Opinion filed May 22, 2014




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-12-00102-CR
                                    __________

                   BLAINE JASON KINSEY, Appellant

                                         V.

                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 13th District Court

                                Navarro County, Texas

                             Trial Court Cause No. 33,117


                     MEMORANDUM OPINION
      The jury found Blaine Jason Kinsey guilty of sexual assault and assessed
punishment at confinement for ten years and a fine of $10,000. See TEX. PENAL
CODE ANN. § 22.011 (West 2011). The trial court suspended the imposition of the
sentence and placed Appellant on community supervision for ten years.                 We
affirm.
      Appellant raises four issues on appeal but does not challenge the sufficiency
of the evidence. Nevertheless, because we find that the trial court erred in the
admission of certain evidence, we will review the testimony and evidence in some
detail for use in our harm analysis.
          S.C. reported that, in the evening hours of May 2, 2010, Appellant sexually
assaulted her. S.C. testified that she was twenty-eight years old. She was married,
but she and her husband had been separated for five years. S.C. and her husband
were the parents of three children; the children lived with their father.
      S.C. told the jury that she first met Appellant in April 2010. She was living
with her cousin Zach and his wife Amanda at that time. Tim Kristin was Zach and
Amanda’s next-door neighbor. On the day that Appellant and S.C. first met, S.C.
was visiting at Tim’s house and Appellant stopped by. The full extent of S.C.’s
testimony about the remainder of that evening is that, later in the evening,
Appellant gave her his cell phone number and told her that, if she “wanted to hang
out or anything[,] that [she] could call him.” Contrary to Appellant’s description
of the events of that first meeting, she, in effect, told the jury that it was not until a
few days later that she first went to Appellant’s house. She also testified that she
never had consensual sex with Appellant.
      Appellant’s version of what transpired on the night of that first meeting is
somewhat different, as are Appellant and S.C.’s versions of what happened
between that first meeting in April and their last meeting in the evening hours of
May 2, 2010. Appellant testified that at the time of the incident made the basis of
this case, he was a paramedic for the City of Mexia. Appellant was divorced. His
ex-wife, the mother of his children, had custody of the children, and Appellant had
standard visitation rights with them.

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      The first weekend in April 2010 at the end of a visitation period, Appellant
returned the children to their mother around 6:00 or 6:30 in the evening.
He testified that after he dropped his children off with their mother, he passed by
his friend Tim’s house.     Tim and a friend, Terry, were sitting outside, and
Appellant stopped. While Appellant was there, a young lady came out of Tim’s
house; she was introduced to Appellant as S.C. They all sat around and visited and
drank beer for about one or one and one-half hours. At some point in time, Terry
left, Tim had to finish mowing, and Appellant and S.C. continued to visit.
      Appellant testified that as he and S.C. were visiting, Appellant asked her
whether she wanted to go get something to eat, have drinks, or “even go . . . to my
house and watch a movie.” According to Appellant, S.C. told him that she had
rather go to his house because it would be cheaper on both of them. He walked her
to Amanda’s house and visited with Amanda and Zach while S.C. went into the
house and changed clothes. S.C. came out of the house in about thirty minutes,
and they left and went to Appellant’s house.
      According to Appellant’s testimony about that first meeting, when he and
S.C. got to his house, they sat outside and drank beer, listened to music, and talked
for about an hour. Their conversation advanced from “flirtatious” to sexual. He
testified that at one point in time, S.C. looked at him and asked him what was on
his mind. He asked her whether she really wanted to know, and when she said that
she did, he leaned in and kissed her; she kissed him back. Appellant told the jury
that at some point in the conversation that night S.C. told him that she did not wear
underwear and that he took that as a sexual advance toward him. They went into
the house.
      After they went inside, Appellant got some beer from the refrigerator, and
they began to watch a movie. About fifteen to twenty minutes into the movie,
Appellant said that he and S.C. “started kissing and fondling one another.” In the

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process, he removed her shirt and asked her whether “she wanted to carry this any
further? If she wanted to go back to the bedroom and she immediately got up and
walked back to my bedroom.” They went to the bedroom and removed their
clothing, and according to Appellant, he started “performing oral sex on her.”
Appellant’s testimony was that they then “had sex” for thirty-five to forty-five
minutes and, after about thirty minutes of conversation, “had sex again.” S.C.
stopped him during the second time because she thought that he had torn her in the
vaginal area. He looked, and they both had some blood on them. They cleaned
each other up, got dressed, and returned to the living room; they watched TV for a
while and talked. S.C. decided it was time for her to go, and Appellant took her
home.
        On cross-examination by the State, Appellant testified that he asked S.C.
whether it was okay to not wear a condom and that S.C. said it was okay. Contrary
to S.C.’s testimony that Appellant gave her his cell number at that first meeting
and then left, Appellant told the jury that within two to three hours after he and
S.C. first met, they had oral sex as well as consensual sexual intercourse and that
he ejaculated into her.
        Some few days after that first meeting at Tim’s house, according to S.C.’s
testimony, she texted Appellant and asked him whether he wanted to go hear
Amanda sing; he agreed. S.C. testified that it turned out that Amanda was not
going to sing until later that evening and that S.C. and Appellant went to his house
to watch a movie and hang out until time for Amanda to sing.
        Amanda testified that, on occasion, she would sing in public with a friend.
Per arrangements between S.C. and Appellant, Amanda took Appellant and S.C.
with her to a place called “Fat Daddy’s” in Waxahachie; she was to sing at “Fat
Daddy’s.” According to Appellant, they were there a few hours, drinking beer and
listening to people sing, and then they left. Amanda testified that on the way back

