                                  NO. 07-02-0124-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                 NOVEMBER 19, 2002

                         ______________________________


                              ABEL REYNA, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2001-437868; HONORABLE JIM BOB DARNELL, JUDGE

                        _______________________________

Before REAVIS and JOHNSON, JJ., and BOYD, SJ.1


      Appellant Abel Reyna brings this appeal from his conviction for the felony offense

of aggravated sexual assault and the jury-assessed punishment, enhanced by two prior

convictions, of life imprisonment in the Institutional Division of the Texas Department of



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      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2002).
Criminal Justice. His appeal is predicated on two evidentiary rulings of the trial court

which, he argues, require reversal of his conviction. Disagreeing, we affirm.


      The facts giving rise to appellant’s prosecution began on the evening of September

24, 2001, when appellant approached the complainant and a group of her friends at a

restaurant and bar in Lubbock. Appellant and his nephew went with the group to one of

the party’s apartment. After about an hour, the complainant went with appellant and his

nephew to get alcohol. The nephew drove the car to a house, where he got out of the car

and appellant moved to the driver’s seat. According to the complainant, appellant drove

to a deserted road where he ordered her to the back seat of the car and raped her.


      On the return to town, appellant asked the victim if she wanted to stop somewhere

to eat and offered her cocaine, which she declined. When appellant stopped at the

apartment complex where her car was, she unsuccessfully requested appellant’s phone

number and gave her phone number, assertedly in an attempt to later locate him for police.


      The following day, Officers Chris Breunig and Tal English went to the apartment

where appellant lived with his parents, Jose and Dominga Reyna, to serve an arrest

warrant. They arrested appellant and placed him in a police car. They also saw a 1991

Pontiac matching the description of appellant’s car given by the victim. This car belonged

to appellant’s parents. Jose gave verbal consent to Breunig to search the car. Breunig

went to his car to get a written consent form for Jose to sign. While outside, appellant

tapped or hit the police car’s window to get his father’s attention, then told Jose, in


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Spanish, not to sign anything. Jose then withdrew his consent to search the car. The

officers honored this request, but took several photographs of the outside of the car and

the inside through its windows.


       At trial, appellant objected to any evidence of his communication to Jose. The

overruling of this objection forms the basis of appellant’s first point of error. The State

initially argues that appellant failed to preserve any error because his trial objection was

that the evidence was not relevant, but his argument on appeal is that admission of the

evidence violates his rights guaranteed by the fourth and fifth amendments to the United

States Constitution. We agree there may be some difference between the objection as

stated at trial and the emphasis of appellant’s argument on appeal. However, in the

interest of justice, we will consider his argument on appeal.


       Appellant’s argument in support of this point relies on the well-established

proposition that the State may not use evidence obtained directly or indirectly as a result

of violation of the fourth amendment. See, e.g. United States v. Calandra, 414 U.S. 338,

347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). That rule is inapplicable where there was no

violation of a constitutional right. Here, appellant has failed to identify any such violation.


       It is undisputed that the officers did not have a search warrant for the car. Nor were

the common exceptions to the warrant requirement applicable; appellant was not arrested

in the car, and there were no exigent circumstances. See, e.g., Reyes v. State, 910

S.W.2d 585, 589 (Tex.App.--Amarillo 1995, pet. ref’d) (discussing exceptions to the


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warrant requirement). Their right to search depended solely on the owner’s consent. The

officers’ conduct in asking for that consent was not illegal, and when the consent was

withdrawn, the officers abandoned their efforts to search the car, limiting themselves to a

permissible exterior examination of it. It is also undisputed that appellant’s statement was

not the result of custodial interrogation. The record shows the police scrupulously honored

the parties’ constitutional rights and the statement at issue was not the result of illegal

police conduct. We overrule appellant’s first point.


       In his second point, appellant assigns error to the trial court in admitting evidence

that he had offered cocaine to the victim of the assault. He objected to the testimony on

the basis that it was irrelevant and was an extraneous offense not disclosed by the

prosecution. Citing Rules of Evidence 401 and 403, appellant argues the evidence was

inadmissible because it was not probative of any element of the offense.


       The State presents three arguments in response: first, the evidence of appellant’s

attempt to “forcefully drug the victim” after the assault was relevant to his intent because,

as the State contends, it would make her less likely to report the assault and make her less

credible if she did report the offense; second, it was “same transaction contextual

evidence” of an event so integral to the offense that it was necessary for the jury to

understand the context and circumstances of the offense, and third, even if inadmissible,

any error was harmless. Because contextual evidence must also meet the relevancy

requirement of Rule 401, we consider the State’s first two arguments together.



