Opinion filed September 30, 2013




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-11-00247-CR
                                  __________

                  MANUEL JAVIER PEREZ, Appellant

                                        V.

                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 385th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR37715


                     MEMORANDUM OPINION
      The jury convicted Manuel Javier Perez of two counts of aggravated sexual
assault of a child (Counts I and II) and one count of indecency with a child
(Count III). The jury assessed punishment at confinement for a term of twenty-
five years for each aggravated sexual assault offense and confinement for a term of
five years for the indecency with a child offense.      The trial court sentenced
Appellant accordingly, ordered that the sentences on Counts I and II run
concurrently, and ordered that the sentence on Count III run consecutively to the
sentences on Counts I and II. The trial court entered separate judgments on each of
the counts. We affirm.
                                The Charged Offenses
      The indictment referred to the child by her real name. We will refer to her
by “M.M.” to protect her identity. M.M. is Appellant’s daughter. Count I of the
indictment alleged that, on or about August 13, 2010, Appellant sexually assaulted
M.M., a child younger than fourteen years of age, by penetrating her sexual organ
with his sexual organ.     Count II alleged that, on or about August 14, 2010,
Appellant sexually assaulted M.M., a child younger than fourteen years of age, by
penetrating her sexual organ with his sexual organ. Count III alleged that, on or
about August 13, 2010, Appellant engaged in sexual contact with M.M. by
touching her breast. Counts IV, V, and VI alleged that, on or about and between
June 1, 2009, and August 1, 2010, Appellant sexually assaulted M.M. by
penetrating her sexual organ with his sexual organ, engaged in sexual contact with
M.M. by touching her genitals, and engaged in sexual contact with M.M. by
touching her breast. The jury convicted Appellant of the first, second, and third
counts, and it acquitted Appellant of the fourth, fifth, and sixth counts.
                                  Issues on Appeal
      Appellant does not challenge the sufficiency of the evidence to support his
convictions. He presents three points of error for review. In his first point,
Appellant contends that the trial court erred by excluding evidence that was vital to
his presentation of a meaningful defense. Appellant asserts that the trial court’s
evidentiary errors effectively precluded him from presenting a defense. In his
second point, Appellant contends that the trial court erred by denying his motion
for continuance. In the motion, Appellant asserted that he needed more time to
                                           2
obtain the appearance of a witness at trial. In his third point, Appellant contends
that the trial court erred by refusing to grant his motion for new trial.
                                The Evidence at Trial
      Although Appellant does not challenge the sufficiency of the evidence, we
will summarize the evidence to provide context for the points of error on appeal.
In August 2010, M.M. lived in an apartment with her mother, her stepfather, and
her sister and brother. At that time, M.M. was thirteen years old. During the
evening of August 13, 2010, Appellant exercised his visitation rights to M.M.
Appellant picked her up at her apartment. M.M testified that Appellant drove
around in Appellant’s pickup and looked for his friend but could not find him.
Appellant then took M.M. to his mother’s house. M.M. said that Appellant drank
more than three beers while there. M.M. and Appellant left his mother’s house.
Appellant again looked for his friend but did not find him. Appellant then drove to
another friend’s body shop. M.M. said that no one was at the shop. She said that
Appellant opened the shop with a key and drove his pickup into the shop. M.M.
and Appellant were inside the shop for about two hours. While there, Appellant
drank more beer. M.M. testified that, while she and Appellant were inside the
body shop, Appellant kissed her on the lips, gave her a hickey on her neck, and
touched her breasts over her clothes. Appellant told M.M. that the hickey looked
good on her.
      Appellant and M.M. left the body shop. M.M. testified that Appellant went
to the Scottish Delight Motel to rent a room. She said that he rented Room 116,
which was a downstairs room. The State introduced a registration card from the
Scottish Delight Motel into evidence. The card was signed by Appellant and
showed that he rented Room 116 on August 13, 2010. M.M. and Appellant went
into the room. M.M. testified that she took a shower. She put back on her capri
pants, bra, and shirt. M.M. said that she lay down on the one bed that was in the
                                           3
room. She testified that Appellant took a shower and then climbed into bed with
her. M.M. said that Appellant took off his shorts. M.M. saw that Appellant’s
penis was “hard and long.” M.M. said that she took off her capri pants because
“[she] already knew what was coming” and “[she] was ready to get it over with.”
She said that Appellant had previously had sexual intercourse with her.