                                         4
to her house, they stopped by a Taco Bell to get something to eat; that, when they
got back to her house, she went inside; and that Appellant and S.C. stayed outside.
Amanda also testified that S.C. came in and asked whether Appellant could come
in and hang out a while. Amanda told her that it was too late. S.C. went outside to
tell Appellant; he left and S.C. came in.
      Appellant’s version of the events of the days after their first meeting is that
he and S.C. communicated by text message and by phone calls. On April 12, he
was at work when S.C. asked him whether he wanted to get together with her the
next day, his day off; that was also the day that they were going to hear Amanda
sing. He did, and he picked her up around noon that next day. They went to his
house to finish watching the movie they had started watching earlier. Appellant
testified that they did not have sex that day. After the movie, Appellant and S.C.
went to Amanda’s house. Appellant, S.C., and Amanda rode in Amanda’s vehicle
from there to Fat Daddy’s in Waxahachie, the place where Amanda was supposed
to sing.
      There were different versions about what happened after they returned to
Amanda’s from Fat Daddy’s. We have already related Amanda’s testimony about
the events that occurred after they had returned to her house.
      S.C. recalls that the evening ended differently than the testimony from
Appellant would indicate. S.C. testified that Appellant asked her to go home with
him and also asked whether she wanted to do something else. She told him that
she was going inside and going to bed, and that is what she did; he went home.
      On the other hand, Appellant testified that, when they arrived at Amanda’s
house, S.C. asked him to stay outside. He said that S.C. went into the house and
that, after about five minutes, she came back out of the house and asked him
whether he wanted to spend the night there. Appellant’s testimony was that he



                                            5
declined because he had to go to work the next morning and did not have any extra
uniforms with him.
      Appellant said that he and S.C. continued to communicate by text and by an
occasional phone call. About a week before a festival known as “Derrick Days,”
S.C. contacted him to see if he wanted to go to the festival with her. He declined.
Appellant had a girlfriend at the time, and he testified that he was trying to hide
from her the fact that he was seeing S.C. He further testified that, for about a
week, S.C. did not respond to his calls or to his texts. Later, on April 30, Appellant
received a text from S.C. in which she gave him a new cell phone number. They
began communicating again.
      Appellant testified that on May 2, 2010, he went fishing with his children.
They fished until around 3:30 or 4:00 in the afternoon and went back to his house
so that the children could clean up and get ready to return home to their mother.
S.C. also had gone fishing that day. She was fishing with Zach, Zach’s friend Sean
Hughes, and Zach’s oldest son. Both Appellant and S.C. agree that they texted
back and forth quite a bit that day while they were fishing and that they were
texting about getting together later after Appellant had taken his children home.
      Although they agreed on the language used in the multiple texts exchanged
that day, Appellant and S.C. disagreed on the context and on the meaning of the
content. In one of the text messages from Appellant to S.C., he gave her some
options for their evening together. One of those options was to go for drinks, and
the other was: “Or we can just go to my house, get naked and freaky in the bed the
rest—or [sic] the night.” She responded, “Aww, okay.” S.C. testified that the
reply to Appellant was a sarcastic one. She intended it to be a message meaning,
“Here we go again.” S.C. said that Appellant knew what she meant.
      S.C. testified that this was not the first time that Appellant had made such
comments to her. And, when he had made sexually suggestive remarks to her

                                          6
before, she told Appellant that she was aggravated by those types of remarks.
However, when Appellant had made those remarks before, S.C. assumed that he
had been drinking or that he was just trying to be funny. Although contested by
Appellant, S.C. claimed that, in between those messages, he phoned her to say that
he was “just kidding and that he wouldn’t do anything like that.” She told him on
the phone that “it wasn’t going to happen” and asked “if he was okay with just
having drinks.”   He also wrote, “I’m just playing with you honestly.”             She
responded, “It’s cool.” Appellant asked if she was “up for that last idea.” She
responded, “Whatever. Sure.” He testified that “the last idea” referred to the one
about getting “naked and freaky in the bed.” Appellant also took the “Aww, okay”
response to mean that S.C. wanted to have sex because they had already had sex
twice. She thought that the “last idea” referred to the fact that they would have
drinks. Later, she texted him a “winkie face” emoticon. Appellant concluded that
there were at least two consents for sex—three, if one counts the “winkie face.”
      When Appellant took his children to their mother’s house at the end of the
visitation on May 2, he knew that S.C. had not yet returned home from the fishing
trip. He decided to stay and have dinner with his children, his ex-wife, and her
boyfriend, and after dinner, he went to Amanda’s house to meet S.C. Later, he
went to the lake to pick her up from the place where she was fishing. They went to
the Taco Shop to get S.C. something to eat, and then they went to his house to
watch a movie.
      S.C. testified as to her recollection of the events that took place in the
evening hours of May 2 after they arrived at Appellant’s house. When they got
back to Appellant’s house, they went in; Appellant drank some beer and then went
to shower. She testified that, while Appellant showered, she watched a movie.
When Appellant came out of the shower, he sat down on the couch next to her; she
moved away from him. He “scooted” closer to her, and he kissed her. She again

                                         7
moved away from Appellant, and she let him know that she “didn’t want that.”
Appellant became angry and began to yell. He told S.C. that he had taken her “fat
f'ing” cousin and her for drinks and had bought them food and that she should kiss
him. Appellant finally trapped her between him and the armrest of the sofa. He
was on top of her. He had his forearm across the top part of her chest and had one
leg on the couch and one leg on the floor; he was trying to get her pants
unbuttoned. While Appellant was attempting to unbutton S.C.’s pants, she was
saying “no” and trying to get her legs up and in between Appellant and her. She
was not able to accomplish that.
      Appellant had trouble getting S.C.’s pants unbuttoned—the pants had double
buttons—and Appellant got up so that he could get her pants off her. When he got
up, he let her go, and she tried to get away. But he grabbed her—at first by her
jeans and then by the hair on the back of her head. She was on her knees trying to
crawl off the couch. He had already begun to hit her, and as she tried to crawl
away, he began to hit her head on the wooden part of the couch. During S.C.’s
testimony, she looked at the photo of the couch and living room and made the
comment to the jury that a table had been moved, “it was in a different spot” on the
night of the alleged assault. In another part of her testimony, she said, “That stuff
was not on that couch.” S.C. also testified that there had been a blanket on the
couch that “was out like . . . he had slept on it or something.” She testified that the
blanket that was on the couch on the night of the assault was not in the photograph
that was taken later by law enforcement personnel.
      S.C. said that the next thing she remembered after Appellant hit her head on
the wooden part of the couch was that she had been turned over and that he “had
had sex with me, and was getting off of me.” She had neither her pants nor panties
on; they had been removed. Appellant had his penis inside her vagina; she had not
consented to that. Appellant got two washcloths, cleaned himself with one, and

