                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00082-CR


STEVEN KEITH GREEN                                                APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                MEMORANDUM OPINION1
   ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                                   ----------

      After reviewing Appellant Steven Keith Green‘s petition for discretionary

review, we modify our opinion and judgment in this appeal. See Tex. R. App. P.

50. We withdraw our April 14, 2011 opinion and judgment and substitute the

following.




      1
       See Tex. R. App. P. 47.4.
                               I. INTRODUCTION

      Appellant Steven Keith Green appeals his conviction for three counts of

aggravated sexual assault of a child younger than seventeen years of age. In

two issues, Green argues that the trial court erred by denying his motion to

suppress and by excluding certain evidence of the complainant‘s past sexual

behavior. We will affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      H.G. is Green‘s biological daughter. H.G. lived with her mother until she

was eleven years old, when she moved in with Green and his wife Melissa.

When H.G. was thirteen, she went on a trip to California with Green. Green and

H.G. shared a bed in their hotel room, and one night, Green performed oral sex

on H.G. Green also had H.G. perform oral sex on him during the trip.

      The two continued performing oral sex on each other after they returned to

Texas.   At some point that year, while H.G. was still thirteen, Green began

having sexual intercourse with her. Green and H.G. had sex in her room twice a

week, and he always ejaculated into a towel. Melissa began noticing unusual

behavior between Green and H.G.—H.G. always got in bed with Green when

Melissa got up, they ―spoon[ed]‖ on the couch, and Melissa twice saw H.G. lying

on the couch with her face in Green‘s lap turned to his crotch. Green and H.G.

texted each other frequently when they were in the same room with Melissa.

Melissa moved out of the master bedroom and stayed in a different bedroom for

about two months; during that time, H.G. and Green shared the same bed ―every


                                       2
night.‖ Melissa thought the behavior was strange and even asked Green if he

was having a sexual relationship with H.G. Green responded that the accusation

was disgusting because H.G. was his daughter. Melissa ultimately moved out

when H.G. was fifteen or sixteen.

      After Green and Melissa separated, Green and H.G. continued living

together alone.    When H.G. was sixteen, she and Green moved into a two-

bedroom apartment in Crowley, where they continued to have sexual relations.

Green worked out of town, and H.G., who had dropped out of school, lived there

alone during the week. The two shared a bedroom in the apartment when Green

returned on weekends, and they had sex each weekend.

      H.G.‘s brother Daniel, who also stayed at the apartment from time to time,

testified that he always slept on the couch and that H.G. and Green slept in the

same bed together upstairs. Daniel testified that the living arrangements were

―weird‖ but that he ―just didn‘t want to think about it.‖

      H.G. eventually told her maternal uncle about her and Green‘s sexual

relationship. H.G., her uncle, her mother, and her stepfather went to the police

station to report Green to the authorities. Officer Kevin Newman of the Crowley

Police Department later escorted H.G. to the apartment she shared with Green to

get her things. While they were there, H.G. showed Officer Newman the bed she

and Green shared; she pointed out two towels on the floor beside the bed and

informed the officer that Green had ejaculated onto the towels the last time they




                                            3
had sex. Officer Newman took a sheet from the bed and the two towels for DNA

testing.

      DNA samples taken from the same quarter-inch section of one of the

towels matched H.G.‘s epithelial cells and Green‘s sperm cells. DNA samples

from the other towel and from the sheet also matched Green‘s sperm cells and

contained a minor component of epithelial cells compatible with H.G.‘s DNA.

      A jury found Green guilty of all three counts of sexual assault of a child,

and after a punishment hearing where the jury heard evidence of Green‘s prior

felony conviction for burglary of a vehicle, the jury assessed Green‘s punishment

at seventy-five years‘ imprisonment for each count. The trial court sentenced

Green accordingly, ordering that the sentences be served consecutively.

                            III. MOTION TO SUPPRESS

      In his first issue, Green argues that the trial court abused its discretion by

denying his motion to suppress the towels and bed sheet seized by Officer

Newman when he escorted H.G. to the apartment that she and Green shared.

