent reason to lie
      and a consistent statement—



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      [Defense]: Objection, Your Honor, to the form of this question, as
            well as the improper bolstering of the witness who has not
            testified yet.

      THE COURT: I haven’t heard the question yet so that’s overruled for
           now.

      Q.    (BY [Prosecution]) Would that be a common scenario where
            you might see this type of allegation being made up?

      A.    Can you repeat your question.

      Q.    A single woman who doesn’t have any apparent reason to make
            up a story and is consistent through her statement—

      [Defense]: Your honor—

      Q.    (BY [Prosecution]) —would that be a situation where you
            might—where you would expect to see someone making that
            sort of thing up?

      A.    No.

      [Defense]: Your Honor, I renew my objection for the same reasons, as
            well as there are facts that are not in evidence. There’s been no
            testimony by anyone that has taken the stand that the witness is
            a single woman or that she has no reason to make things up.

      THE COURT: It’s overruled.

      Q.    (BY [Prosecution]) You may answer, sir.

      A.    No, there isn’t.

                                   Bolstering

      In three issues, Appellant argues the trial court abused its discretion by

allowing bolstering evidence to be admitted.




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A.    Standard of Review

      We review a trial court’s admission or exclusion of evidence for an abuse of

discretion. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002). In

determining whether the trial court abused its discretion, we consider whether the

court acted without reference to guiding rules and principles—that is, whether the

court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex.

Crim. App. 1993). We must uphold the trial court’s ruling so long as it is “within

the zone of reasonable disagreement.” Wheeler v. State, 67 S.W.3d 879, 888 (Tex.

Crim. App. 2002).

      “Generally, the erroneous admission or exclusion of evidence is

nonconstitutional error governed by Rule of Appellate Procedure 44.2(b) if the trial

court’s ruling merely offends the rules of evidence.” Melgar v. State, 236 S.W.3d

302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d); see also Torres v.

State, 424 S.W.3d 245, 260 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d)

(reviewing claim of bolstering as harmless error).        We must disregard non-

constitutional error unless it affects an appellant’s substantial rights. TEX. R. APP.

P. 44.2(b); Robinson v. State, 236 S.W.3d 260, 269 (Tex. App.—Houston [1st

Dist.] 2007, pet. ref’d). An error affects a substantial right only when the error had

a substantial and injurious effect or influence on the jury’s verdict. Robinson, 236

S.W.3d at 269 (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).



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We cannot reverse a criminal conviction unless we have “‘a grave doubt’ that the

result was free from the substantial influence of the error . . . . ‘Grave doubt’

means that ‘in the judge’s mind, the matter is so evenly balanced that he feels

himself in virtual equipoise as to the harmlessness of the error.’” Burnett v. State,

88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002) (quoting O’Neal v. McAninch, 513

U.S. 432, 435, 115 S. Ct. 992, 994 (1995)).

B.    Analysis

      The State argues that Appellant has not fully preserved his complaint about

bolstering and that the trial court did not abuse its discretion by permitting the

evidence. We hold that, assuming the complaint was fully preserved and the trial

court’s ruling was in error, any error is harmless.

      Much of the State’s case rested on Watson’s credibility.            Appellant

acknowledged that he had sex with Watson. He claimed, however, that the sex

was consensual.     Watson was the only witness to testify about whether she

consented to the sex. Accordingly, her credibility was a central issue for the jury

to consider.     Because of the importance of Watson’s credibility, improper

bolstering could potentially have a negative impact on the jury’s deliberations. But

due to the weight of other evidence supporting Watson’s version of events and her

credibility, we conclude that any improper bolstering would have had little

cumulative effect on the jury’s determination.



                                           8
      Appellant told Officer Stewart, Oldham, and Investigator Moreno what had

happened to her between when she and Appellant left the club and when she

reached the apartment guard station. While some small variations did exist in the

versions, they were all largely the same.       These versions matched Watson’s

testimony about what happened to her. Watson’s consistency among her accounts

of what happened to her indicates considerable reliability for her account.

      Additionally, Watson’s description of Appellant’s attacks matched her

injuries. The sexual assault examination forensic report and the photographs of

Watson showed injuries to her face, neck, one shoulder, arms, abdomen, vagina,

and one leg. Appellant suggested to the jury that some of the injuries sustained by

Watson would be consistent with consensual sex. While some minor injuries could

occasionally be associated with consensual sex, the extent and type of injuries

sustained by Watson do not favor a determination of consensual sex. Specifically,

Watson described Appellant stabbing her with a writing pen repeatedly in the

abdomen and on one arm.          Injuries on her abdomen and arm match this

description. No portion of the record offers any explanation for how or why being

stabbed repeatedly with a writing pen should be considered indicative of

consensual sex.

      Finally, there is the description of Watson’s behavior and personality before

and after the incident. Watson testified that she is normally a quiet person, that it



                                          9
was rare for her to go out to a club, and that she does not crave attention. Tutt gave

the same description. Tutt testified that Watson did not want to go to the club but

that she talked Watson into going. She testified that Watson is reserved, keeps to

herself, and does not seek attention.

      Watson testified that she has seen multiple medical health professionals to

deal with what happened to her. She has been diagnosed with post-traumatic stress

disorder, and her condition has had a negative impact on her work performance.

Tutt testified that the incident significantly affected Watson and that Watson has

not been the same since that date.

      During closing argument, the State emphasized these facts to show that

Watson was a credible witness.          In contrast, it only tangentially referenced

Investigator Moreno’s testimony concerning when he had seen someone make up a

rape allegation. Specifically, the prosecutor said, “This is not a woman who is

having an affair on her husband. She’s not married. There’s no motivation to lie.”

The State did not make any other reference to the complained-of testimony.

      Because of how little emphasis the complained-of testimony was given and

because of the amount of other significant evidence supporting Watson’s version

of events and her credibility, we hold that the record does not support a

determination that the complained-of testimony had a substantial and injurious

effect or influence on the jury’s verdict.      See Robinson, 236 S.W.3d at 269



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(holding error affects substantial right only when error had substantial and

injurious effect or influence on jury’s verdict). We overrule Appellant’s three

issues.

                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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