                                          8
gave the other one to S.C. for her to use to clean herself. He used his, but she did
not use hers.
      S.C. told the jury that she was afraid, “freaking out.” She did not know what
he was going to do. Appellant kept mumbling that he did not know what he was
going to do. She told him that “it was okay” and asked if he would just take her
home. She told him that she “wasn’t mad or anything . . . that it was fine.” She
said that she just wanted to go home.
      According to S.C., Appellant did not want to take her to Zach and Amanda’s
“because they would know that something had happened.” She could tell that she
had blood on her, that she had been injured, and that her shirt had been torn. She
told Appellant that she would just tell everyone that she had fallen. She was
desperate and just wanted to “get out of there” and “get away from him.” She
assured him that she would not say anything. S.C. testified that, after the assault,
Appellant threatened her. He told her what he did for employment and said that it
would be a shame if something were to happen to other people who lived in the
house. She took that as a threat that he was capable of carrying out. She was more
afraid than she was in pain. She finally got him to agree to take her to Hughes’s
house.
      S.C. felt safe with Hughes, a man with whom she had had a one-time sexual
encounter and with whom she was now just friends. This is the same Hughes who
was a friend of Zach and Amanda and with whom S.C. had been fishing on the
date of the alleged assault. S.C. testified that she wanted Appellant to drop her off
at the corner close to Hughes’s house so that she could just run in but that
Appellant said he did not want to do that because it would make it look like he had
done something wrong.
      Appellant’s version of the events of that evening was as follows: when S.C.
and he arrived at his house, they went in, and he got some beer from the

                                         9
refrigerator. They began to watch the movie, and at some point, they began kissing
and “caressing.” He told S.C. that he was going to take a shower because he had
been fishing all day and was “pretty nasty.” There is no testimony that S.C.
cleaned up or showered.
      Appellant said that he showered, put on a pair of basketball shorts, and
returned to the living room. When he came back into the living room, S.C. was
lying on the couch and was covered with a brownish-colored blanket that is shown
in a photo that the law enforcement officers took of his living room and couch. He
uncovered her and started kissing her. He unbuttoned her pants; they “slid her
pants off her legs”; and he performed oral sex on her. After that, they had sexual
intercourse; he ejaculated into her again.
      Appellant told the jury that after they had sexual intercourse, he “wiped
[himself] off, and she -- I gave her a rag and she wiped herself off” and that they
got dressed and began having a conversation. During the conversation, S.C.’s
demeanor changed “a whole bunch,” and she seemed sad. She either told him that
she was sad because of her grandmother’s recent death, or she had told him about
the death earlier and he just assumed that was why she was sad. At any rate,
Appellant testified that he expressed his sorrow to her.
      After twenty-five to thirty minutes, S.C. told him that she wanted Appellant
to take her to a friend’s house. The friend was going to give her a ride to a new job
the following morning. As they drove there, he noticed that she “just wasn’t acting
right.” Appellant told the jury that, when they got to the friend’s house, as S.C. got
out of his pickup, she leaned in and either hugged him or kissed him and said that
she would call him later. It took a while for anyone to come to the door and let
S.C. in. Appellant offered to let her use his phone to call and let her friend know
she was there (the battery had gone down on her phone). She declined, and in a



                                             10
short while, someone let her in and Appellant left. He noted that the time on the
clock in his pickup was 10:49 p.m. when he let her out. They never spoke again.
      S.C. testified that when she and Appellant arrived at Hughes’s house, she got
out of Appellant’s pickup, went to Hughes’s door, and began banging on it.
Hughes finally came to the door. He had a gun with him when he answered the
door; it was “the middle of the night,” and Hughes’s two children lived with him.
According to S.C., when Hughes answered the door, he looked at her and said,
“What the hell happened to you?” He wanted to know whether Appellant had hurt
her. S.C. told the jury that she was afraid because Hughes still had the gun and
Appellant was still sitting in his pickup. Therefore, she told Hughes that she had
fallen. As soon as she was inside the house, S.C. locked the door and told Hughes
what had happened, that Appellant “did this to [her].”
      Hughes would not allow S.C. to take a shower or to clean up. She did,
however, change her shirt and wash her face as much as she could until Hughes
told her to stop and to call the police.
      Hughes testified before the jury. He had known Amanda for about fourteen
years. He knew S.C. through Zach and Amanda and had known her for one and
one-half to two years. He and S.C. had a one-time sexual encounter.
      Around midnight on the night of the offense, Hughes’s son woke him up and
told him that someone was knocking on the door. When Hughes went to the door
and opened it, S.C. was standing there and was covering her face with her hand.
When S.C. came into the house, Hughes could see that her face was “pretty
bloodied up” and that her shirt was torn. She had blood on her clothes and looked
“rough.” Hughes told the jury that S.C. “was terrified,” “scared.” After S.C. told
him what had happened, Hughes called Amanda so that Amanda could come and
take S.C. to the hospital. S.C. “was bleeding pretty bad.” Amanda came and took
S.C. to the hospital. Hughes did not see S.C. anymore that night.

