                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-15-00416-CR


JOSHUA GOLLIDAY                                                        APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


                                      ----------

          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1379815D

                                      ----------

                  OPINION ON THE STATE’S MOTION
                  FOR EN BANC1 RECONSIDERATION
                                      ----------

      After the majority of a panel of this court issued an opinion reversing the

trial court’s judgment of conviction, the State filed a motion for rehearing en banc.

We granted the State’s motion and ordered resubmission of the appeal without


      1
       The en banc court for this appeal consists of all members of the court and
Senior Justices Lee Ann Dauphinot and Anne Gardner. See Tex. R. App. P.
41.2(a).
oral argument. After considering the arguments presented by the parties upon

the original submission of this appeal, we withdraw our opinion and judgment

dated October 13, 2016 and substitute the following.

         A jury convicted Appellant Joshua Golliday of sexual assault, charged in a

single-count indictment and alleged to have occurred on or about January 5,

2013.      The jury assessed his punishment at two years’ confinement and

recommended that imposition of sentence be suspended and that Appellant be

placed on community supervision.              The trial court sentenced Appellant

accordingly, assessing a seven-year term of community supervision. Appellant

brings five points on appeal, challenging the trial court’s limitations on his cross-

examination and on his ability to present character evidence and contending that

the State’s argument constituted a comment on his silence and that the

cumulative effect of trial errors was harmful. Because we hold that the trial court

erroneously limited Appellant’s right to present his defense, we sustain his first

two points, reverse the trial court’s judgment, and remand this cause to the trial

court.

                       Factual and Procedural Background

         Complainant is a woman who lived at The Depot apartment complex in

downtown Fort Worth. She testified that her apartment, number 333, was on the

second floor; later she testified that she did not remember whether her apartment

was on the second or third floor, but she thought it might be on the third.




                                          2
      Complainant was involved in a car wreck on January 4, 2013, and

although she was not injured, she lost the use of her car. When she returned to

her apartment, she began to drink alcohol and planned to continue drinking both

in her apartment and during an evening out. She went out alone in downtown

Fort Worth to Dirty Murphy’s, not to socialize or to have a good time, but just to

drink beer and wine. She returned to her apartment after midnight, changed into

her pajamas, continued to drink wine, and started watching a movie.          She

described herself as intoxicated.

      Complainant went out into the hallway to smoke, and she found neighbors

smoking and drinking, so she stayed outside smoking and talking to them.

Complainant testified that she had run out of cigarettes and had “needed to bum

one,” but she could not remember at trial whether anyone gave her a cigarette.

She did remember that she asked Appellant, who was in the group smoking

outside her apartment, to take her to the store to buy cigarettes. Complainant

testified that she was then wearing black pajama pants, a long-sleeve black

pajama shirt, panties, and no bra.

      At the convenience store, Complainant bought cigarettes and wanted to

rent a movie. At trial, she did not remember whether Appellant went into the

store or stayed in the vehicle. She also testified that there was some flirting

going on. When they returned to the Depot, Complainant invited Appellant into

her apartment to watch the movie with her, and she testified that she made

herself a drink and thought she made him a drink.       While they watched the


                                        3
movie, Complainant and Appellant began kissing consensually. In response to

the prosecution’s questioning, Complainant responded, “Things progressively

happen[ed].    I don’t—I don’t remember everything exactly.”          Although she

remembered Appellant’s trying to touch her, she did not remember where he

tried to touch her. She did remember that she was not okay with it and asked

Appellant to leave. She testified that he responded, ‘“I took you to the store,’ like

[she] owed him.” “I don’t know,” she further stated to the jury.

