                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00491-CR


TROY BERNARD STOKER JR.                                               APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


                                      ----------

       FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                      ----------


       This is an appeal from a conviction for aggravated sexual assault of a child

under fourteen years of age, wherein the jury assessed punishment at forty

years’ confinement. In two points of error, Appellant Troy Bernard Stoker Jr.

challenges the trial court’s decision to proceed to trial with eleven jurors and the

trial court’s exclusion of evidence of reputation for truthfulness of a witness. We

will affirm.

       1
        See Tex. R. App. P. 47.4.
                                     FACTS

      Though there is no challenge to the sufficiency of the evidence, certain

salient facts need to be shown in order to dispose of issues raised by Appellant.

Appellant was in a relationship with Shawna Owens, K.D.’s mother. Appellant

and Shawna had one child together. Even after the two broke up, Appellant

continued to babysit K.D. and Troy, Jr., and the children regularly stayed with

Appellant.   Another girlfriend of Appellant, Michelle Woods, was talking with

Shawna at Appellant’s apartment. After the conversation, Shawna asked K.D. if

Appellant had inappropriately touched her. K.D. responded in the affirmative,

and both Shawna and Michelle reported the touching to the police. The evidence

shows that a few days after the alleged touching incident, K.D. was interviewed

by CPS workers, and she denied being abused by Appellant. No physical

evidence of abuse was found, and no DNA was collected.

      Appellant argued that there was a frame-up, that Shawna Owens was

jealous of Michelle Woods, that there was evidence that Shawna stated she

wanted to “stab” Appellant, and that she wanted to ”get him.” The evidence also

suggests that Appellant was dating Michelle and Shawna at the same time, and

that he was living in the apartment of yet another woman, Denise Harris, when

K.D. was allegedly assaulted in that apartment.

                             POINT NUMBER ONE

      Appellant contends that the trial court improperly concluded that juror # 20,


                                        2
John Nguyen, was disabled under the law, and excluded the juror erroneously.

On the third day of trial, Nguyen told the trial court that he could no longer serve

as a juror because 1) he was losing too much income and 2) he had difficulty

understanding the testimony because of his lack of understanding the English

language. The trial court ultimately excused Nguyen from the jury, and the trial

proceeded with eleven (11) jurors.

      Appellant contends that Nguyen was not disabled under article 36.29 of

the code of criminal procedure because he indicated that he could listen to the

testimony and would put out of his mind his loss of income. See Tex. Code Crim

Proc Ann. art. 36.29 (West 2010). Although Appellant cites a pair of cases for

our consideration, there is a threshold matter to be examined. The State

contends that if there is indeed error in proceeding to trial with eleven jurors in

this case, that error was invited by Appellant. We agree.

      The record reflects that there was a conference in open court between the

trial court, Appellant and his counsel, and the State. The trial court voiced its

concerns about the fitness of Nguyen to continue to serve on the jury. Counsel

for Appellant made it known to the trial court that he and his client did not want

Nguyen to serve on the jury, and they preferred to finish the trial with eleven

jurors. Subsequently, a written document was signed and entered of record in the

trial. In the document, all parties agreed to finish the trial with eleven jurors, and

indeed, the trial court sought and received the personal permission of Appellant

to so proceed. All parties signed this written document, which is a part of the


                                          3
clerk’s record.

      In Woodall v. State, 336 S.W.3d 634 (Tex. Crim. App. 2011), the defendant

was offered an opportunity by the trial court to secure the presence of a

recalcitrant witness by writ of attachment for cross-examination purposes, but the

defendant declined the offer. Then, on appeal the defendant complained that he

had been denied the right to cross examine the absent witness. The court of

criminal appeals held that the law of invited error provides that a party cannot

take advantage of an error that is invited or caused, even if such error is

fundamental. Id. at 644, (quoting Prystash v. State, 3 S.W.3d 522, 531 (Tex.

Crim. App. 1999) (en banc). In other words, a party is estopped from seeking

appellate relief based on error that it induced. Prystash, 3 S.W. 3d at 531. “To

hold otherwise would be to permit [an appellant] to take advantage of his own

wrong.” Id. at 531.

      In the instant case, Appellant not only joined the State in agreeing to

discharge the juror, but also specifically informed the trial court that Nguyen was

objectionable to him. Given these facts, Appellant is estopped from asserting a

claim that Nguyen should not have been discharged by the trial court under

article 36.29. A jury can proceed to verdict with eleven jurors if the defendant

consents to same. See Ex Parte Garza, 337 S.W.3d 903, 911—12 (Tex. Crim.