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      Amanda testified that, between 11:00 and 12:00 on the night of the alleged
offense, she received a telephone call from Hughes regarding S.C. She said she
got dressed and drove to Hughes’s house. When she got there, she noticed that
S.C. “looked horrible.” S.C.’s face was bloody; one side of her face was puffy; her
clothes were ripped; “and she was sitting on the couch bawling her eyes out.”
Amanda made sure that S.C. did not wash anything. Amanda put the shirt that
S.C. had worn in a plastic bag and took S.C. to the hospital.
      The State introduced the medical records from Navarro Regional Hospital
that pertained to the event. Also, Debbie Teague Grant, a registered nurse and
certified sexual assault nurse examiner, testified as did Dr. Robert Phillips. Grant
was on duty in the emergency room when Amanda brought S.C. in. Dr. Phillips
was the emergency room physician on duty at the time.              Both Grant and
Dr. Phillips detailed the history given to them by S.C. and the bruises, scrapes,
contusions, abrasions, and other injuries they found on S.C.’s body. A rape kit was
performed. Dr. Phillips testified that the results of the exam could be from a sexual
assault or not, but it was his opinion that S.C.’s condition was consistent with the
alleged assault. Grant also testified that the examination was consistent with the
history of assault given by S.C. and that, based upon what she saw and what S.C.
told her, she was of the opinion that this was a sexual assault.
      On the night of the alleged assault, Todd Henkel, a patrol deputy for the
Navarro County Sheriff’s Office, was dispatched to Navarro Regional regarding a
sexual assault complaint. He met with S.C. and noted that she had an injury to her
lip, an injury to the side of her face, and “bruises to her arms and stuff.” S.C.
named Appellant as her assailant.
      On May 3, 2010, Scott Stephens was working as a detective for the Navarro
County Sheriff’s Office.      He and Detective Sergeant Hank Bailey went to
Appellant’s house to talk to him about the alleged assault. They knocked on the

                                          12
doors to the house, but no one was there. Through the back door, they could see a
laundry basket that contained what appeared to be the washcloths that S.C. had
described to them.     The officers obtained a search warrant.        The following
morning, they executed the warrant and also arrested Appellant.
      The day after the arrest, Detective Stephens saw S.C. again. She told him
that there had been no other sexual encounters with Appellant. She also showed
him additional bruises that had just begun to show. Detective Stephens testified
that S.C.’s injuries were consistent with the allegations that S.C. had made.
      Four days after she was examined at Navarro Regional, she was seen by
Dr. Kim Evans, an OB/GYN. Dr. Evans testified that when she first saw S.C., she
appeared disheveled, very emotional, and at times tearful.              She seemed
“appropriately upset” for someone who had made a claim of sexual assault.
Dr. Evans described the bruises, lacerations, and scratches that she found
“throughout” S.C.’s body. She also found excoriations or scratches to S.C.’s
perineum. Even after four days, those scratches were consistent with the sexual
assault that S.C. reported. Dr. Evans’s assessment was “adult sexual abuse.” “The
exam findings were -- are highly suggestive of and can be consistent with the
alleged sexual assault.”    Dr. Evans also told the jury that the scrapes to the
perineum could be consistent with either consensual or nonconsensual sex.
      Appellant called Dr. Tiffany Gabble, an OB/GYN, to testify. She reviewed
the medical records from Navarro Regional as well as Dr. Evans’s records.
Dr. Gabble disagreed with Dr. Phillips’s findings, with Grant’s findings, and with
Dr. Evans’s findings. She saw nothing in any of the records that would indicate
that a sexual assault had occurred.        The injuries in the photographs were
superficial; the majority of the bruises were old; and the scratches did not look like
assaultive scratches. The injuries to S.C.’s lip, according to Dr. Gabble, were



                                         13
nothing more than classic herpes lesions, which bleed easily. She did not see any
excoriations in the photograph of S.C.’s perineum.
      Dr. Phillips later testified again. Among other things, he said the injuries
that he saw to S.C.’s lip were inconsistent with a herpes outbreak, but consistent
with a traumatic injury. There is very little bleeding when a lesion ruptures.
Dr. Evans also testified that any herpes involvement was not related to this
incident.
      Mary Ann Bell, a licensed professional counselor who began treating S.C. in
December 2010, testified for the State. Bell explained the symptoms of post-
traumatic stress disorder (PTSD) and said that S.C. exhibited many of them, such
as difficulty in falling or staying asleep; nightmares and flashbacks; anxiety
attacks; increased irritability; exaggerated startle response; fear (often stays in the
house with the blinds closed because of fear); avoidance (tries to avoid thinking or
talking about the event and keeps herself busy in an effort to do that); difficulty
recalling certain aspects of the event; and a numbing of her emotions (if one stays
busy, one does not have to feel).
      In addition to his own testimony, Appellant presented witnesses who
testified to his reputation as a truthful and peaceful person. He also called a
witness who testified that S.C. had a reputation as being an untruthful person.
      To show that S.C.’s injuries were related to an earlier incident, Appellant
introduced Navarro Regional emergency room records from April 20, 2010. On
that date, S.C. was attempting to take a picture down from the wall and she fell
some five feet from a dresser to the floor. Dr. Phillips compared those records
with the injuries found during S.C.’s May 2 emergency room visit. He testified
that there was no correlation between the April 20 injuries and the May 2 injuries.
      In his first issue, Appellant challenges the trial court’s decision to admit
evidence that Bell had diagnosed S.C. as suffering from PTSD.               Appellant

                                          14
concedes that “the evidence of the counselor’s diagnosis of PTSD was relevant” in
this case “because consent was an issue” but argues that it was an abuse of
discretion in light of Rule 403 to allow “this prejudicial evidence in this case.”
      Appellant argues that, because S.C.’s “credibility was the sole issue in this
case,” Bell’s testimony “that [S.C.] was diagnosed with PTSD was extremely
prejudicial and was the kind of testimony that was impossible to rebut.”
      A trial court’s ruling on the admissibility of evidence is reviewed for an
abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009). We will uphold a trial court’s ruling if it is correct under “any theory of law
applicable to the case.” Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990).
      “Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice.” TEX. R. EVID. 403.
‘Unfair prejudice’ does not, of course, mean that the evidence injures the
opponent’s case—the central point of offering evidence. Rather it refers to ‘an
undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.’” Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim.
App. 1993) (quoting Steven Goode et al., Texas Practice: Guide to the Texas Rules
of Evidence: Civil and Criminal § 403.2 (1988)).
      Appellant did not challenge the expert’s qualifications at trial, and he does
not do so on appeal. The State designated Bell as an expert witness prior to trial,
and Appellant took Bell on voir dire outside the presence of the jury. Appellant
asked about Bell’s experience, her education, and whether she had ever been fired.
At the conclusion of the voir dire, Appellant objected “under Rule 403” and argued
that Bell’s testimony was offered “to put [S.C.’s] testimony up there twice” and
that “this is just a way to bring in hearsay evidence and to re-emphasize the