      M.M. testified that, after she took off her capri pants, Appellant “rolled on
top of [her]” and “had sexual intercourse with [her].” She said that Appellant put
his penis into her vagina and moved it in and out of her vagina. M.M. said that
Appellant touched her breasts under her bra. M.M. testified that, after Appellant
finished having sexual intercourse with her, Appellant tried to put his penis in her
anus but was unsuccessful. Appellant lay down on the bed and went to sleep.
M.M. said that she also fell asleep.
      M.M. said that Appellant woke up at 5:00 or 6:00 a.m. the next morning.
After he woke up, Appellant had sexual intercourse with M.M. again. M.M. said
that Appellant put his penis in her vagina and moved it in and out of her vagina.
When asked whether Appellant ejaculated on either of the above two occasions of
sexual intercourse, M.M. said, “Not inside.” She said that she did not see him
ejaculate on either occasion.
      M.M. testified that she lived with Appellant and his fiancée, Amy Perez, for
about two weeks during the summer of 2009. Appellant was married to Amy at
the time of trial. M.M. said that, while she lived with Appellant, he touched her
breasts and vagina under her clothes. M.M. also said that Appellant had sexual
intercourse with her two times when she lived with him.          She testified that
Appellant put his penis inside her vagina on both of these occasions.
      After Appellant finished having sex with M.M. the morning of August 14,
2010, Appellant drove M.M. to her mother’s apartment and dropped her off there.
Later that day, M.M. went to the grocery store with her mother, Melissa. M.M.
                                         4
testified that, at the grocery store, Melissa asked her about the hickey that was on
her neck. M.M. told Melissa that she would explain the hickey to her when they
got home. Melissa testified that, when they arrived home, M.M. told her that
Appellant gave her the hickey and that Appellant raped her two times at the
Scottish Delight Motel. Melissa called the police. M.M. met with the police, and
the police took her to Midland Memorial Hospital, where a nurse performed a
sexual assault examination on her.
      Paula Brookings, a sexual assault nurse examiner, testified that she
performed an examination of M.M. on August 14, 2010. At that time, M.M. told
Brookings that “[Appellant] put his penis inside [her]” and that “[h]e woke up
again later and put it in [her] again.” Brookings saw a purplish bruise on the left
side of M.M.’s neck. M.M. told Brookings that “[Appellant] kissed [her] and gave
[her] a hickey.”    M.M. complained of vaginal soreness.         When Brookings
examined M.M.’s vaginal area, she observed multiple abrasions to an area called
the “fossa navicularis.” Brookings described such abrasions as an injury that
commonly results from sexual intercourse or sexual assault. Brookings said that
M.M.’s abrasions were “fairly recent” and were consistent with the history M.M.
gave that Appellant sexually assaulted her. Based on her findings, Brookings
arrived at the opinion that M.M. had been sexually assaulted. Brookings also
observed dried body secretions on M.M.’s neck and on her thigh between her legs.
Brookings swabbed each side of M.M.’s neck, vagina, anal cavity, mouth, and
teeth so that DNA testing could be performed on the substances swabbed.
      Angela Rodriguez Garcia, a forensic scientist at the Texas Department of
Public Safety Crime Lab in Lubbock, performed a forensic DNA analysis of the
samples that were taken from M.M.’s body and compared those samples to a
sample buccal swab that was taken of Appellant’s saliva. Garcia’s testing of the
samples showed the presence of spermatozoa on the anal and thigh swabs. Further
                                         5
testing of those swabs revealed that the sperm cell fraction on the swabs was
consistent with Appellant’s DNA profile and that the probability a male other than
Appellant could be the source of the profile was about 1 in 22.1 quintillion for
Caucasians, 1 in 37.23 quintillion for blacks, and 1 in 48.45 quintillion for
Hispanics. Garcia testified that, to a reasonable degree of scientific certainty,
Appellant was the source of the DNA profile on the anal and thigh swabs. Testing
of the left neck swab revealed a DNA profile that was consistent with a mixture of
Appellant’s DNA and M.M.’s DNA.
      Midland Police Detective Kay Therwhanger was the investigating officer in
the case. Detective Therwhanger conducted a recorded interview of Appellant on
August 31, 2010. A copy of the interview was admitted into evidence and played
for the jury. During the interview, Appellant stated that he had never sexually
assaulted M.M. Appellant also stated a number of times that he did not know why
M.M. was saying that he had had sex with her.
      Appellant presented a number of witnesses at trial.       Ubaldo Gonzalez
testified that he was Appellant’s friend. In August 2010, Gonzalez was the lessee
of the body shop that M.M. testified about. Gonzalez said that Appellant never had
a key to the shop.
      Rachel Torres testified that she and Appellant had had a sexual relationship
for three years. Torres said that she met Appellant in Room 208, which was an
upstairs room, at the Scottish Delight Motel at about 9:30 p.m. on August 13, 2010.