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       We initially note the record does not support the State’s characterization of the

evidence as an attempt to “forcefully drug” the complainant. The relevant testimony was

that when appellant was driving back into town with the victim he pulled a small bag with

white powder from the center console of the car and “asked me if I wanted some of it, and

I said no . . . he said it was cocaine, and he shoved it in my face.” After she declined a

second time, appellant threw the bag on the floor. The victim never characterized

appellant’s conduct in offering the cocaine as “forceful.”


       In Rogers v. State, 853 S.W.2d 29 (Tex.Crim.App. 1993), the court considered the

admissibility of same transaction contextual evidence. Such evidence must meet both the

relevancy requirement of Rule 401 and for a purpose permitted by Rule 404(b). In that

case, the evidence at issue concerned appellant’s possession of marijuana in a

prosecution for possession of methamphetamine. Id. at 32. The State advanced the

argument that the evidence was relevant because the marijuana possession “could

arguably make it more probable” that he would possess methamphetamine. Id. While

expressing reservations about the relevance of the evidence, the court held it was not so

clearly irrelevant as to justify substitution of its judgment on the issue for that of the trial

court. Id.


       The lesson of Rogers is that when reviewing the relevance of contextual evidence,

the proponent can satisfy his burden to show relevance by presenting a rational basis on

which the evidence can make a fact at issue more likely than it would be without the



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evidence. Like the court in Rogers, we are not convinced the relevance of the evidence

at issue to the charged offense is immediately apparent. However, the State’s rationale

could be accepted by a reasonable trier of fact. Therefore, we cannot say the trial court

abused its discretion in finding it relevant.


       The evidence must also be offered for a purpose other than showing the person

acted in conformity with a trait or character. Tex. R. Evid. 404(b). Same transaction

contextual evidence is admissible as an exception to Rule 404(b) when it is necessary to

the jury’s understanding of the offense. Rogers, 853 S.W.2d at 33. Only if the facts of the

instant offense would make little or no sense without also bringing in the same transaction

contextual evidence should that evidence be admitted. Id.


       In support of the second element set out in Rogers, the State contends: “the

evidence of appellant’s attempt to drug the victim imparts to the trier of fact information

essential to understanding the context and circumstances of events which, although legally

separate offenses, are blended or interwoven.” It cites Mays v. State, 816 S.W.2d 79

(Tex.Crim.App. 1991) in support, but offers no discussion or argument explaining why the

evidence was essential to an understanding of the events. It is important to note that in

Mays, the Court of Criminal Appeals held the context evidence was erroneously admitted

because it “also possessed a character component.” Id. at 88. As noted above, the

evidence at issue here was arguably relevant but, like that in Mays, it also contained a

substantial component indicating appellant’s character and its absence would not have



                                                6
made the facts of the offense nonsensical. We hold the trial court erred in admitting the

evidence that appellant offered cocaine to the victim.


       We must next determine whether this error requires reversal of the trial court’s

judgment, or whether it was “harmless.” Appellant concedes that an error of this type is

a non-constitutional error governed by Rule 44.2(b) of the Rules of Appellate Procedure.

That rule requires us to disregard any error that does not affect a substantial right. A

substantial right is affected when, after an examination of the entire record, the error had

a substantial and injurious effect or influence in determining the jury’s verdict. King v.

State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).


       It is well established that we must consider the record as a whole in determining

whether an error is harmless. Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App. 2001).

This means that the appellate court should consider everything in the record, including

testimony and physical evidence, the nature of the evidence supporting the verdict, and

the character of the error and its relationship to other evidence. Id. It was undisputed that

appellant and the complainant had intercourse.         In addition to her identification of

appellant, the State presented an expert witness who opined that DNA taken from an

article of the complainant’s clothing matched appellant’s DNA.          This evidence was

uncontroverted. Therefore, appellant’s identity was not disputed. When the State sought

to present the testimony from the victim of another attack to establish lack of consent, the

court found the defense had not opened the door on that issue and excluded the



                                             7
testimony. The gist of appellant’s defense was to identify apparent inconsistencies in the

versions of events as reported by the victim and police reports. In closing argument, the

State briefly mentioned the offer of cocaine.


       Our review of the entire record convinces us that the improperly admitted evidence

did not have a substantial injurious effect on the jury’s ability to reach a verdict based on

the evidence establishing the elements of the offense. We overrule appellant’s second

and final point and affirm the judgment of the trial court.



                                                  John T. Boyd
                                                  Senior Justice

Do not publish.




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