                                          15
emotional impact of this alleged crime.” The trial court overruled the objection
and allowed Bell to testify. Appellant obtained a running objection.
      According to Bell, PTSD is diagnosed when the following symptoms are
present: (1) a life-threatening event; (2) recurrent recollections of the event; (3)
persistently avoiding things that trigger memories of the event; and (4) anxiety
brought on by thinking about the event. Bell testified that S.C. suffered from
PTSD; that, among other things, she suffered from nightmares, anxiety attacks,
increased irritability, avoidance issues, and fear; and that these symptoms are
consistent with the sexual assault the victim had described. On cross-examination,
Bell agreed that she could not say what caused the PTSD but could testify as to the
symptoms she observed. Bell admitted that she does not investigate the cause but
relies on what the patient tells her. Bell told the jury that she studies the patient’s
outward appearance and what is happening “on the inside and being familiar with
seeing this several times over and over again as far as what really is a symptom
and what is not a symptom.”
      Although relevance has been conceded, we note that Bell’s expert testimony
was relevant to the issue of consent as circumstantial evidence that S.C. suffered
from some kind of trauma. Although Appellant contends that this testimony was
“extremely prejudicial,” he fails to explain how evidence that the victim suffered
from PTSD is unfairly prejudicial. By its nature, the evidence against an accused
is prejudicial, but to be inadmissible, it must encourage a verdict on an improper
basis. See Cohn, 849 S.W.2d at 820. Appellant also argues that Bell’s testimony
is “impossible to rebut because an alleged victim cannot be compelled to submit to
an examination by a defense expert.” However, Appellant fails to explain what he
would hope to gain through an additional expert assessment.
      We find no basis for the exclusion of this otherwise relevant and admissible
expert testimony. Bell did not express an opinion on whether she believed S.C.

                                          16
was telling the truth or whether S.C. could be believed. Bell told the jury what she
observed and explained that these symptoms were consistent with trauma based on
her experiences with patients suffering from PTSD. Bell also agreed that this was
her opinion and conceded that another expert might reach a different conclusion.
Her testimony did not cross the line between assisting the trier of fact and
attempting to replace the jury’s role as decision maker. Accordingly, we cannot
conclude that the trial court’s decision to admit Bell’s testimony was an abuse of
discretion. Appellant’s first issue is overruled.
      In his second issue on appeal, Appellant maintains that certain testimony
from Detective Stephens regarding the disposal of a blanket and S.C.’s panties was
inadmissible hearsay.
       We have noted that S.C. testified that, at the time of the assault, there was a
blanket that was out on the couch “like [Appellant] had slept on it or something.”
At trial, a photograph of Appellant’s living room was admitted into evidence. S.C.
looked at the photograph and testified that the blanket that was on the couch the
night of the assault was not there. The photograph shows two folded blankets on
opposite ends of the couch, but S.C. testified that the blanket that was on the couch
that night was not in the picture that the officers took later. Appellant testified,
however, that the two blankets in the photograph were still at his house on the day
of trial and that those were the only blankets that he ever owned. At trial, S.C. was
never asked if she knew what happened to that blanket.
      During    cross-examination     of   Detective   Stephens, defense      counsel
established that the officers did not find blood in Appellant’s pickup, on his couch,
or anywhere else in his house. Detective Stephens also agreed that it was not
unusual to put a used washcloth in a dirty clothes hamper. After defense counsel
established that there was no investigation to determine whether anyone else



                                           17
caused S.C.’s injuries, the following exchange occurred between Appellant’s
lawyer and Detective Stephens:
            Q. You know, if a guy was covering up a sexual assault would
      he tend to leave the evidence just lying around?
             A. I wouldn’t, but, you know, I can’t answer for him.
              Q. Well, let’s say a guy had sexually assaulted a girl and she
      cleaned herself up with a rag, do you think he just goes, so, okay,
      we’ll just put them in the dirty clothes hamper and wait for the cops to
      find it. Does that seem normal?
             A. Normal, no, but.
             Q. Okay. Would it seem normal for, I mean, we’ve heard
      testimony that [Appellant], that [Appellant] drove [S.C.] to Sean
      Hughes’s house, and waited there for the light to come on and the
      door to open so that she could go in the house. Does a guy who just
      sexually assaulted a girl sit around and wait so somebody can identify
      his truck?
             A. I, you know, I wouldn’t, but.
             Q. You wouldn’t, would you?
             A. No.
       After Appellant vigorously challenged the evidence as showing nothing
more than consensual sex because a guilty person would have tried to hide or clean
up any evidence, the State attempted to establish that Appellant had disposed of a
certain item of evidence in the case. The State began its redirect examination of
Detective Stephens by asking him whether S.C. had told him that there was a
blanket covering the couch during the assault.       Detective Stephens answered
affirmatively. He also testified that S.C. told him that the panties that she wore
that night were missing. Detective Stephens testified that the police did not find
any women’s panties and that “the blanket [S.C.] described to us was not there.”
The State asked, “What did [she] say the defendant did with the blanket?”
Appellant’s attorney objected to the question as calling for hearsay. The trial court


                                         18
overruled the objection. Detective Stephens then told the jury that S.C. told him
that Appellant put the blanket “in a black trash bag” and that, “when he left the
residence, he took it with him and put it in the trunk.” 1
        We review a trial court’s decision to admit or exclude evidence under an
abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991). We will reverse a trial court’s ruling only if it is outside the
“zone of reasonable disagreement.” Id. With some exceptions and exemptions, an
out-of-court statement that is offered to prove the truth of the matter asserted is
inadmissible hearsay. TEX. R. EVID. 801(d), 802.
        On appeal, the State argues that Appellant “clearly opened the door to
hearsay testimony regarding the Appellant removing evidence from the scene of
the crime.” The State contends that it “was entitled to question the detective about
what his investigation turned up regarding the removal of evidence” after
Appellant “elicited testimony regarding what a sexual offender may do in the
situation.” We disagree.
        Even if we assume that testimony about whether Appellant had taken steps
to dispose of potential evidence was not relevant (which we do not hold because, to
the contrary, it was relevant), Appellant’s cross-examination of Detective Stephens
might have made it relevant. But it did not invite otherwise inadmissible hearsay
testimony on that issue. See Kipp v. State, 876 S.W.2d 330, 337 (Tex. Crim. App.
1994) (“‘Opening the door’ or ‘inviting’ testimony that would otherwise pertain to
an inadmissible subject matter does not mean that such testimony is necessarily
‘invited’ into evidence in any form, including hearsay.”). As the Fourteenth Court
of Appeals has held, relevance and hearsay present different considerations.
Daniels v. State, 25 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2000, no
        1
          The evidence shows that Appellant was driving a pickup. Although the record indicates that
S.C. told Detective Stephens that Appellant put the trash bag in the “trunk,” we are assuming that “trunk”
in the record should actually read “truck.”