Torres said that she and Appellant had sex on that occasion. Torres said that
Appellant used a condom during their sexual intercourse and that Appellant
ejaculated. Appellant got up and went into the bathroom. Torres later went into
the bathroom. She testified that the condom was in the trash can in the bathroom.
She said it was “[w]here everybody could see it.” Torres said that she left the
motel at about 11:00 p.m.
                                        6
      Amy, who was Appellant’s wife, testified that M.M. was not welcome in her
home in August 2010. Amy said that M.M. lived with her and Appellant for about
three weeks in May or June 2009. Amy said that M.M. tried to turn her and
Appellant against each other. Amy said that, in August 2010, she did not think that
visitation was taking place between Appellant and M.M.
      Appellant presented testimony from a number of his sexual partners about
his sexual habits. The witnesses said that Appellant had never given them hickeys
and that Appellant had never expressed an interest in anal sex. The witnesses also
said that they had never had sex with Appellant in the morning following a night in
which they had sex with him.
      Appellant testified that he never sexually assaulted M.M. and that he never
touched her breasts. Appellant said that he snorted cocaine and drank a lot of beer
on August 13, 2010. He said that, at about 9:00 p.m. that day, he rented an upstairs
room at the Scottish Delight Motel. Appellant said that he and Torres had sex in
the room. Appellant said that he used a condom. He said that his phone rang
while they were having sex. Appellant said that, after he and Torres had sex, he
went into the bathroom to clean himself. He testified that he put the condom in the
trash can.
      Appellant said that he checked his phone and saw that M.M. had called him
three times. He called M.M. back at about 10:30 p.m. Appellant testified that he
told Torres he was going to pick up M.M. He said that Torres left the motel.
Appellant said that he left the motel and that, at about 11:00 p.m., he picked up
M.M. at Melissa’s apartment. Appellant said that M.M. was not welcome at the
house he shared with Amy. He testified that he did not notice a hickey on M.M.’s
neck, that he did not give her a hickey, and that he had never given a girl a hickey.
      Appellant said that he took M.M. to the same room that he had been in with
Torres at the Scottish Delight Motel. He said that he had not cleaned up the room
                                          7
and that there were empty beer bottles in the room. Appellant testified that M.M.
got mad at him when she saw the beer bottles and realized that he had already been
in the room.
      Appellant testified that M.M. took a shower. Appellant said that he was
tired and that he got into bed. After M.M. showered, she got into bed. Appellant
said that he fell asleep. Appellant testified that he woke up at about 7:00 a.m. the
next morning and that, at that time, M.M. was asleep. Appellant said that, after
M.M. woke up, he told her that he was going to take her home. He said that he
dropped her off at her home at about 8:00 a.m.
      Appellant acknowledged that, when Detective Therwhanger interviewed
him, he did not tell her that he had sex with Torres on August 13, 2010, at the
Scottish Delight Motel. Nor did he tell Detective Therwhanger that he threw a
condom into the trash can after having sex.
                         Evidence Excluded by Trial Court
      Appellant’s defensive theory was that M.M. falsely accused him of sexual
assault because she was angry at him.         Appellant attempted to introduce the
following evidence to support his defense: (1) that M.M. made a previous outcry of
sexual abuse against her stepfather, Daniel; (2) that, on August 12, 2010, M.M.
told Appellant that Daniel sexually abused her; (3) that, in response, Appellant told
M.M. that he was going to tell the police that Daniel sexually abused her; and (4)
that Appellant also told M.M. that she could not live with Appellant. Appellant
asserted that his threat to tell the police about Daniel and his statement to M.M.
that she could not live with him angered M.M. and caused her to make up false
sexual assault allegations against him. Upon the State’s objections, the trial court
ruled that the evidence was not relevant and, therefore, refused to admit it.
      Appellant presented the excluded evidence to the trial court in the form of
offers of proof outside the jury’s presence.        Specifically, Appellant offered
                                          8
evidence that M.M. sent a MySpace message to her cousin, Vanessa Flores, on
February 25, 2010, in which she stated that Daniel “tried touching [her],” that she
told her mother, and that her mother did not believe her. Outside the jury’s
presence, M.M. testified that she wrote the February 25, 2010 MySpace message
and that the allegations in the message were true. During M.M.’s testimony before
the jury, M.M. had said that her relationship with Daniel was good and that Daniel
was nice to her.
      Outside the jury’s presence, Appellant testified that, during an August 12,
2010 telephone call, M.M. told him that Daniel sexually abused her and her sister.