      Complainant testified that when she told Appellant to leave, he grabbed

her arms, turned her around, and pulled her pajama pants and panties off. When

the prosecution asked her if she said anything to him, she replied, “I don’t

remember what I said. I just heard screaming in my head.” She testified that he

held her down and raped her. At trial, she testified that Appellant ejaculated,

although she had told the detective investigating the incident that she was unsure

whether Appellant ejaculated. She testified that she did not remember what she

had told the detective. She also testified that after he raped her, Appellant ran

out the front door, to the left and onto the parking lot.      She had previously

testified that she believed her apartment was on the third floor. Complainant

testified that she put on her pajama pants, grabbed her phone, followed

Appellant out onto the parking lot, and called 911.

      When the defense asked Complainant on cross-examination whether she

had been talking to someone on her cell phone in the stairwell before meeting up

with her neighbors, she replied, “Possibly.” She conceded that it was possible


                                         4
that she had told the police that she had been in the stairwell talking on her cell

phone but said that she did not “remember.”        She also admitted that it was

possible that the people in the hall had come into her apartment but denied

remembering whether they had. The defense asked her more than once whether

she spoke in person to anyone other than Appellant and his friends. She denied

she had but also testified, “Not that I remember.”          Although she denied

remembering what she and Appellant had talked about, she admitted that he had

told her that he was from San Diego. On cross-examination, the defense asked

Complainant whether she had initiated the kissing. She denied having a memory

of it but conceded that it was “[a]bsolutely” possible that she had initiated the

kissing.

      The defense began inquiring how Complainant had reached the hospital

for the sexual assault examination. She testified that she had been taken by

ambulance and that her friend Ryan Bradshaw had brought her home. But the

trial court did not allow Appellant to inquire about Complainant’s relationship with

Bradshaw. Complainant denied that Bradshaw had been in her apartment earlier

that day but admitted that he had likely driven her from her apartment to the

police department for her interview with the investigating detective. Later she

admitted that Bradshaw had in fact come to her apartment to take her to the

police department because she had called him.          Complainant admitted that

Bradshaw had come into the interview room when the detective stepped out.

She also admitted that he had stayed in the room with her for fifteen minutes and


                                         5
consoled her. The defense attempted to ask Complainant exactly how Bradshaw

had comforted her, but the trial court would not allow the questions and sustained

the State’s objections.

      The defense then attempted to further clarify the events of the evening,

asking whether Complainant had actually been in the hallway arguing with

Bradshaw the evening she claimed she had gone into the hallway to smoke.

Again, her testimony waffled, and she testified, “I honestly don’t remember all the

details of that day.” In response to this admission, the defense asked, “Is it

possible that Ryan was at your apartment and the two of you were arguing

before these four guys [Appellant and his friends] got involved?” Complainant

replied, “I guess it could be possible.” Complainant also admitted she did not

remember what she had told the investigating detective or what she had told the

examining nurse about whether Appellant had ejaculated or where he had tried

to touch her.

      Outside the presence of the jury, the defense inquired about Complainant’s

statements that she made to treatment providers while she was a patient at

Millwood, a substance abuse treatment facility that provided Complainant both

out-patient and in-patient treatment after the alleged assault. The defense also

asked Complainant about statements she made to the sexual assault nurse

examiner (SANE) who performed her sexual assault examination. The defense

attempted to elicit testimony that Complainant had said

    that she had not accepted the fact that she was raped;


                                        6
     that she was a love addict;

     that she had previously accused a friend’s husband of assaulting her;

     that she had herpes; and

     that she was mixing Zoloft with alcohol on the night in question.

      Complainant testified outside the presence of the jury while the defense

was making its proffer,

      Q.      . . . And you also know you’re not supposed to take alcohol
              with Zoloft; is that correct?

      A.      I’m a recovering alcoholic. I drink alcohol with everything.

      The prosecution objected that the proffered testimony was hearsay, not

relevant to the elements of the case, and inadmissible under evidentiary rule 404.

The defense argued that the evidence was relevant and admissible so the jury

“c[ould] get the whole picture of the situation.” The visiting judge sustained the

prosecution’s objections.      The defense then asked if, without mentioning

Millwood, it could at least ask Complainant whether she had stated that she had

not completely accepted the fact that she had been raped. The judge again

sustained the prosecution’s hearsay objection. The defense pointed out that the

witness’s statement was admissible, but the trial court again sustained the

objection. The defense then asked if all the matters covered by the proffer would

be excluded and the judge stated that they would be. The defense excepted to

the ruling.




