                          COURT OF APPEALS
                             SECOND DISTRICT OF TEXAS
                                  FORT WORTH


                                 NO. 2-09-381-CR


LE JERAL GUINN                                                         APPELLANT

                                          V.

THE STATE OF TEXAS                                                           STATE

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      FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                   I. INTRODUCTION

      Appellant Le Jeral Guinn appeals his conviction for indecency with a child.

The female complainant was thirteen years old. The jury found Appellant not

guilty of sexual assault of a child. In two issues, Appellant contends that the trial

court erred in excluding certain evidence and in sustaining the State’s objection
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       See Tex. R. App. P. 47.4.
to Appellant’s final argument. We overrule each issue and affirm the trial court’s

judgment.

                             II. EXCLUSION OF EVIDENCE

      At trial, the complainant testified that Appellant, a friend of her step-father

and mother, came into her room at night and touched her thigh. When she told

him not to, he replied that she needed not to scream and threatened to hit her

―dead in the jaw‖ if she did.      He pulled up her blouse and bra, fondled her

breasts, and kissed her neck and ear while telling her he loved her. She testified

that he then sexually assaulted her, although, the jury found him not guilty of this

charge. On cross examination she was asked, ―when his penis went inside your

vagina, was it able to go in pretty easy?‖ and ―[i]t was able to go in?‖ The victim

responded ―yes‖ to both questions.

      Appellant called his girlfriend, Yolanda Watkins, to testify about her sexual

relations with him. After the jury was removed, Appellant’s attorney indicated he

wanted to establish the large size of Appellant’s penis. The trial court sustained

the State’s objection that the evidence was not relevant, stating ―So it’s not

relevant. It’s not helpful. It’s misleading.‖

      Under Texas Rules of Evidence 401, 402 and 403, evidence is ―relevant‖ if




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it tends to make the existence of any fact of consequence to the determination of

the action more probable or less probable. Texas Rules of Evidence 401, 402,

403 in essence, provides that relevant evidence is admissible. Evidence is not

admissible if it is not relevant. Here, Appellant argues the excluded evidence is

relevant to cast doubt on the victim’s testimony and her veracity.

      The trial court clearly relied on rule 403, entitled, ―Exclusion of Relevant

Evidence on Special Grounds,‖ which provides,

      Although relevant, evidence may be excluded if its probative
      value is substantially outweighed by the danger of unfair
      prejudice, confusion of the issues, or misleading the jury, or by
      considerations of undue delay, or needless presentation of
      cumulative evidence.

Tex. R. Evid. 403. The court apparently concluded that the evidence was not

relevant, not helpful, and was misleading (or confusing).

      A trial court is given wide latitude to exclude, or not to exclude, evidence.

Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on

reh’g).   As long as the court operates within the bounds of discretion, an

appellate court should not disturb its decision. A trial court abuses its discretion

in an evidentiary ruling only when it is so clearly wrong that it is outside the ―zone

of reasonable disagreement.‖ Id. at 390–91.

      In this case, the trial court considered the evidence Appellant sought to

admit and found that it was simply not relevant. Other courts have likewise found

that similar evidence was not relevant and thus not admissible. See Bellaire v.

State, 110 S.W.3d 664, 671 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (by

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itself, evidence of genital size irrelevant and inadmissible); see also Thomas v.

State, No. 05-98-01820-CR, 2001 WL 43075, at *2 (Tex. App.—Dallas Jan. 17,

2001, pet. ref’d) (not designated for publication) (same). Accordingly, we hold

that the trial court did not err in excluding this evidence. Appellant’s issue one is

overruled.

                              III. CLOSING ARGUMENT

      In his closing argument, Appellant’s counsel argued that one of Appellant’s

felony convictions—burglary of a vehicle—was, ―at this day and age,‖ a

misdemeanor.     The trial court sustained the State’s objection to Appellant’s

argument as a ―misstatement of the law.‖           We conclude that Appellant’s

argument was at least a partial misstatement of the law, or an incomplete one.

Under section 30.04 of the Texas Penal Code, burglary of a vehicle is either a

class A misdemeanor or a state jail felony if the defendant has been previously

convicted two or more times under that provision.         Tex. Pen. Code Ann. §

30.04(d)(2)(A) (Vernon Supp. 2009). Thus, we hold that the trial court did not

abuse its discretion in sustaining the State’s objection to Appellant’s closing

argument. We overrule Appellant’s issue two.

                                  VI. CONCLUSION

      We hold that the trial court did not err. However, had we found error,

related to the issues raised in this appeal, it would not require reversal. After

carefully reviewing the record and performing the required harm analysis under

rule 44.2(b), we would hold beyond a reasonable doubt that neither error alleged

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would have contributed to Appellant’s conviction or punishment. See Tex. R.

App. P. 44.2(a).

      We affirm the judgment of the trial court.



                                             CHARLES BLEIL
                                             JUSTICE

PANEL: DAUPHINOT and MCCOY, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 19, 2010




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