Green argues that H.G., as a minor, lacked the capacity to consent to the search

of the bedroom.2


      2
       Green also argues on appeal that H.G lacked capacity to consent to a
search because she was no longer living at the apartment and that the search
was unreasonable because Officer Newman did not attempt to contact him
before the search. But Green did not present these arguments in his motion to
suppress or at the suppression hearing. Consequently, he failed to preserve
these arguments for appeal. See Tex. R. App. P. 33.1; Wilson v. State, 71
S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding issue not preserved when
objection at trial does not comport with issues raised on appeal); Martinez v.

                                         4
           A. Standard of Review and Law on Consent Searches

      The Fourth Amendment protects against unreasonable searches and

seizures by government officials. U.S. Const. amend. IV; Wiede v. State, 214

S.W.3d 17, 24 (Tex. Crim. App. 2007). A warrantless police entry into a person‘s

home is presumptively unreasonable unless it falls within the scope of one of a

few well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219,

93 S. Ct. 2041, 2043–44 (1973); Johnson v. State, 226 S.W.3d 439, 443 (Tex.

Crim. App. 2007). One such exception is a consensual entry. Schneckloth, 412

U.S. at 219, 93 S. Ct. at 2043–44 (1973); Johnson, 226 S.W.3d at 443.

      Consent to enter and search property can be given either by the individual

whose property is searched or by a third party who possesses common authority

over the premises. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793,

2797 (1990); Patrick v. State, 906 S.W.2d 481, 490 (Tex. Crim. App. 1995), cert.

denied, 517 U.S. 1106 (1996). The third party may, in her own right, give valid

consent when she and the absent, non-consenting person share common

authority over the premises or property. Hubert v. State, 312 S.W.3d 554, 560

(Tex. Crim. App. 2010); see United States v. Matlock, 415 U.S. 164, 171, 94 S.

Ct. 988, 993 (1974); Becknell v. State, 720 S.W.2d 526, 528 (Tex. Crim. App.

[Panel Op.] 1986), cert. denied, 481 U.S. 1065 (1987).       Common authority


State, 17 S.W.3d 677, 682 (Tex. Crim. App. 2000) (holding argument based on
lack of authority to consent to search was not preserved when only argument at
trial was voluntariness of consent).


                                       5
derives from the mutual use of the property, not the ownership or lack thereof.

Limon v. State, 340 S.W.3d 753, 756 (Tex. Crim. App. 2011); Matlock, 415 U.S.

at 171, 94 S. Ct. 988, Maxwell v. State, 73 S.W.3d 278, 282 (Tex. Crim. App.),

cert. denied, 537 U.S. 1051 (2002). The validity of an alleged consent to search

is a question to be determined from all the circumstances. Maxwell, 73 S.W.3d

at 282.

      We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review.       Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court‘s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). Determinations of actual

and apparent authority are reviewed de novo as mixed questions of law and fact.

Limon, 340 S.W.3d at 757. When a trial court does not enter findings of fact, as

here, a reviewing court must view the evidence in a light most favorable to the

trial court‘s rulings and assume that the trial court resolved any issues of

historical fact or credibility consistently with its ultimate ruling. See id.




                                            6
                            B. Authority to Consent

      Here, Green testified at the suppression hearing that he and H.G. lived in

the apartment together, that H.G. had a key, and that she was listed on the lease

as an occupant. The apartment had two bedrooms, one of which had a king-

sized bed in it and the other had a baby bed in it.3 The room with the king-sized

bed, which was the room from which Officer Newman took the towels and sheet,

was both H.G.‘s and Green‘s bedroom; according to Green, it was H.G.‘s room

when Green was out of town during the week, and it was his room when he was

at home on the weekends. Thus, based on the record from the suppression

hearing, the trial court could have found that H.G. had authority to consent to the

removal of these items from the bedroom because, at a minimum, she shared

common authority over the bedroom. See Hubert, 312 S.W.3d at 560; see also

Matlock, 415 U.S. at 171, 94 S. Ct. at 993; Becknell, 720 S.W.2d at 528.

      Thus, the question becomes whether the fact that H.G. was a minor

prevented her from being able to consent to the removal of items from the

bedroom that she shared with her father. The court of criminal appeals recently

rejected a per se rule that children may, or may not, consent to entry into a

residence.   Limon, 340 S.W.3d at 756.       The court explained, ―Under given

circumstances, and taking into account ‗widely shared social expectations‘ and



      3
      H.G. had a baby with another man. We will address the exclusion of this
evidence in Part IV of this opinion.


                                        7
‗commonly held understanding,‘ it may be reasonable or unreasonable to believe

that a child has authority to consent to a particular intrusion.‖ Id. at 257.