                                          7
       Before the jury, the defense asked Complainant whether she had testified

she did not scream out when the alleged assault was occurring. She corrected

counsel, stating, “No, I did not say that. I said I don’t remember screaming. All I

can hear is screaming in my head.” She admitted that she did not remember “a

lot of details.”

                   Denial of Appellant’s Right to Present His Defense

       This is a traditional “he said, she said” case, a swearing match between

Appellant and Complainant. The issue of sexual intercourse was uncontested.

The only contested issue was consent. Appellant’s defense was not promiscuity.

It was that the sexual activity was consensual. At the very least, the defense was

that a reasonable person would have believed the sexual activity was

consensual. The excluded testimony was offered to show Complainant’s inability

to recall the events and to explain her conduct on the night of the alleged assault.

       The Issues

       In his first two points, Appellant argues that the trial court abused its

discretion and erred by limiting his cross-examination of Complainant and the

SANE, violating his constitutional rights to due process and confrontation. Within

the discussion of his points, he also contends that the trial court’s error violated

his constitutional right to present his defense.




                                           8
      Preservation

      The State argues that Appellant’s first and second issues are “improperly

presented” and not preserved and, that, consequently, this court should not

consider them. We disagree.

      Both the State and the conscientious dissent confuse the requirements for

preserving a complaint that evidence was improperly excluded with the

requirements for preserving a complaint that evidence was improperly admitted.

The dissent relies on Vasquez v. State,2 a case addressing preservation of error

when evidence is improperly admitted, for the requirements for preserving error

when evidence is improperly excluded. Respectfully, the dissent’s contention

that objection is required to preserve a complaint that evidence is improperly

excluded is incorrect.

      Rule 103 of the rules of evidence establishes the distinctly different modes

of preserving error in the admission of and in the exclusion of evidence:

      (a)    Preserving a Claim of Error. A party may claim error in a
      ruling to admit or exclude evidence only if the error affects a
      substantial right of the party and:

               (1)   if the ruling admits evidence, a party, on the record:

                     (A)   timely objects or moves to strike; and

                     (B) states the specific ground, unless it was apparent
                     from the context; or



      2
          483 S.W.3d 550 (Tex. Crim. App. 2016).



                                           9
                (2) if the ruling excludes evidence, a party informs the court of
                its substance by an offer of proof, unless the substance was
                apparent from the context.3

When evidence is improperly admitted, objection is required to preserve the

complaint.4 When evidence is improperly excluded, no objection is required, but

a proper offer of proof is required.5 As the Holmes court has explained,

             This court has recognized a distinction between the general
      rule in Rule 103(a)(2) and the case in which the defendant is not
      permitted to question a State’s witness about matters that might
      affect the witness’s credibility.

            In the latter case, the defendant need not show what his
      cross-examination of the witness would have affirmatively
      established; he must merely establish what general subject matter
      he desired to examine the witness about during his cross-
      examination and, if challenged, show on the record why such should
      be admitted into evidence. In such a case the trial court’s ruling has
      prevented a defendant from questioning a State’s witness about
      subject matters which affect the witness’s credibility, that is, matters
      which might show malice, ill feeling, ill will, bias, prejudice, or
      animus.6

      Appellant did exactly what he was supposed to do. He told the trial court

clearly what evidence he wanted the jury to hear, the prosecution objected, and

the trial court sustained the objections, thereby holding that Appellant could not


      3
          Tex. R. Evid. 103 (emphasis added).
      4
          Id.
      5
          Id.; see, e.g., Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App.
2009).
      6
       Holmes, 323 S.W.3d at 168 (internal quotation marks and footnotes
omitted).



                                           10
present his impeachment evidence before the jury. He therefore preserved his

complaints about the exclusion of evidence.

