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IN THE
TENTH COURT OF APPEALS
 

No. 10-95-017-CR

Â Â Â Â Â Â Â Â BRYAN KEITH JOHNSON,

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellant
Â Â Â Â Â Â Â Â v.

Â Â Â Â Â Â Â Â THE STATE OF TEXAS,

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Appellee
 

From the 54th District Court
McLennan County, Texas
Trial Court # 94-497-C
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

SUPPLEMENTAL OPINION ON PETITION 
FOR DISCRETIONARY REVIEW
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 

Â Â Â Â Â Â Â Â Â Â Our original opinion was issued on August 14, 1996.  Johnson v. State, 933 S.W.2d 195
(Tex. App.âWaco 1996, pet. filed).  The State's Petitions for Discretionary Review assail us for
failing to consider its assertion that the testimony about S.M.'s prior sexual activity was properly
excluded because of Rule 403.  Tex. R. Crim. Evid. 403.  We offer the following explanation as
allowed by Rule 101.  Tex. R. App. P. 101.
Â Â Â Â Â Â Â Â Â Â We reject the Rule 403 assertion for several reasons.  First, the State's motion in limine,
filed before trial in an attempt to keep the testimony in question from the jury, does not mention
Rule 403.  Second, the State made no Rule 403 objection when the testimony was adduced outside
of the presence of the jury.  Two references to the testimony being "prejudicial" are the closest
that the record comes to such an objection.  See Montgomery v. State, 810 S.W.2d 372, 388 (Tex.
Crim. App. 1991) (on rehearing) ("Further objection based upon Rule 403 is now required."). 
Third, we review rulings of the trial court,
 and the court made no attempt to balance the probative
value of the testimony against the danger of unfair prejudice, confusion of the issues, or any other
factor listed in Rule 403.  Tex. R. Crim. Evid. 403.  Fourth, the matter was barely mentioned
in the State's brief on original submission.  In fact, the entire presentation of the Rule 403
argument is contained in seven lines at page 14 of the State's Brief and includes no analysis.
Â Â Â Â Â Â Â Â Â Â We might have considered the provisions of Rule 403 in conducting the harm analysis. 
We determined that the court erred in failing to allow relevant evidence of prior sexual activity
of the prosecutrix, then determined that the error had harmed Johnson because the erroneous
ruling denied him evidence of a statutory defense provided by the legislature.  Johnson, 933
S.W.2d at 203.  Had we inserted a Rule 403 factor into the harm equation, we would have reached
the same result, i.e., that exclusion of the evidence required reversal because of the absence of the
defensive theory from the jury's deliberations.  Harris v. State, 790 S.W.2d 568, 587-88 (Tex.
Crim. App. 1989); Tex. R. App. P. 81(b)(2).  Applying the factors set out in Montgomery to our
harm analysis, we find initially that the "approach under Rule 403 is to admit relevant evidence
unless the probative value of that relevant evidence is substantially outweighed by the danger of
unfair prejudice . . . ."  Montgomery, 810 S.W.2d at 389.  Johnson's need for the testimony to
raise the defense of promiscuity was greatâno other evidence of promiscuity is in the record.  The
State has not demonstrated how the testimony is unfairly prejudicial to it, particularly in light of
the fact that the defense to which the testimony was relevant was a statutory defense.  Indeed, the
State did not argue that the testimony was "unfairly prejudicial," as stated in the Rule; only that
it was "prejudicial."  Additionally, the rule requires that the unfair prejudice substantially
outweigh the probative value of the proffered testimony.  Tex. R. Crim. Evid. 403.  For these
reasons, we would have reached the same conclusion about harm, had we considered a properly
presented Rule 403 argument.
Â Â Â Â Â Â Â Â Â Â Finally, the State argues that the defense of promiscuity is not consistent with Johnson's
theory of the case, as demonstrated by his testimony that he "was elsewhere in the school
building."  We review a trial court's evidentiary rulings as of the time that the court made the
ruling.  The court excluded testimony about the prosecutrix' prior sexual activity during the State's
case-in-chief.  Johnson had not elected to testify as of that point in time.  Further, we allow
defendants to submit defensive theories alternatively.
Â Â Â Â Â Â Â Â Â Â With these additional comments, we reaffirm our original position that the judgment in this
case be reversed and a new trial ordered.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â BILL VANCE
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Before Chief Justice Davis,
Â Â Â Â Â Â Â Â Â Â Justice Cummings, and
Â Â Â Â Â Â Â Â Â Â Justice Vance
Â Â Â Â Â Â Â Â Â Â (Justice Cummings dissents without further opinion)
Opinion delivered and filed February 5, 1997
Publish

fy;text-indent:.5in;line-height:200%'>As we have noted, in a legal sufficiency review,
we do not resolve conflicts of fact or assign credibility to the witnesses, and
inconsistencies in the evidence are resolved in favor of the verdict.  See
Curry, 30 S.W.3d at 406; Dewberry, 4 S.W.3d at 740.Â  Applying this
standard, we find that a rational jury could have credited the evidence showing
that Jason lived at 1321 Spring Street and disregarded the contrary evidence to
find that he exercised joint control over the cocaine and the gun and find him
guilty beyond a reasonable doubt.Â  Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2789; Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (We
are in the position of a final, due process safeguard, ensuring only the
rationality of the fact finder.); Cude, 716 S.W.2d at 47. Â We thus
reject his contentions that the evidence is legally insufficient.
Â Â Â Â Â Â Â Â Â Â Â  Related to factual sufficiency, our
task is to review the evidence weighed by the jury that tends to prove the
existence of the elemental fact of knowing possession and compare it with the
evidence that tends to disprove that fact.ÂÂ  Johnson, 23 S.W.3d at 7.Â 
Again, we do not indulge in inferences or confine our view to only the evidence
favoring one side of the case.Â  Rather, we look at all the evidence on both
sides and then make a predominantly intuitive judgment.Â  Id.Â  Utilizing
this standard in a neutral review, we cannot find that the evidence demonstrates either that the proof tending to show
that Jason was affirmatively linked to the cocaine and the gun is so weak or
that conflicting evidence that he had little connection to the residence is so
strong as to render the juryÂs verdict clearly wrong and manifestly unjust. Â Watson,
204 S.W.3d at 414-15; see also Bollinger, 224 S.W.3d at 774-75; Brown,
911 S.W.3d at 747.Â  Thus, we reject JasonÂs factual sufficiency complaints.
Â Â Â Â Â Â Â Â Â Â Â  We overrule issues one and two.


CONCLUSION
Â Â Â Â Â Â Â Â Â Â Â  Having rejected JasonÂs issues, we
affirm the judgment.
Â 
Â 
BILL VANCE
Justice
Â 
Before
Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion
delivered and filed August 1, 2007
Do
not publish
[CR25]



[1]
Kevin identified a bill in JasonÂs name from
the city of Waco for water and sewer service at the residence.Â  He said he gave
Jason the money to turn the lights, water, sewer, and cable service on and that
the phones were in his cousinÂs name.
Â 