                                                   19
pet.). The court must view the admissibility of the evidence through two different
lenses. First, was the door opened to allow otherwise and theretofore nonrelevant
evidence? Second, was the witness testifying from personal knowledge or is there
an exception under the rules? Id. Here, even if Appellant “opened the door” to
make otherwise nonrelevant testimony then relevant, the testimony nevertheless
was inadmissible hearsay. The State could have recalled S.C., and she could have
testified as to the relevant fact of what she personally observed about the disposal
of the blanket; the State did not do that. Instead, the State offered, and the trial
court admitted, inadmissible hearsay evidence from Detective Stephens concerning
S.C.’s out-of-court statement. The statement was clearly offered to prove the truth
of the matter asserted: that Appellant had disposed of the blanket.
      We have already noted that Detective Stephens testified that S.C. had told
him the panties she wore that night were missing. However, as far as the disposal
of any panties by Appellant is concerned, the State’s question to Detective
Stephens inquired only about the trash bag and the blanket, not about a trash bag
and missing panties. After the detective was allowed to testify as to the hearsay
statement about what Appellant did with the blanket, Appellant’s attorney asked
Detective Stephens: “Now let’s say that, let’s say that a person sexually assaults
somebody on a blanket and then gives somebody a rag, a rag to clean up with, does
it make any sense that that person would take the, take the trouble to take the
blanket and put it in a black trash bag, and take some underwear and put it in a
black trash bag, but then leave the rags that had been, that the person had cleaned
up with just sitting in the hamper?” (emphasis added). Counsel for Appellant
continued, “I mean, typically, especially a person who supposedly had already
hidden underwear and hidden a blanket . . . .” (emphasis added). As we have
noted, though S.C. might have told law enforcement officers earlier that Appellant
disposed of her panties in a trash bag, neither Detective Stephens nor anyone else

                                         20
had testified to the disposal of S.C.’s panties. The only reference to that came
when Appellant’s lawyer asked the questions that we have just quoted.
      We hold that the trial court erred when it admitted the testimony about the
removal of the blanket over Appellant’s hearsay objection, but the objectionable
testimony did not include any testimony about panties. Having determined that the
trial court erred as to the blanket, we must determine whether Appellant was
sufficiently harmed by the admission of the hearsay testimony.         See TEX. R.
APP. P. 44.2(b).
      The erroneous admission of evidence constitutes nonconstitutional error.
Kirby v. State, 208 S.W.3d 568, 574 (Tex. App.—Austin 2006, no pet.); see
Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Nonconstitutional
error requires reversal only if it affects the substantial rights of the accused. See
TEX. R. APP. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex. Crim. App.
2011).
      When we assess potential harm, our focus is not on whether the outcome of
the trial was proper despite the error but, rather, on whether the error had a
substantial or injurious effect or influence on the jury’s verdict. Barshaw, 342
S.W.3d at 93–94. We review the entire record to ascertain the effect or influence
of the wrongfully admitted evidence on the verdict. Id. at 93; see Coble v. State,
330 S.W.3d 253, 280 (Tex. Crim. App. 2010) (in conducting harm analysis “we
examine the entire trial record and calculate, as much as possible, the probable
impact of the error upon the rest of the evidence”). We consider all the evidence
that was admitted at trial, the nature of the evidence supporting the verdict, the
character of the alleged error, and how the evidence might be considered in
connection with other evidence in the case. Barshaw, 342 S.W.3d at 94. We may
also consider the jury instructions, the parties’ theories of the case, closing



                                         21
arguments, voir dire, and the extent to which the State emphasized the error. Id.;
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
      We must reverse a conviction for nonconstitutional error if we have “grave
doubt” about whether the result of the trial was free from the substantial influence
of the error. Barshaw, 342 S.W.3d at 94. “‘Grave doubt’ means that ‘in the
judge’s mind, the matter is so evenly balanced that he feels himself in virtual
equipoise as to the harmlessness of the error.’” Id. (quoting Burnett v. State, 88
S.W.3d 633, 637–38 (Tex. Crim. App. 2002)). “[I]n cases of grave doubt as to
harmlessness the [appellant] must win.” Id.     Neither the State nor the appellant
has the burden to show harm. Rather, it is our duty as an appellate court, after an
appropriate review, to assess harm. Johnson v. State, 43 S.W.3d 1, 5 (Tex. Crim.
App. 2001).
      Appellant argues that, because the jury had to decide whether to believe
Appellant or S.C., “the mere suggestion that Appellant disposed of possibly
incriminating evidence that might have contained blood could have tipped the
scales against Appellant.” We agree that the jury was the judge of the credibility
of the witnesses and of the weight to be given to their testimony. But here, the jury
had many opportunities to exercise that judgment as to S.C. and Appellant and to
many other witnesses throughout the trial of this case.
      We will use the phrase that many of the cases use and note that this is not the
typical “he said, she said” case of sexual assault when the only witnesses are the
two parties involved. For example, the court in Hammer wrote: “Sexual assault
cases are frequently ‘he said, she said’ trials in which the jury must reach a
unanimous verdict based solely upon two diametrically different versions of an
event, unaided by any physical, scientific, or other corroborative evidence.”
Hammer v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009). Referring to
Hammer, the court in Sandoval said, “The only direct evidence of the sexual