      Appellant also preserved his related constitutional complaints.           Both

criminal and civil courts in Texas have long recognized that our trials are not silly

games of “Mother, may I?”7        “[A] party need not spout magic words . . . to

preserve an issue as long as the basis of his complaint is evident to the trial

court.”8 “Straightforward communication in plain English will always suffice.”9

Appellant made clear to the trial court that his defense was grounded in the

evidence he sought to elicit in the cross-examinations he was blocked from

presenting to the jury. That is, Appellant effectively communicated to the trial

court that the complained-of rulings denied him the right to present his defense

and prevented him from telling the jury “the rest of the story” so they “c[ould] get

the whole picture.” We therefore hold that Appellant preserved his points at trial.

      Adequate Briefing

      Appellant likewise makes clear to this court what his complaints are. His

stated points explicitly raise issues of confrontation, cross-examination, and due

process. He also quotes and emphasizes an excerpt from the Texas Court of

      7
          Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50, 63 (Tex. 2007).
      8
       Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) (internal
quotation marks and citation omitted).
      9
       Pena v. State, 353 S.W.3d 797, 807 n.8 (Tex. Crim. App. 2011) (internal
quotation marks and citation omitted).



                                          11
Criminal Appeals’s Hammer opinion, written by Judge Cochran for a unanimous

court, and then relies on it in raising his complaint about the trial court’s denying

him the right to present his defense:

               [T]he constitution is offended if the state evidentiary
               rule would prohibit him from cross-examining a
               witness concerning possible motives, bias, and
               prejudice to such an extent that he could not
               present a vital defensive theory.
      Hammer v. State, 296 S.W.3d 555, 56[3] (Tex. Crim. App. 2009)
      [(]footnotes omitted; emphasis added[)].
             Here, the trial court’s rulings did not allow jurors to fairly and
      fully evaluate the complainant’s credibility and fully present a vital
      defensive theory.10
Thus, on appeal, Appellant clearly raises the trial court’s improper denial of his

constitutional rights of confrontation and cross-examination as well as the trial

court’s improper denial of his right to present his defense. These are the issues

addressed by the Texas Court of Criminal Appeals in Johnson v. State,11 and

they are the essence of the Crawford v. Washington12 decision.           Appellant’s

issues are clearly presented, and his argument and contentions are easily

understood by the court. We, therefore, hold that Appellant’s complaints were

preserved at trial and are adequately briefed in this court. We shall address

Appellant’s first and second points.


      10
           Appellant’s Brief at 6.
      11
           490 S.W.3d 895 (Tex. Crim. App. 2016).
      12
           541 U.S. 36, 57, 124 S. Ct. 1354, 1367–68 (2004).



                                         12
      Substantive Law

      Appellant argues that the trial court’s exclusion of the evidence improperly

limited cross-examination that would reveal Complainant’s motive or bias and

that it therefore violated his Sixth Amendment protections, quoting Hammer:

             Trials involving sexual assault may raise particular evidentiary
      and constitutional concerns because the credibility of both the
      complainant and defendant is a central, often dispositive, issue.
      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. Thus, the Texas
      Rules of Evidence, especially Rule 403, should be used sparingly to
      exclude relevant, otherwise admissible evidence that might bear
      upon the credibility of either the defendant or complainant in such
      “he said, she said” cases. And Texas law, as well as the federal
      constitution, requires great latitude when the evidence deals with a
      witness’s specific bias, motive, or interest to testify in a particular
      fashion.