      Here, sixteen-year-old H.G. had been living in the apartment by herself five

days out of the week, with no adult supervision; she had been driving herself to

her job at a fast-food restaurant; and she had a five-month-old baby.           See

Russell v. State, 739 S.W.2d 923, 927 (Tex. App.—Dallas 1987, pet. dism‘d)

(holding sixteen-year-old defendant freely and voluntarily consented to search of

her residence when she said, and acted like, she was eighteen years old); see

also Limon, 340 S.W.3d at 758 (considering fact that minor ―appeared to be at

least a teenager of significant maturity, if not a young adult,‖ in holding that he

possessed apparent authority to consent to the entry into another‘s home).

Moreover, Officer Newman was not there to search the apartment for evidence of

a crime; he had accompanied H.G. there so that she could move her things out

of the house, and while there, she directed him to the sheet and towels. Viewing

the totality of the circumstances surrounding H.G.‘s consent, we hold that the fact

that she was a minor did not prevent her from freely and voluntarily consenting to

Officer Newman seizing the towels and bed sheet that she directed him to in the

bedroom that she shared with her father.         See Maxwell, 73 S.W.3d at 281.

Consequently, we hold that the trial court did not err by denying Green‘s motion

to suppress, and we overrule Green‘s first issue.




                                          8
                             IV. RULE 412 EVIDENCE

      In his second issue, Green argues that the trial court violated his

confrontation rights under the Sixth Amendment to the United States Constitution

by excluding evidence of H.G.‘s past sexual behavior. Green argues that the

evidence was admissible under Texas Rule of Evidence 412 (the ―rape shield

law‖) to show that H.G. had a bias against him and a motive to falsely accuse

him of sexual assault. The State contends that the evidence was not admissible

under rule 412 and that, alternatively, any error in excluding the evidence was

harmless.

                            A. Standard of Review

      We review a trial court‘s decision to admit or to exclude evidence under an

abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.

Crim. App. 2000); see also Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim.

App.) (explaining that a trial court ―maintains broad discretion to impose

reasonable limits on cross-examination to avoid, inter alia, harassment,

prejudice, confusion of the issues, endangering the witness, and the injection of

cumulative or collateral evidence‖), cert. denied, 522 U.S. 917 (1997).    A trial

court does not abuse its discretion as long as the decision to admit or to exclude

the evidence is within the zone of reasonable disagreement. Montgomery v.

State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh‘g).




                                        9
                     B. Confrontation Rights and Rule 412

      The Confrontation Clause of the Sixth Amendment to the United States

Constitution provides that, ―[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.‖ U.S. Const.

amend. VI; Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974).

The Sixth Amendment right of confrontation is a fundamental right and is

applicable to the states by virtue of the Fourteenth Amendment. Pointer v. State,

380 U.S. 400, 403, 85 S. Ct. 1065, 1067–68 (1965); Shelby v. State, 819 S.W.2d

544, 546 (Tex. Crim. App. 1991). The right to confront and to cross-examine is

not absolute and may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process. Allen v. State, 700 S.W.2d 924,

929, 931 (Tex. Crim. App. 1985) (holding that precursor to rule 412 was

constitutional and did not, on its face, violate accused‘s right to confrontation);

see also Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046

(1973). Moreover, the Constitution requires only the introduction of otherwise

relevant and admissible evidence. See United States v. Nixon, 418 U.S. 683,

711, 94 S. Ct. 3090, 3109 (1974).

      Texas Rule of Evidence 412, known as the rape shield law, governs the

admissibility of a complainant‘s prior sexual relationships with third parties in a

sexual assault case. See Tex. R. Evid. 412. Rule 412(b) provides that specific

instances of a victim‘s past sexual conduct are inadmissible unless (1) the

evidence falls within one of five categories of evidence listed in rule 412(b)(2),


                                        10
and (2) the trial court finds that the probative value outweighs the danger of

unfair prejudice. See Tex. R. Evid. 412(b). Even if the evidence falls within the

enumerated categories of rule 412(b)(2), the court must further find that the

probative value of the evidence outweighs the danger of unfair prejudice. See

Holloway v. State, 751 S.W.2d 866, 869–70 (Tex. Crim. App. 1988); Stephens v.