                                         22
assault was [the alleged victim’s] account in her testimony. The State presented no
corroborative evidence.” Sandoval v. State, 409 S.W.3d 259, 290 (Tex. App.—
Austin 2013, no pet.).
        Although the jury did hear two basically diametrically opposed versions of
the event from Appellant and from S.C., those versions were not unaided by
physical, scientific, or other corroborative evidence. Here, there were more than
twenty witnesses who testified and over eighty exhibits that were admitted for the
jury’s consideration. In this opinion, we have reviewed in some detail the evidence
that the jury heard and do not find it necessary to repeat that evidence here. The
inadmissible testimony was but a small part “of a large amount of evidence
presented that the jury could have considered in assessing” the parties’ credibility.
Schutz v. State, 63 S.W.3d 442, 446 (Tex. Crim. App. 2001). In our review, “the
focus on credibility “is significant, but it is not conclusive.” Id. When we consider
all the evidence that was admitted at trial, the nature of the evidence supporting the
verdict, the character of the alleged error, how the evidence might be considered in
connection with other evidence in the case, the parties’ theories of the case, closing
arguments, voir dire, and the extent to which the State emphasized the error, we
cannot say that the error had a substantial or injurious effect or influence on the
jury’s verdict. 2 We do not have “grave doubt” about whether the result of this trial
was free from any substantial influence resulting from this one error. We hold that
the erroneous admission of the hearsay evidence about the blanket was harmless.
Appellant’s second issue on appeal is overruled.




        2
          We do not believe that we may consider in our analysis either affidavits or testimony of a juror
offered at the hearing on the motion for new trial in this regard as violating Rule 606(b), discussed more
fully later in this opinion. TEX. R. EVID. 606(b). Even if we could, a different result would not be
demanded because of the conflicting nature of the proffered testimony at the hearing on the motion for
new trial.


                                                   23
      Appellant complains in his third issue that the trial court erred when it
denied Appellant’s motion for new trial based on jury misconduct. He alleges that
a juror slept through critical portions of the trial. Appellant argues that, because he
had a constitutional right to a fair and impartial trial and because a sleeping juror
deprived him of that right, he is entitled to a new trial under Rule 21.3(g). TEX. R.
APP. P. 21.3(g).
      We review the denial of a motion for new trial for an abuse of discretion.
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). The determination
of historical facts and assessment of witness credibility are within the trial court’s
discretion. Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000) (citing
Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984)). We consider the
evidence in the light most favorable to the trial court’s ruling. Webb v. State, 232
S.W.3d 109, 112 (Tex. Crim. App. 2007). Rather than substituting our judgment
for that of the factfinder, we must determine whether the trial court’s ruling was
arbitrary or unreasonable. Holden, 201 S.W.3d at 763. We must uphold the trial
court’s ruling if it is within the zone of reasonable disagreement. Webb, 232
S.W.3d at 112. A trial court abuses its disretion when it denies a motion for new
trial only when no reasonable view of the record could support the trial court’s
ruling. Holden, 201 S.W.3d at 763. The party who moves for a new trial has the
burden of proving juror misconduct. Hughes, 24 S.W.3d at 842.
      A mistrial is appropriate in “extreme circumstances” for incurable and
highly prejudicial errors. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). If sleep by a juror constitutes such “misconduct that the defendant did not
receive a fair and impartial trial,” the defendant must be granted a new trial.
TEX. R. APP. P. 21.3(g). A new trial “is appropriate only if the defendant was
deprived of his Fifth Amendment due process rights or his Sixth Amendment right
to an impartial jury.” United States v. Freitag, 230 F.3d 1019, 1023 (7th Cir.

                                          24
2000). Whether a trial court should grant a new trial because of a sleeping juror
depends on whether the juror “missed large portions of the trial or [whether] the
portions missed were particularly critical.” Freitag, 230 F.3d at 1023.
      At the hearing on the motion for new trial, Appellant called several
witnesses. Alternate Juror Janet Barba explained that she sat next to the sleeping
juror throughout the trial. Barba testified that she observed the juror with her eyes
shut, that her head was nodding, and that she was breathing like a person who was
asleep. Barba said that the juror “would snore intermittently and then it would
wake her and she would . . . straighten back up and then she would doze off again.”
When asked whether she remembered “any specific key points that [the juror] was
asleep during,” Barba said that the juror was asleep “at various times” during the
victim’s testimony, and she later told the court that “to be asleep during any
portion of [the testimony] regardless of who is testifying would have been wrong”
(emphasis added). Barba agreed that the juror slept through “a large portion” of
the trial, but she was never asked to give any other examples of what the juror
missed. On cross-examination, Barba admitted that she was not present during
deliberations, that she did not know how much of the evidence the juror
comprehended or what role the juror played in deliberations, and that she never
discussed with the juror what the juror heard and did not hear.
      Nancy Harrist, a legal assistant to Appellant’s trial counsel, testified that,
when she saw the juror during trial, the juror was slumped in her chair with her
chin down and her eyes closed. Harrist agreed with Appellant’s counsel that the
juror appeared to be asleep for a large portion of the trial, but Harrist never
explained how often she observed the juror sleeping, how long the juror slept, or
what the critical parts were that the juror missed. Harrist also remembered that the
trial ended early one day so that the juror could go to a doctor’s appointment and
agreed that a medical condition could explain her posture during trial. Harrist also