Appellant said that, in response, he told M.M. that he was going to report Daniel to
the police. Appellant also told M.M. that she could not live with him. He said that
his response made M.M. mad and that “she called [Appellant] a bitch, or
something of that nature.” Appellant said that he believed M.M. made up the
sexual abuse allegations against him because she was mad at him.
      Also outside the jury’s presence, M.M. testified that she did not tell
Appellant that Daniel tried to molest her. She also said that Appellant did not tell
her that he was going to call the police or that she could not live with him because
of her relationship with Appellant’s wife.
                               Right to Present a Defense
      In his first point of error, Appellant contends that the trial court erred by
excluding the above evidence and that the trial court’s evidentiary errors precluded
him from presenting a vital defensive theory. Appellant asserts that, in the absence
of the excluded evidence, he was unable to explain why M.M. would have made up
the allegations against him.
      We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim.
App. 2006); Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An
                                           9
appellate court will not reverse a trial court’s ruling unless that ruling falls outside
the zone of reasonable disagreement. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.
Crim. App. 2003); Burden, 55 S.W.3d at 615.
      The United States Constitution guarantees criminal defendants “a
meaningful opportunity to present a complete defense.” Holmes v. S. Carolina,
547 U.S. 319, 324 (2006); Crane v. Kentucky, 476 U.S. 683, 690 (1986).
“Erroneous evidentiary rulings rarely rise to the level of denying fundamental
constitutional rights to present a meaningful defense.” Potier v. State, 68 S.W.3d
657, 663 (Tex. Crim. App. 2002). However, the improper exclusion of evidence
may establish a constitutional violation when the trial court erroneously excludes
relevant evidence that is a vital portion of the case and effectively precludes the
defendant from presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex.
Crim. App. 2005); Potier, 68 S.W.3d at 659–62.
      Appellant contends that the excluded evidence was admissible to show
M.M.’s motive to falsely accuse him of sexual assault. A criminal defendant has a
constitutional right to confront the witnesses against him. U.S. CONST. amends.
VI, XIV; TEX. CONST. art. I, § 10; Johnson v. State, 208 S.W.3d 478, 504 (Tex.
App.—Austin 2006, pet. ref’d). The possible animus, motive, or ill will of a
witness who testifies against a defendant is never a collateral or irrelevant inquiry.
Billodeau v. State, 277 S.W.3d 34, 42–43 (Tex. Crim. App. 2009). The defendant
is entitled, subject to reasonable restrictions, to show any relevant fact that might
tend to establish ill feeling, bias, motive, interest, or animus on the part of any
witness testifying against him. Id. at 43. Thus, as part of the confrontation right, a
trial court must give a defendant great latitude to show any fact that might tend to
affect a witness’s credibility, including ill feeling, bias, or motive. Hammer v.
State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009); Johnson, 208 S.W.3d at 504.


                                          10
      Appellant claimed that M.M. made up false sexual assault allegations
against him. The trial court excluded all evidence that related to the possibility that
M.M. fabricated the allegations because she was angry at Appellant for threatening
to tell the police that Daniel sexually abused her and for telling her that she could
not live with him. This evidence was relevant to show M.M.’s potential motive to
testify against Appellant.    Therefore, the trial court abused its discretion by
excluding it. Had the jury heard the excluded evidence and believed it, the jury
could have concluded that a possible motive arose for M.M. to make up sexual
assault allegations against Appellant. Without the excluded evidence, Appellant
could not offer the jury a reasonable explanation as to why M.M. would have made
up the allegations. Based on this fact, we conclude that the excluded evidence was
vital to Appellant’s defense and that the trial court’s erroneous evidentiary ruling
denied Appellant his right to present a meaningful defense.
      At trial, the State argued that M.M.’s MySpace message that Daniel tried to
touch her and M.M’s alleged statement to Appellant that Daniel sexually abused
her were inadmissible under Lopez v. State, 18 S.W.3d 220 (Tex. Crim. App.
2000). The State cites Lopez in its appellate brief. In Lopez, the defendant was
charged with sexual assault of a child. 18 S.W.3d at 221. The defendant sought to
impeach the child’s credibility with evidence that the child had previously falsely
accused his mother of physical abuse.          Id.   The Lopez court concluded that
evidence related to the child’s prior accusation against his mother did not have any
probative value in impeaching the child’s credibility because the defendant had not
shown the prior accusation was false and because the defendant had not shown the
prior accusation and the accusation against him were similar. Id. at 225–26. The
court concluded that the Confrontation Clause did not require the admission of the
evidence. Id. at 226.