              But, as the Supreme Court noted in Davis v. Alaska, there is
      an important distinction between an attack on the general credibility
      of a witness and a more particular attack on credibility that reveals
      “possible biases, prejudices, or ulterior motives of the witness as
      they may relate directly to issues or personalities in the case at
      hand.” Thus, under Davis, “the exposure of a witness’ motivation in
      testifying is a proper and important function of the constitutionally
      protected right of cross-examination.” However, as Justice Stewart
      noted in concurrence, the Court neither held nor suggested that the
      Constitution confers a right to impeach the general credibility of a
      witness through otherwise prohibited modes of cross-examination.
      Thus, the Davis Court did not hold that a defendant has an absolute
      constitutional right to impeach the general credibility of a witness in
      any fashion that he chooses. But the constitution is offended if the
      state evidentiary rule would prohibit him from cross-examining a




                                        13
      witness concerning possible motives, bias, and prejudice to such an
      extent that he could not present a vital defensive theory.13

And in Carroll v. State, the Texas Court of Criminal Appeals stated:

      The Constitutional right of confrontation is violated when appropriate
      cross-examination is limited. The scope of appropriate cross-
      examination is necessarily broad. A defendant is entitled to pursue
      all avenues of cross-examination reasonably calculated to expose a
      motive, bias or interest for the witness to testify. When discussing
      the breadth of that scope we have held,

               . . . [.] Evidence to show bias or interest of a witness in
              a cause covers a wide range and the field of external
              circumstances from which probable bias or interest may
              be inferred is infinite. The rule encompasses all facts
              and circumstances, which when tested by human
              experience, tend to show that a witness may shade his
              testimony for the purpose of helping to establish one
              side of the cause only.14

      As Appellant points out, these words of the Texas Court of Criminal

Appeals are applicable in this situation, where the trial court sustained the

prosecutor’s objections and limited Appellant’s right to cross-examination.

      Citing the discussion of the issue in Virts v. State,15 Appellant argues that

this rule also applies to the ability to cross-examine a witness regarding a

mental state that might affect her ability accurately to perceive, to recall, and to

recount the events to which the witness is called to testify:


      13
        296 S.W.3d at 561–63 (footnotes and citations omitted) (quoting Davis v.
Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)).
      14
           916 S.W.2d 494, 497–98 (Tex. Crim. App. 1996) (citations omitted).
      15
           739 S.W.2d 25 (Tex. Crim. App. 1987).



                                           14
      [T]his Court has often stated and discussed the fact that one of the
      greatest constitutional rights that an accused person might have is
      the right to confront and cross-examine the State’s witnesses . . . .

              . . . [W]e believe that it is still necessary to point out, for
      emphasis purposes, that the right of cross-examination by the
      accused of a testifying State’s witness includes the right to impeach
      the witness with relevant evidence that might reflect bias, interest,
      prejudice, inconsistent statements, traits of character affecting
      credibility, or evidence that might go to any impairment or disability
      affecting the witness’s credibility.16

      More recently, the Texas Court of Criminal Appeals has addressed the

right of a person charged with a criminal offense to cross-examine his accuser on

issues that would aid the jury in assessing the accuser’s credibility. In Johnson,

the Court reminded us that a defendant has a constitutional right to present his

defense to the jury so that the jury may weigh his evidence along with the rest of

the evidence presented.17

      Analysis

                Error

      The testimony the trial court excluded, both from the SANE and from

Complainant, supported Appellant’s defense at trial that Complainant’s

testimony, recollections, judgments of reality, and conduct rendered her claims of

rape suspect and not worthy of belief. Before the jury, Complainant testified that

she had gone out drinking. She returned to her apartment, put on her pajamas,


      16
           Id. at 29.
      17
           490 S.W.3d at 914–15.



                                        15
continued drinking, went into the hall to smoke, and “needed to bum” a cigarette

from one of the men in a nearby group of smokers. At trial, Complainant did not

remember which floor her apartment was on or whether the men gave her a

cigarette. She did remember that

            she asked Appellant to take her to the store “to buy cigarettes after
             I—I don’t remember”;

            they drove to a gas station, bought cigarettes, and rented a movie;
             and

            they were flirting.

When they left the gas station, they went to Complainant’s apartment, where she

made a drink and “put the movie in.” When asked whether she made a drink for

Appellant, she replied, “I think so.”