                                         25
admitted that the defense never talked to the juror after trial to determine how
much of the evidence the juror comprehended, nor did she talk to the other jurors
to determine how much the juror contributed to the deliberation process.
      Appellant also called the bailiff and the court coordinator as witnesses. The
court coordinator, Melissa Butler, testified that she was in the courtroom
sporadically and saw that the juror’s “head was down, [and] her eyes were closed.”
Butler had the opportunity to observe the juror only a couple of times each day; the
juror did not appear to be asleep every time.          Butler also testified that she
remembered the juror going to the doctor one afternoon during the trial. The
bailiff, Calvin Gray, testified that the juror “appeared to doze off during the trial
several different times.” But Gray admitted that he did not know and merely
assumed that she was sleeping because her eyes were shut. Gray noticed that the
juror appeared to be sleeping on three or four occasions for one to two and one-half
minutes at a time. Gray and Butler both testified that the juror was never left
sitting in the jury box when the jury was dismissed.
      Although it appears from our review of the record that the juror was
“nodding off” and “dozing off” during trial, it is not clear how much of the
evidence she failed to hear because she was sleeping. Butler only observed the
juror a couple of times each day, and Gray only observed her sleeping three or four
times over the course of the trial. Although Barba testified that the juror missed a
large portion of the trial, Barba did not explain what she believed was a large
portion or give an amount of time that the juror was asleep, and as an alternate
juror, she was not present during deliberations to know the extent of the juror’s
participation. We conclude that the record does not establish that the juror missed
large portions of the trial. See Menard v. State, 193 S.W.3d 55, 60 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (concluding that evidence that a juror
sporadically closed his eyes for short periods does not show that the juror missed

                                         26
large portions of the trial). Moreover, Barba informed the trial court and the bailiff
that the juror was sleeping, so the trial court was in a position to monitor and
observe her attentiveness. See Dickerson v. State, 87 S.W.3d 632, 641 (Tex.
App.—San Antonio 2002, no pet.) (“The trial court is in the best position to
observe the demeanor of the jurors.”). We cannot conclude that the trial court’s
ruling was outside the zone of reasonable disagreement; consequently, we hold that
the trial court did not abuse its discretion when it denied Appellant’s motion for
new trial. Appellant’s third issue is overruled.
      In his fourth issue on appeal, Appellant asserts that the trial court
erroneously denied his motion for new trial based on a second claim of juror
misconduct. He alleges that the verdict was not a fair expression of the jurors’
opinion because they made “an agreement to exchange a guilty vote for the
promise of probation on punishment.” Further, Appellant claims that an Allen3
charge given to the jury by the trial court caused a hold-out juror to change his
mind from “not guilty” to “guilty. Appellant presented an affidavit that indicated
that the juror agreed to change his vote to guilty after the other jurors agreed that
Appellant would be granted probation and not be sent to prison. At the hearing on
the motion for new trial, Appellant offered a recording of his lawyer’s phone
conversation with the hold-out juror as well as the testimony of the hold-out juror.
The trial court was of the opinion that Rule 606(b) prohibited that testimony.
TEX. R. EVID. 606(b). We agree.
      We employ a two-part test to determine whether jury misconduct has
occurred. First, we must determine whether there was misconduct, and second, we
then assess harm. Schalk v. State, 767 S.W.2d 441, 454 (Tex. App.—Dallas 1988),
aff’d, 823 S.W.2d 633 (Tex. Crim. App. 1991).


      3   Allen v. United States, 164 U.S. 492 (1896).


                                                    27
      Allegations of jury misconduct that are predicated upon the jury’s
consideration of punishment during guilt/innocence deliberations are often
improper attempts to “impeach” the verdict by considering the thought processes
of the jurors. Id. Nonetheless, jurors should consider only the evidence adduced at
trial so that a fair and impartial verdict can be reached according to the law free
from improper influence from irrelevant and prejudicial matters not relating to
guilt, innocence, or punishment. Id. Thus, we must first determine whether
Appellant was attempting to improperly impeach the jury’s verdict or was properly
demonstrating jury misconduct.
      Rule 606(b), entitled “Inquiry Into Validity of Verdict or Indictment,”
delineates the following circumstances under which jurors can testify as witnesses:
             Upon an inquiry into the validity of a verdict or indictment, a
      juror may not testify as to any matter or statement occurring during
      the jury’s deliberations, or to the effect of anything on any juror’s
      mind or emotions or mental processes, as influencing any juror’s
      assent to or dissent from the verdict or indictment. Nor may a juror’s
      affidavit or any statement by a juror concerning any matter about
      which the juror would be precluded from testifying be admitted in
      evidence for any of these purposes. However, a juror may testify: (1)
      whether any outside influence was improperly brought to bear upon
      any juror; or (2) to rebut a claim that the juror was not qualified to
      serve.

TEX. R. EVID. 606(b). Moreover, the Rules of Appellate Procedure mandate that a
defendant must be granted a new trial when the verdict has been decided by lot or
in a manner other than a fair expression of the jurors’ opinion.           TEX. R.
APP. P. 21.3(c).
      Regardless of Rule 21.3(c), Rule 606(b) limits the manner of proof to that
other than testimony of a juror. TEX. R. EVID. 606(b); Hicks v. State, 15 S.W.3d
626, 630 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Hines v. State, 3
S.W.3d 618, 621–22 (Tex. App.—Texarkana 1999, pet. ref’d). The rule contains


                                        28
two exceptions: outside influence and juror qualification. TEX. R. EVID. 606(b).
Specifically, an “Allen charge” is not an outside influence for purposes of Rule
606(b). Franks v. State, 90 S.W.3d 771, 801–02 (Tex. App.—Fort Worth 2002),
pet. ref’d, untimely filed, 97 S.W.3d 584 (Tex. Crim. App. 2003). Neither of those
exceptions is applicable to Appellant’s other arguments here.
       Appellant urges this court to also consider the constitutionality of
Rule 606(b) as applied to this case. That issue has been decided adversely to
Appellant’s argument. See Glover v. State, 110 S.W.3d 549 (Tex. App.—Waco
2003, pet. ref’d).4
       We have considered all facets of Appellant’s fourth issue on appeal, and it is
overruled.
       The judgment of the trial court is affirmed.




                                                              JIM R. WRIGHT
                                                              CHIEF JUSTICE
May 22, 2014

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




       4 This case has been transferred to us from the Tenth Court of Appeals in Waco pursuant to an
order of the Texas Supreme Court under the authority of Section 73.001 of the Texas Government Code.
TEX. GOV’T CODE ANN. § 73.001 (West 2013). In accordance with Rule 41.3 of the Texas Rules of
Appellate Procedure, we are required to follow the precedent of the Waco court. TEX. R. APP. P. 41.3.


                                                 29