App. 2011) (citing Hatch v. State, 958 S.W.2d 813, 815-16 (Tex. Crim. App.

1997). Appellant’s first point is overruled.

                                POINT OF NUMBER TWO


                                          4
      In two, Appellant contends that the trial court erred by excluding evidence

of Shawna Owens’ reputation for truthfulness under Texas Rule of Evidence 608.

During the trial, Appellant attempted to ask witness Laverdia Harris during direct

examination, “Do you think Shawna Owens is the type of person to bring this

up?” The State objected and the trial court sustained the objection. The

implication by Appellant’s line of questioning is that Shawna Owens fabricated

the allegation of sexual assault and also convinced the victim to falsely accuse

Appellant of sexual assault.    Rule 608(a)(1) provides that the credibility of a

witness may be attacked or supported by evidence in the form of opinion or

reputation, but subject to these limitations: 1) the evidence may refer only to

character for truthfulness or untruthfulness. Tex. R. Evid. 608(a)(1). We believe

that even if we assume arguendo that error was committed by the trial court in

excluding legally admissible evidence under Rule 608(a)(1) , any such error was

harmless on the facts of this case.

      The rule as stated by our court of criminal appeals is that overruling an

objection to evidence will not result in reversal when other such evidence was

received without objection, either before or after the complained-of ruling. The

rule applies whether the other evidence was introduced by the defendant or the

State. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see also

Coble v. State, 330 S.W.3d 253, 282, n. 82 (Tex. Crim. App. 2010); Valle v.

State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003).

                          APPLICATION OF LAW TO FACTS


                                        5
      In applying the rule from Leday, we must examine the whole record to

determine if this evidence was admitted elsewhere without objection during the

trial. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). In cross-

examination, Laverdia Harris was asked by the State about a conversation Harris

had with Shawna Owens. The conversation concerned child support owed by

Appellant to Owens, viz:

      [PROSECUTOR]…The conversation with Shawna Owens late August,
      early September, what was the circumstances of that conversation?

      [LAVERDIA HARRIS] Child support, and she said she’s gonna get him.

      Q. Did she say she’s gonna to get money or get him?

      A. No. Get him.

      ….

      Q And then on August 26, 2010, I asked you again, I said, “Why would
      [K.D., victim] be saying these things,” and this time you told me because
      you think her mom (Owens) put her up to this. Do you remember that?

      A. Yeah.

      Q. Okay.

      A. I still feel that way.

      Q. Okay, now, when I asked you in February of 2010, you said you didn’t
      know why these things were coming out, correct?

      A. Correct.

      Q. And when I asked you in August of this year and then today, just so
      we’re clear, are you telling me that now you think it’s because Shawna put
      her up to this?

      A. Yes.


                                       6
And in a similar vein, when questioned by Appellant, Michelle Woods opined

thusly:

      [DEFENSE COUNSEL] Now, we’ve also talked before, is that correct?

      [MICHELLE WOODS] That’s correct.

      Q. And when I asked you—I asked you one time before, do you think
      Shawna was the kind of person that set this up?

      A. Uh-huh.

      Q. What do you think?

      A. I’d say, “Yeah she could.”

      ….

      Q. And you also said you think Shawna is the kind of person that would set
      this up.

      A. Yes, I did say that.

      Q. Why do you think that?

      A. Just by what Troy told me of how their relationship was, the kind of
      person—she’s vindictive, basically.

      Two things are evident from the testimony of Laverdia Harris and Michelle

Woods.     First, the Appellant’s theory of the case was that Shawna Owens

engaged in a frame-up of Appellant, by soliciting untruths from K.D. concerning

alleged sexual assaults by Appellant. Secondly, Woods was of the opinion that

Owens had a motive to fabricate, i.e., Appellant’s relationship with her (Woods).

It seems clear from this testimony that Appellant was fully able to accomplish his

goal through the testimony set out above. Even assuming the trial court was in



                                        7
error in excluding the relevant testimony of Harris, the error, if any, was harmless

in that it did not affect the substantial rights of Appellant. Tex. R. App. P. 44.2(b).

Appellant’s second point is overruled.

      The judgment of the trial court is affirmed.



                                                     PER CURIAM


PANEL: CHARLES F. CAMPBELL (Senior Judge, Retired, Sitting by
Assignment); WALKER; and MCCOY, JJ.

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

DELIVERED: September 22, 2011




                                          8