      While they were watching the movie, Complainant and Appellant began

kissing. At trial, the following exchange occurred between the prosecutor and

Complainant:

      Q.     After some kissing, do things stop, or does anything else
             progressively happen?

      A.     Things progressively happen.      I don’t—I don’t remember
             everything exactly.

      Q.     Okay. Do you remember, other than kissing, the Defendant
             trying to touch you?

      A.     Yes.

      Q.     Okay. Do you remember where he was trying to touch you?

      A.     No.




                                        16
      Complainant did remember that she was not “okay with the touching” and

asked Appellant to leave. She testified that instead of leaving, he told her, “I took

you to the store.” She testified that she stood up and expected him to leave.

She did not testify that she told him to leave a second time, but the prosecutor

asked her what Appellant had done when she again told him to leave. She

responded to the leading question that he grabbed her arms and turned her

around. When asked if Appellant acted aggressively, she agreed that he did.

      Complainant testified that Appellant pulled her pajama pants and panties

off and that she resisted. But she also testified, “I don’t remember what I said. I

just heard screaming in my head.” She testified that she heard Appellant unzip

his pants, and then he raped her. Although he was behind her and she could not

see him, she testified that she knew he did not use a condom. She also testified

that Appellant ejaculated. When asked if she remembered telling a police officer

that she did not know whether Appellant had ejaculated, she said she did not

remember telling the officer that.    Complainant testified that after raping her,

Appellant ran “[o]ut the front door and to the left into the parking lot.”       This

testimony is confusing if the assault occurred in her second- or third-floor

apartment.     While the prosecutor attempted to clarify for the jury what

Complainant meant—by referring to and pointing to places on an unidentified

exhibit, the cold appellate record does not provide similar aid to this court.

      On cross-examination, Complainant testified that she did not remember




                                         17
            whether she had told a police officer that she was talking on her cell
             phone in the stairwell before speaking to the men smoking in the
             hallway, but it was possible;

            whether she had invited the men into her apartment, but it was
             possible;

            how it was determined which store they would go to for cigarettes;

            whether Appellant went into the store with her or waited in the car;

            what movie they rented (but she did think she would have chosen it);
             or

            what she and Appellant talked about in the car and afterward in her
             apartment.

She did remember that both she and Appellant had been drinking and that they

did talk on the way to the store.

      When defense counsel asked whether they had talked about Appellant’s

having moved a lot because his father was an evangelist, the prosecutor

objected: “He’s specifically trying to show he’s a preacher’s boy. That could

resonate with them. There’s plenty of other questions that could be asked.” The

trial court sustained the objection.   The trial court also sustained the State’s

objection to an inquiry whether Appellant had told Complainant that he provided

care for his mother, who had cancer.

      Complainant’s testimony then became even more confusing. She testified

that the kissing was mutual but did not remember saying that she had initiated

the kissing, although it was “absolutely possible” that she had initiated it. She

testified that she did not remember telling the 911 officer that she did not know

anything about Appellant, although she had just heard herself say it on the

                                        18
911 recording played for the jury. Nor did she remember telling the officer on the

scene that Appellant’s name was Josh or Joshua and that he was from San

Diego and now lived in Arlington. She only remembered saying he was from

California.   She denied saying he was half-black and half-white.       But when

defense counsel charged her with having told the 911 officer that she did not

know anything about Appellant, yet telling the officer a great deal about him, she

responded, “I would not call saying he’s from San Diego knowing a lot about

him.”

        Complainant testified that she did not remember how she arrived at the

police department to be interviewed but that her friend Ryan Bradshaw might

have taken her. She later admitted that she had called Ryan to ask for a ride to

the police department. She also admitted that Ryan might have been in her

apartment at some point during the day, after having previously denied it:

        Q.    Is it possible that Ryan was at your apartment and the two of
              you were arguing before these four guys got involved?

        A.    I guess it could be possible.

Appellant was not allowed to ask her about her relationship with Ryan and what

might have happened between them earlier in the day.