                                          11
      The State relies on Lopez in arguing that, because Appellant did not show
that M.M. made a false accusation against Daniel that was similar to M.M.’s
accusation against Appellant, evidence of M.M.’s MySpace message and of
M.M.’s alleged statement to Appellant that Daniel sexually abused her was
inadmissible.   However, Lopez is distinguishable from this case.        Appellant’s
defense did not depend on whether M.M.’s allegations against Daniel were false.
Instead, Appellant sought to introduce the evidence to show that his response to
M.M.’s alleged statement to him that Daniel sexually abused her angered her.
Appellant offered this evidence to explain why M.M. got mad at Appellant and had
a motive to make up the allegations against him. The evidence related to M.M.’s
motive to testify against him. As such, we conclude that the evidence was not
inadmissible under Lopez.
      Because the erroneous exclusion of Appellant’s evidence constituted
constitutional error, we will conduct a harmless error analysis under Rule 44.2(a)
of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 44.2(a); Rubio v. State,
241 S.W.3d 1, 3 (Tex. Crim. App. 2007); Potier, 68 S.W.3d at 665. Under Rule
44.2(a), we must reverse unless we determine beyond a reasonable doubt that the
error did not contribute to Appellant’s conviction or punishment. In this case, the
question is whether the trial court’s failure to allow Appellant to introduce the
excluded evidence to show M.M.’s possible motive to make up the allegations
against him and to testify against him was harmless beyond a reasonable doubt.
      Our harmless error analysis should not focus on the propriety of the outcome
of the trial; instead, we should calculate as much as possible the probable impact of
the error on the jury in light of the existence of other evidence. Wesbrook v. State,
29 S.W.3d 103, 119 (Tex. Crim. App. 2000). The presence of overwhelming
evidence supporting the finding in question can be a factor in the evaluation of
harmless error. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002);
                                         12
Wesbrook, 29 S.W.3d at 119. An analysis for whether a particular constitutional
error is harmless should take into account any and every circumstance apparent in
the record that logically informs an appellate determination of whether, beyond a
reasonable doubt, the error did not contribute to the conviction or punishment.
Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011).
      The correct inquiry for whether the exclusion of evidence in violation of the
Confrontation Clause is harmless “is whether, assuming that the damaging
potential of the [excluded evidence] were fully realized, a reviewing court might
nonetheless say that the error was harmless beyond a reasonable doubt.” Snowden,
353 S.W.3d at 822 n.31 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986)). After indulging this preliminary assumption, an appellate court should
examine numerous factors in its harmless error analysis, including the importance
of the witness’s testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting the
witness on material points, the extent of cross-examination otherwise permitted,
and the overall strength of the prosecution’s case. Id.
      We have examined the record, and we have summarized the evidence above.
M.M.’s testimony was important to the prosecution’s case. Sexual assault and
indecency with a child cases are frequently “he said, she said” trials in which the
jury must reach a unanimous verdict based upon two diametrically different
versions of an event, unaided by any physical, scientific, or other corroborative
evidence. Hammer, 296 S.W.3d at 561–62. In those cases, the credibility of the
complaining witness is extremely important.         A witness’s credibility is less
important where other evidence or testimony corroborates the witness’s testimony.
Woodall v. State, 77 S.W.3d 388, 396 (Tex. App.—Fort Worth 2002, pet. ref’d).
This case is not merely a “he said, she said” trial. The physical evidence and DNA
evidence corroborated M.M.’s testimony. M.M. testified that Appellant sexually
                                         13
assaulted her the night of August 13, 2010. M.M. also testified that Appellant
sexually assaulted her again the morning of August 14, 2010. That same day,
Brookings examined M.M.        Brookings observed recent abrasions in M.M.’s
vaginal area. Garcia’s DNA analysis showed the presence of Appellant’s sperm on
the anal and thigh swabs that Brookings gathered from M.M.
      The State presented evidence that Appellant rented Room 116 at the Scottish
Delight Motel on August 13, 2010. Appellant signed a registration form for that
room, and M.M. testified that she and Appellant stayed in that room, which was a
downstairs room. Torres testified that she and Appellant were in Room 208, an
upstairs room, the night of August 13, 2010. Appellant testified that he took M.M.
to the same room that he had been in with Torres and that the room was an upstairs
room. Torres and Appellant both testified that Appellant put the used condom in
the trash can after they had sex. Appellant wanted the jury to infer that M.M. took
the condom out of the trash can in Room 208 and put his sperm on her thigh and
anus. However, an employee of the motel testified that, on August 13, 2010,
Room 208 was rented to a man named Roman Urquidi. The State introduced a
registration card from the motel that showed Urquidi rented Room 208 from
July 30, 2010, through September 17, 2010. A copy of Urquidi’s identification
card was stapled to the registration form.      Thus, the State presented strong
evidence that M.M. and Appellant were not in Room 208 on August 13, 2010.