State, 978 S.W.2d 728, 732 (Tex. App.—Austin 1998, pet. ref‘d).

       Rule 412 attempts to limit abusive, embarrassing, and irrelevant inquiries

into a complainant‘s private life and to encourage victims of sexual assault to

report those crimes.    See Allen, 700 S.W.2d at 929; Wofford v. State, 903

S.W.2d 796, 798 (Tex. App.—Dallas 1995, pet. ref‘d). The court of criminal

appeals has expressed the rationale of provisions such as rule 412 by stating

that

       evidence of a rape victim‘s prior sexual activity is of dubious
       probative value and relevance and is highly embarrassing and
       prejudicial. Often such evidence has been used to harass the
       prosecuting victim. Sponsors of these statutes assert that they
       encourage victims of sexual assault to report the crimes without fear
       of having their past sexual history exposed to the public.

Allen, 700 S.W.2d at 929 (quoting Bell v. Harrison, 670 F.2d 656, 658 (6th Cir.

1982)).

                              C. Rule 412 Hearing

       At trial, defense counsel attempted to offer evidence that H.G. made the

sexual assault allegations against Green in retaliation for his bringing sexual




                                        11
assault charges against Donald Fincher, the father of her baby. The trial court

permitted defense counsel to make an offer of proof in a rule 412 hearing.

      During the hearing, H.G. testified that when she was fifteen, she and

Fincher, who was twenty-eight or twenty-nine at the time, had a sexual,

―voluntary relationship‖ for a few weeks. They had sex more than one time on a

single occasion, and H.G. got pregnant.4 In March 2007, H.G. told Green that

she was pregnant with Fincher‘s child, and Green forced her to go to the police

department to file charges against Fincher. H.G. testified that she did not want to

file charges, but she denied ever threatening Green that she would put him in jail

if she found out that he had anything to do with Fincher‘s prosecution. H.G.

ultimately went to the police station with Green, wrote a statement explaining

what had happened between her and Fincher, and submitted to a DNA test. In

November 2007, Green and H.G. learned that Fincher had accepted a ten-year

sentence for what he had done to H.G. That same month, H.G. told her uncle

about her sexual relationship with her father.

      Green also testified that H.G. had not wanted to file charges against

Fincher but that Green had told H.G. that her baby could be taken away if she

―did not do what was right.‖ According to Green, in March 2007, when H.G. told

him that she was pregnant, she threatened Green that ―if she found out that [he]

pressed charges [on Fincher], she would have [Green] put in jail as well.‖ Green


      4
       DNA testing revealed that Fincher was the father of H.G.‘s baby.


                                        12
said that H.G. only made that one threat.               Around Thanksgiving 2007,

approximately five months after the baby was born and nine months after H.G.

had allegedly threatened Green, Green and H.G. learned of Fincher‘s plea

bargain. Green testified that he ―didn‘t notice a reaction‖ in H.G. when they

heard the news.

      H.G.‘s uncle testified that H.G. had denied that Fincher was her boyfriend

and had instead told her uncle that she wanted to prosecute Fincher because he

had raped her.

      At the end of the rule 412 hearing, defense counsel argued that the

evidence was admissible ―to show bias or prejudice on the part of the victim in

this case, that she made at least one threat that she would see [Green] put in jail

over the Donald Fincher allegations and prosecution, and therefore, this is the

linchpin to our defense.‖ The trial court ultimately sustained the State‘s objection

to the introduction of any evidence that H.G. had sexual relations and a baby with

Fincher. The court stated, ―If you want to put your client on in front of [the] jury,

I‘ll let you do it, and I‘ll let you ask him . . . if [H.G.] ever threatened him. But you

won‘t go into the underlying – any underlying sex on the part of this witness.

That‘s a violation of the statute, the Texas law.‖

                                 D. Harmless Error

      We will assume that the trial court abused its discretion by prohibiting

Green from introducing the proffered testimony to support his defensive theory

and that the proffered evidence formed such a vital portion of Green‘s case that


                                           13
its exclusion effectively precluded him from presenting a defense; consequently,

we will conduct a harmless error analysis under rule 44.2(a). See Tex. R. App.

P. 44.2(a); Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007); Potier v.

State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002) (―[T]he exclusion of a

defendant‘s evidence will be constitutional error only if the evidence forms such a

vital portion of the case that exclusion effectively precludes the defendant from

presenting a defense.‖).