        Complainant remembered that Ryan came into the interview room. The

trial court would not allow defense counsel to discuss anything that occurred

between Complainant and Ryan while the detective was out of the interview

room.



                                          19
      Outside the presence of the jury, Appellant elicited evidence of

Complainant’s statements while at Millwood, a hospital for treatment of addiction

and mental health problems to which she had been admitted multiple times, as

well as other relevant testimony:

           While she did not remember telling Millwood staff, “I’m a love addict
            and it sucks?”, Complainant admitted that it was possible that she
            had said that;

           Her Millwood records indicated that she had said that she had not
            accepted the fact that she had been raped;

           [Defense Counsel]: Judge, the line here says, “Therapist
            stated that it sounded like patient learned to manipulate men,
            and patient held back tears as she said she did not want to be
            that type of person.” And my question to her is: “Does she
            recall something like that happening, and is it possible that
            that’s what they wrote?”

            Complainant denied that this statement from her Millwood medical
            records was an accurate assessment;

           Complainant believed that she was “a giant problem” to everyone;
           Complainant had been assaulted by her roommate’s husband, but
            the charges were dropped;
           Someone in the John Peter Smith emergency room had given
            Complainant Xanax for a panic attack;
           Complainant was on anti-anxiety medication before and at the time
            of the alleged rape. She took Zoloft for anxiety and took it with
            alcohol. She stated outside the jury’s hearing, “I’m a recovering
            alcoholic. I drink alcohol with everything”; and
           Complainant had herpes during her Millwood stay and at trial.




                                       20
The prosecutor objected to the admission of all this evidence as hearsay, not

relevant, and not admissible under Rule 404 of the rules of evidence.18 The trial

court sustained the objection and noted Appellant’s exception to the ruling

(although exception is no longer required to preserve the complaint).19

      Complainant could remember some of the events of the evening but not

all, she had a history of erratic behavior, and she admitted that she had ingested

Zoloft and alcohol on the night in question, and perhaps Xanax. She also had a

history of in-patient treatment for addiction and mental health issues. All this

evidence was provided to the SANE as part of Complainant’s medical diagnosis

and treatment and was admissible under Rule 803(4) of the rules of evidence.20

The SANE testified after Complainant. Although the State questioned the SANE

before the jury about those portions of Complainant’s medical history that

supported the prosecution’s case, the trial court prevented Appellant from cross-

examining her fully. The trial court blocked him from presenting evidence before

the jury that supported the theory of the defense. That is, the trial court allowed

the State to present to the jury a portion of the medical history, but Appellant was

not allowed to offer “the rest of the story” as the rule of optional completeness


      18
           See Tex. R. Evid. 404.
      19
           See Tex. R. App. P. 33.1(c).
      20
      See Tex. R. Evid. 803(4); Reed v. State, 497 S.W.3d 633, 638 (Tex.
App.—Fort Worth 2016, no pet.).



                                          21
contemplates.21 Appellant’s bill preserving error covers more than fifteen pages

and includes multiple explanations of grounds for admissibility of the evidence.

Any trial judge would have understood that Appellant was requesting full cross-

examination in order to present his defense to the jury, as well as the reasons the

excluded evidence was relevant and admissible.

      Generally, Complainant’s testimony was contradictory and difficult to

follow. But Appellant was not allowed to offer his reasons for the contradictions

or his reasons that her testimony was unreliable. That is, he was not allowed to

present his defense or to fully impeach Complainant. We therefore hold that the

trial court erred by excluding the proffered evidence, thereby violating Appellant’s

constitutional right to present a defense.22

               Harm

      Under Texas Rule of Appellate Procedure 44.2(a), if the appellate record

reveals a constitutional error, we must reverse a judgment of conviction unless

we determine beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.23         When the trial court sustained the prosecution’s

objections to



      21
           See Tex. R. Evid. 107.
      22
           See Holmes, 323 S.W.3d at 173.
      23
           Id. at 173–74.