This evidence corroborated M.M.’s testimony that she and Appellant were in
Room 116.
      Outside the jury’s presence, Appellant testified that, on August 12, 2010,
M.M. told him that Daniel sexually abused her and her sister. According to
Appellant, he told M.M. that he was going to report Daniel to the police.
However, Appellant did not report Daniel to the police. Instead of calling the
police, Appellant spent the night of August 13, 2010, with M.M. and, the next
                                        14
morning, dropped her off at the very apartment where Daniel lived. On August 31,
2010, Appellant gave his recorded interview to Detective Therwhanger. Appellant
said many times during his interview that he did not know why M.M. would have
made up the allegations against him. Appellant did not tell Detective Therwhanger
that M.M. made an outcry about Daniel to him. Nor did Appellant tell Detective
Therwhanger that he believed his response to M.M. angered her and caused her to
falsely accuse him of sexual assault.
      We recognize that the jury is the sole judge of the witnesses’ testimony and
the weight to be given their testimony. Winfrey v. State, 393 S.W.3d 763, 768
(Tex. Crim. App. 2013). However, based on our review of the record, and in light
of the strong scientific and physical evidence that corroborated M.M.’s testimony
that Appellant sexually assaulted her, we cannot conclude that the jury would have
been influenced by the excluded testimony. After carefully reviewing the record,
we conclude beyond a reasonable doubt that the trial court’s error did not
contribute to Appellant’s conviction or punishment.       Therefore, the error was
harmless.
      Appellant also contends that the trial court’s exclusion of evidence violated
various state evidentiary rules. Generally, the erroneous admission or exclusion of
evidence is nonconstitutional error governed by Rule 44.2(b) of the Texas Rules of
Appellate Procedure if the trial court’s ruling merely offends the rules of evidence.
James v. State, 335 S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.);
Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st Dist.] 2007, pet.
ref’d). Under Rule 44.2(b), we are to disregard any error unless it affected the
defendant’s substantial rights. We have concluded that the trial court’s error in
excluding Appellant’s evidence was harmless under the more stringent standard
imposed by Rule 44.2(a) for analyzing harm of constitutional errors. Therefore,
we need not conduct a separate harm analysis under the less stringent standard
                                         15
imposed by Rule 44.2(b) for analyzing harm of nonconstitutional errors. Render v.
State, 347 S.W.3d 905, 920 (Tex. App.—Eastland 2011, pet. ref’d). Appellant’s
first point of error is overruled.
                         Appellant’s Motion for Continuance
       On the third day of trial, Appellant filed a motion for continuance so that he
could serve a subpoena on Daniel to compel his attendance as a witness. The trial
court denied the motion. In his second point of error, Appellant contends that the
trial court erred when it denied his motion for continuance.
       A trial court may grant a continuance even after trial has begun “when it is
made to appear to the satisfaction of the court that by some unexpected occurrence
since the trial began, which no reasonable diligence could have anticipated, the
applicant is so taken by surprise that a fair trial cannot be had.” TEX. CODE CRIM.
PROC. ANN. art. 29.13 (West 2006). We review a trial court’s ruling on a motion
for continuance under an abuse of discretion standard. Gallo v. State, 239 S.W.3d
757, 764 (Tex. Crim. App, 2007); Janecka v. State, 937 S.W.2d 456, 458 (Tex.
Crim. App. 1996). To establish an abuse of discretion, an appellant must show that
the trial court erred by denying his motion for continuance and that he was harmed
by the denial of a continuance. Gonzales v. State, 304 S.W.3d 838, 843 (Tex.
Crim. App. 2010); Janecka, 937 S.W.2d at 468.
       The trial of this case began on May 23, 2011. Appellant filed his motion for
continuance on May 25, 2011. In the motion, Appellant stated that process servers
had made multiple attempts to serve a subpoena on Daniel but, despite their
diligent efforts, had been unable to serve him. The trial court held a hearing on the
motion. At the hearing, Appellant’s counsel stated that “[he] figured the best thing
to try to do was to try to get [Daniel] subpoenaed in plenty of time before trial” and
that “[w]e had made that effort to do so.” The trial court noted that the application


                                         16
for a subpoena for Daniel was file-marked on May 16, 2011. Following the
hearing, the trial court denied Appellant’s motion for continuance.