      Under rule 44.2(a), we must reverse unless we determine beyond a

reasonable doubt that the error did not contribute to Green=s conviction or

punishment. Tex. R. App. P. 44.2(a). The question is whether the trial court=s

failure to allow Green to introduce evidence of H.G.‘s past sexual behavior to

show her bias or motive to lie was harmless beyond a reasonable doubt. See

Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). In applying the

Aharmless error@ test, our primary question is whether there is a Areasonable

possibility@ that the error might have contributed to the conviction. Mosley v.

State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070

(1999).

      Our harmless error analysis should not focus on the propriety of the

outcome of the trial; instead, we should calculate as much as possible the

probable impact on the jury in light of the existence of other evidence. Wesbrook

v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944

(2001). We consider the source and nature of the error, the extent that it was

                                        14
emphasized by the State, its probable collateral implications, the weight a juror

would probably place on the error, and whether declaring it harmless would be

likely to encourage the State to repeat it with impunity.      Harris v. State, 790

S.W.2d 568, 587 (Tex. Crim. App. 1989). This requires us to evaluate the entire

record in a neutral, impartial, and even-handed manner, not ―‗in the light most

favorable to the prosecution.‘‖ Id. at 586 (quoting Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979)).

      After a careful and neutral review of the record, we conclude beyond a

reasonable doubt that the exclusion of this testimony did not contribute to

Green=s conviction or punishment. See Tex. R. App. P. 44.2(a). This is not just

a case of ―he said, she said.‖ Cf. Billodeau v. State, 277 S.W.3d 34, 42 (Tex.

Crim. App. 2009) (―In many sexual-assault cases, the only evidence linking the

accused to the offense is the complainant‘s accusations.‖); Wheeler v. State, 67

S.W.3d 879, 888 (Tex. Crim. App. 2002) (recognizing that in prosecutions for

sexual offenses, a successful conviction ―‗often depend[s] primarily on whether

the jury believe[s] the complainant, turning the trial into a swearing match

between the complainant and defendant‘‖ (citation omitted)); Kelly v. State, 321

S.W.3d 583, 594 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (noting, in

holding that exclusion of evidence was harmful under rule 44.2(a), that ―the

believability of the children‘s testimony is at the heart of this case‖). Rather, the

State presented scientific evidence showing that H.G.‘s epithelial cells and

Green‘s sperm cells were found on two towels next to the bed that they shared

                                          15
and on a sheet taken from their bed. Green‘s ex-wife and H.G.‘s brother both

testified to suspicious behavior between Green and H.G., including that they

shared a bedroom and spooned on the couch together with H.G.‘s face in

Green‘s crotch. Thus, while H.G.‘s testimony that her father had sexually abused

her was no doubt important to the State‘s case, the State also relied on other

testimony and scientific evidence to establish that Green had sexually assaulted

H.G.5 Cf. Stephenson v. State, 226 S.W.3d 622, 628 (Tex. App.—Amarillo 2007,

no pet.) (holding that when State presented no evidence tying defendant to crime

other than complainant‘s identification of defendant as perpetrator, wrongful

exclusion of defense expert testimony pertaining to reliability of eyewitness

      5
      The State emphasized the other evidence of guilt during closing
argument:

            But did the State bring you more [than H.G.‘s testimony]?
      Yes. The State brought you much more. The State brought you her
      brother, Daniel, who said when he spent the night, [H.G. and Green]
      went upstairs and spent the night together in the one bed in the
      house and came down together. That‘s strong evidence that a
      biological father is sleeping with his biological daughter.

             Was there more? Yes. We brought you more. We brought
      you the ex-wife, Missy. And what did she tell you? She constantly
      saw the two of them in bed together. She saw the two of them
      snuggling together on the couch in an [in]appropriate way. She said
      for the last month or two they were married, she was off in a totally
      different bedroom and [Green] and [H.G.] are sharing a bedroom
      every single night . . . .

            We have the two officers that investigated the case and filed
      the case and gathered the evidence. But is there even more? Yes.
      There is DNA. And [Green] cannot escape his DNA. That is the
      ultimate damning proof for this defendant.


                                       16
identification of suspect was harmful); Fox v. State, 115 S.W.3d 550, 564 (Tex.