                                            22
              Appellant’s attempts to offer evidence to challenge Complainant’s
               ability to remember the events of the evening and her ability to
               accurately perceive the events, and to highlight her erratic behavior
               that might have affected his perception of consent or lack of
               consent;

              his attempts to offer medical reasons to explain Complainant’s
               physical and emotional condition that evening; and

              indeed, his attempts to offer his entire defense;

the trial court effectively deprived Appellant of his constitutional rights to due

process, to confront his accusers, and to offer a defense.

      Appellant told the jury he wanted to give them “the rest of the story.” He

said, “[T]here are gaps in this case, and we’re going to try to plug those gaps for

you and let you see what really happened on that day.” He made clear to the

trial court that he wanted to present his defense and the trial court said no. He

argued on appeal that “the trial court’s rulings did not allow jurors to fairly and

fully evaluate the complainant’s credibility and fully present a vital defensive

theory,” citing Davis24 and Hammer.25 Appellant wanted the jury to hear the rest

of the medical evidence, evidence of Complainant’s mental status, of her existing

pattern of substance abuse and its effects, and of her relationship with the man

Appellant contends was her boyfriend in the hours before she invited Appellant

into her apartment and after her outcry to police. To put it simply, Appellant


      24
           415 U.S. at 316, 94 S. Ct. at 1110.
      25
           296 S.W.3d at 561–63.



                                           23
wanted the jury to hear evidence that would allow them to judge Complainant’s

credibility and her ability accurately to report events as well as her motives and

biases that would affect her testimony. The jury did not hear that evidence and

therefore did not have the whole picture when determining Appellant’s guilt and

punishment. We therefore cannot conclude that the trial court’s error had no

effect on the jury verdict and sentence and must hold that it was harmful.

      Neither the trial court nor the parties had the benefit of the reasoning and

holding of the Texas Court of Criminal Appeals in Johnson v. State.26            The

Johnson court explained,

             In a case such as this, where the believability of the
      complainant forms the foundation of the State’s case, Texas law
      favors the admissibility of evidence that is relevant to the
      complainant’s bias, motive, or interest to testify in a particular
      fashion. “[G]enerally speaking, the Texas Rules of Evidence permit
      [a] defendant to cross-examine a witness for his purported bias,
      interest, and motive without undue limitation or arbitrary prohibition.”

               ....

             The Texas Rules of Evidence permit the defendant to cross-
      examine a witness for his purported bias, interest, and motive
      without undue limitation or arbitrary prohibition. Rule 404(b) permits
      the defense, as well as the prosecution, to offer evidence of other
      acts of misconduct to establish a person’s motive for performing
      some act—such as making a false allegation against the defendant.
      Rule 613(b) permits a witness to be cross-examined on specific
      instances of conduct when they may establish his specific bias, self-
      interest, or motive for testifying. Rule 412 specifically addresses the
      admissibility of evidence of a victim’s past sexual behavior. Such
      evidence is admissible if it “relates to the motive or bias of the

      26
           490 S.W.3d 895 (Tex. Crim. App. 2016).



                                        24
      alleged victim” or “is constitutionally required to be admitted,” and if
      “the probative value of the evidence outweighs the danger of unfair
      prejudice.” 27

      Following Johnson, we hold that the evidence Appellant wanted the jury to

hear was “constitutionally required to be admitted,” and the trial court therefore

reversibly erred by excluding it and thereby preventing Appellant from presenting

his defense to the jury.        We sustain Appellant’s first two points, which are

dispositive. We do not reach his remaining points.28

                                       Conclusion

      Having sustained Appellant’s first two points, which are dispositive, we

reverse the trial court’s judgment and remand this case to the trial court for retrial

with the benefit of guidance from the Johnson court.



                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

EN BANC

LIVINGSTON, C.J., filed a dissenting opinion in which WALKER, GABRIEL, and
KERR, JJ., join.

PUBLISH

DELIVERED: July 27, 2017


      27
           Id. at 910 (citations omitted).
      28
           See Tex. R. App. P. 47.1.



                                             25