      Appellant filed affidavits from two process servers, Johnie Eads and Teresa
Cornelius, in support of his motion for new trial. Eads and Cornelius both stated in
their affidavits that the subpoena for Daniel was issued on May 16, 2011. Eads
stated in his affidavit that he attempted to serve the subpoena on Daniel at Daniel’s
residence on May 16, 2011, and that either he or Cornelius attempted to serve
Daniel at Daniel’s residence on May 17, May 18, May 19, May 20, and May 22.
Eads also stated that he also attempted to serve Daniel at Daniel’s residence on
May 23 or May 24. Cornelius stated in her affidavit that she attempted to serve a
subpoena on Daniel at his residence on May 18, May 19, May 22, and May 23.
      The record shows that Appellant was aware of problems securing Daniel’s
appearance at trial the week before trial. Because Appellant was aware of the
problems before trial, he cannot demonstrate that Daniel’s absence was an
“unexpected occurrence since the trial began, which no reasonable diligence could
have anticipated” or that Appellant was “so taken by surprise” that he could not
have had a fair trial. CRIM. PROC. art. 29.13. We conclude that the trial court did
not abuse its discretion when it denied Appellant’s motion for continuance.
      Additionally, a trial court may properly deny a motion for continuance if the
evidence does not indicate a probability that the witness can be secured by a
postponement or if it appears that a continuance due to the absence of the witness
would delay the trial indefinitely. Varela v. State, 561 S.W.2d 186, 191 (Tex.
Crim. App. 1978); Rodriguez v. State, 21 S.W.3d 562, 565–66 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d). Appellant did not present evidence that he
could secure Daniel’s presence at trial if the trial court granted a continuance.
Nothing in the record indicates that there was a probability that Daniel could be
secured as a witness by a postponement or that the trial would not have been
                                         17
delayed indefinitely had the trial court granted a continuance. For this additional
reason, we conclude that the trial court did not abuse its discretion when it denied
Appellant’s motion for continuance.           Appellant’s second point of error is
overruled.
                         Appellant’s Motion for New Trial
      Appellant filed a motion for new trial based on grounds of (1) newly
discovered evidence and (2) a material defense witness, Daniel, being kept away
from the trial by fraud. The record does not show that Appellant presented the
motion to the trial court. The motion was overruled by operation of law. In his
third point of error, Appellant contends that the trial court erred by its failure to
grant his motion for new trial.
      We review a trial court’s denial of a motion for new trial under an abuse of
discretion standard. Keeter v. State, 74 S.W.3d 31, 37 (Tex. Crim. App. 2002). On
appeal, Appellant contends that he was entitled to a new trial based on newly
discovered evidence.     A new trial shall be granted when material evidence
favorable to the accused has been discovered since trial. TEX. CODE CRIM. PROC.
ANN. art. 40.001 (West 2006). To meet the statutory requirement of materiality set
forth in Article 40.001, a defendant must show (1) the evidence was unknown or
unavailable to him at the time of trial; (2) his failure to discover or to obtain the
evidence was not due to lack of diligence; (3) the new evidence is admissible and
not merely cumulative, corroborative, collateral, or impeaching; and (4) the new
evidence is probably true and will probably bring about a different result on
another trial. Keeter, 74 S.W.3d at 36–37. If an appellant fails to establish any one
of these prongs, he fails to establish an abuse of discretion by the trial court in
denying the motion for new trial. Jones v. State, 234 S.W.3d 151, 157 (Tex.
App.—San Antonio 2007, no pet.).


                                         18
      The trial court determines the credibility of the witnesses and whether the
new evidence is probably true. Keeter, 74 S.W.3d at 37. The “probably true”
requirement may be satisfied when the whole record presents no good cause to
doubt the credibility of the witness whose testimony constitutes the new evidence.
Id. at 38 (quoting Jones v. State, 711 S.W.2d 35, 36 (Tex. Crim. App. 1986)).
      Appellant filed an affidavit of Samantha Jurado in support of his newly
discovered evidence claim. In the affidavit, Jurado, who was twenty-six years old,
stated, “[Appellant] was married to my mother and was my step-father.” Jurado
did not identify her mother by name in the affidavit. Jurado stated that she had a
younger sister, Priscilla, who was eleven years old in August 2010. Jurado also
stated that Appellant is Priscilla’s father.
      According to Jurado, M.M. called Priscilla shortly after Appellant was
arrested in this case. Jurado stated in the affidavit that Priscilla asked her whether
she should speak with M.M. Jurado stated that she told Priscilla, “Yes.” Jurado
then turned on the speaker on Priscilla’s cell phone so that she could hear what
M.M. said. Jurado stated that, during the call, M.M. told Priscilla that, on August
14, M.M.’s mother, Melissa, saw the hickey on her neck and got mad at her.