App.—Houston [14th Dist.] 2002, pet. ref‘d) (holding as harmful under rule

44.2(b) the exclusion of evidence that supported defense‘s theory under doctrine

of chances when State‘s case boiled down to complainant‘s allegation of sexual

abuse, inconclusive physical evidence, and weak circumstantial evidence); see

also Reed v. State, No. 02-02-0055-CR, 2003 WL 1894581, at *7 (Tex. App.—

Fort Worth Apr. 17, 2003, pet. ref‘d) (op. on reh‘g) (not designated for

publication) (―The story told by the physical evidence in this case is simply so

strong that we cannot conclude the jury would have been influenced by . . .

testimony concerning the statement Samantha made in the emergency room.‖).

      Moreover, Green testified at the rule 412 hearing that H.G. had threatened

to ―put him in jail‖ if he reported Fincher to the police. While Green‘s testimony

shows that H.G. had threatened to tell the police about their relationship, it does

not establish that she threatened to falsely accuse him of sexual assault.6 And

the evidence shows that she made this threat a single time, months before she

actually made her outcry, and that at no point during the police investigation in

Fincher‘s prosecution did she ever tell the police about her relationship with

Green.

      6
       As the State points out, H.G. could have threatened to put Green in jail if
he pressed charges on Fincher because, according to her own testimony, she
thought that her relationship with Fincher was ―voluntary‖ and that ―it wasn‘t right‖
to prosecute him for their consensual relationship. And at trial, H.G. testified that
Green had once told her that if she ever told anyone about their relationship, he
―would go to jail for a long time.‖


                                         17
      We recognize that the jury is the ultimate factfinder on such issues as the

credibility of the witnesses and the weight to be given to their testimony. See

Billodeau, 277 S.W.3d at 43.        But in light of the strong scientific and

circumstantial evidence of Green‘s guilt and the tenuous implication that a single

threat to put Green in jail—made months before H.G. made her outcry—was a

threat to falsely accuse him, we cannot conclude that the jury would have been

influenced by the excluded testimony. See Wesbrook, 29 S.W.3d at 119. After

carefully reviewing the record and performing the required harm analysis under

rule 44.2(a), we hold beyond a reasonable doubt that the trial court=s alleged

error did not contribute to Green‘s conviction or punishment. See Tex. R. App. P.

44.2(a).

                                 V. CONCLUSION

      Having overruled Green‘s two issues, we affirm the trial court‘s judgment.



                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

MCCOY, J. filed a concurring opinion for which DAUPHINOT, J. joins.

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

DELIVERED: August 4, 2011




                                       18
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00082-CR


STEVEN KEITH GREEN                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


                                    ----------

          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                    ----------

               CONCURRING MEMORANDUM OPINION1
                                    ----------

      I concur in the result reached by the majority, but I would hold there was

error, in the suppression of evidence concerning H.G.‘s sexual relationship with

Donald Fincher.   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.‘‖ Hammer v.

      1
       See Tex. R. App. P. 47.4.
State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009) (quoting Davis v. Alaska, 415

U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)). Evidence of a victim‘s prior sexual

activity may be admissible under rule 412 when offered to establish the victim‘s

motive or bias against the defendant. Id. at 566.

      In the rule 412 hearing, Green argued that H.G. was angry at him when he

forced her to press charges against Fincher, the father of her child.          The

unsealed court records confirmed Fincher‘s paternity and H.G.‘s complaint

against Green coincided with Fincher‘s sentencing. Green testified that H.G.

threatened him that if he forced her to press charges against Fincher, she would

have him (Green) put in jail as well. H.G. testified that she had a ―voluntary

relationship‖ with Fincher, that she did not want to file charges against him, and

that Green had forced her to do so. She also denied threatening Green. H.G.‘s

uncle testified that H.G. told him that she wanted to prosecute Fincher because

he had raped her, which directly contradicted H.G.‘s testimony about the nature

of her relationship with Fincher. Taken together, the testimonial discrepancies

raise a fact question about possible motive or bias behind H.G.‘s complaints

against Green. Therefore, because H.G.‘s testimony was relevant for the jury to

determine motive or bias, and although it was harmless error, the trial court erred

by excluding it.


                                                    BOB MCCOY
                                                    JUSTICE

DAUPHINOT, J. joins.


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

DELIVERED: August 4, 2011




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