According to Jurado, M.M. also told Priscilla that M.M.’s boyfriend gave her the
hickey and that M.M. made up a story that Appellant gave her the hickey because
she wanted to continue to see her boyfriend. M.M. also told Priscilla that she was
sorry she blamed Appellant for giving her the hickey.
      Jurado stated in her affidavit that she told her mother about what M.M. told
Priscilla in the above conversation and that, in response, her mother told her that
she did not want Priscilla to be involved in the case because of her age. Jurado
understood her mother’s statement to mean that she should not tell anyone about
what M.M. told Priscilla.       Jurado also stated that, at the time of giving her
affidavit, she knew “the issue involving the hickey was a big issue in the trial” and
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that, therefore, she realized “[she] should have said something to [Appellant’s]
attorney.”
      On this record, the trial court could have reasonably concluded that
Appellant’s new evidence was merely impeachment evidence that would be used
in an attempt to discredit M.M.’s testimony that Appellant gave her the hickey.
Additionally, as the judge of Jurado’s credibility and of the statements in Jurado’s
affidavit, and based on the evidence at trial, including the DNA evidence, the trial
court could have reasonably concluded that Appellant failed to show that Jurado’s
affidavit testimony was probably true or that her testimony would bring about a
different result in a new trial. Therefore, the trial court did not abuse its discretion
when it allowed Appellant’s motion for new trial based on the ground of newly
discovered evidence to be overruled by operation of law.
      Appellant also contends that he was entitled to a new trial on the ground that
a material defense witness, Daniel, was kept away from court by fraud committed
by Melissa. A defendant must be granted a new trial “when a material witness has
been kept away by force, threats or fraud.”          TEX. R. APP. P. 21.3(e).      The
underlying rationale for the fraud provision in this rule is “to provide relief in those
rare instances in which a material defense witness is deceived or tricked into not
appearing in court.” Rodriguez, 21 S.W.3d at 567.
      As stated above, Appellant filed affidavits of Eads and Cornelius in support
of his motion for new trial. In the affidavits, Eads and Cornelius detailed their
numerous but unsuccessful efforts to serve a subpoena on Daniel at his residence.
Eads stated in his affidavit that he talked with Melissa at the residence on May 16.
Eads told Melissa that he was there to serve a subpoena on Daniel in the criminal
case involving Appellant. According to Eads, Melissa “smirked” at him and told
him that she would tell Daniel that Eads had come by when Daniel got off work,
which would be sometime after 7:30 p.m. Eads gave Melissa his cell phone
                                          20
number, and Melissa told him that she would have Daniel call him when he got
home from work.       Melissa told Eads that Daniel spoke Spanish.        Eads gave
Melissa the telephone number of Cornelius, who spoke Spanish. Eads stated that
neither he nor Cornelius received a return call from Melissa or Daniel.
      Eads stated that he went back to the residence on May 21. At that time, he
spoke to Melissa. Melissa told him that she did not know where Daniel was, where
he worked, or when he would return. Eads stated that he went back to the
residence on May 23 or May 24. At that time, he talked with an older man. The
man told Eads that Daniel did not live at the residence. Cornelius stated in her
affidavit that she went to Daniel’s residence on May 23. At that time, Cornelius
spoke to Melissa. Cornelius stated that Melissa denied that she knew where Daniel
was, where he worked, or when he would return.           Cornelius also stated that
Melissa demanded that she immediately leave the property. Eads and Cornelius
believed that Melissa deceived them, concealed Daniel’s whereabouts from them,
and obstructed their efforts to serve Daniel with a subpoena.
      The affidavits of Eads and Cornelius might be sufficient to establish that
Melissa did not cooperate with them in their efforts to serve Daniel. However, the
affidavits do not contain any evidence that Melissa engaged in any conduct, much
less fraudulent conduct, to deceive or to trick Daniel into not appearing at
Appellant’s trial. Daniel may not have wanted to appear at the trial. Appellant has
not met his burden under Rule 21.3(e) to show that acts or omissions on the part of
Melissa constituted fraud that prevented Daniel from appearing in court.
Rodriguez, 21 S.W.3d at 567. The trial court did not abuse its discretion by failing
to grant Appellant’s motion for new trial that was based on Rule 21.3(e).
Appellant’s third point of error is overruled.




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                                   This Court’s Ruling
      We affirm the judgments of the trial court.




                                                     TERRY McCALL
                                                     JUSTICE


September 30, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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