Opinion issued November 20, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-12-01125-CR
                           ———————————
                     GARY WAYNE WILSON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 209th District Court
                           Harris County, Texas
                       Trial Court Case No. 1068173


                          DISSENTING OPINION

       Gary Wayne Wilson was convicted of aggravated sexual assault of a child,

and the jury assessed his punishment at life imprisonment. 1 Wilson’s position

before this Court is that the trial court erred by excluding the testimony of his

1
      See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (West Supp. 2014).
friends and family regarding his character for moral and safe conduct around

young children and that the error deprived him of his only meaningful defense. I

concur that the trial court’s exclusion was error and that Wilson preserved this

argument for our review, however, I do not believe the error is constitutional error

such that Wilson was deprived of a fair trial, and respectfully dissent.

                             Non-Constitutional Error

      It is well-established that the erroneous admission or exclusion of evidence

is generally considered non-constitutional error. Melgar v. State, 236 S.W.3d 302,

308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). The erroneous exclusion of

evidence, however, can rise to the level of constitutional error under very limited

circumstances, including when the excluded evidence “forms such a vital portion

of the case that exclusion effectively precludes the defendant from presenting a

defense.” Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). Cases

involving such constitutional errors are rare exceptions to the rule. See id. at 663

(“Erroneous evidentiary rulings rarely rise to the level of denying the fundamental

constitutional rights to present a meaningful defense.”)

      The excluded evidence in this case consists of opinion testimony from seven

of Wilson’s family members and a close friend (Wilson’s two daughters, a son, a

niece, a nephew, his brother, and his brother’s girlfriend) who would have testified

that they had a “good” opinion concerning Wilson’s character in regard to his



                                          2
moral and safe conduct around children. The majority states that:

      A review of the record indicates, then, that [Wilson]’s sole available
      defense was the testimony of his friends and family that such actions
      are not in keeping with his character. That testimony did not only go
      to the heart of his defense. See Wiley, 74 S.W.3d at 405. It was the
      sum total of his defense. Additionally, [Wilson]’s credibility and
      character are pivotal matters in this case. See Hammer, 296 S.W.3d at
      561. Accordingly, we hold that the exclusion of the evidence was
      constitutional error.2

      I strongly disagree that Wilson’s sole available defense at trial was that the

acts alleged were “not in keeping with his character.” Wilson’s defense, as

illustrated by the record, was that K.M. was a manipulative child with severe

psychiatric issues who was fabricating these allegations of abuse. When the

complainant testifies that the defendant sexually assaulted him, as in this case, the

defensive theory that “sexually assaulting young boys is not in keeping with my

character” is a natural corollary to the theory that “the duplicitous and mentally



2
      I also note that the majority’s application of constitutional harm analysis in this
      case effectively creates an impossible test under which no constitutional error
      could ever be considered harmless when issues of witness credibility and
      reliability are involved. The majority reasons that as an appellate court with
      nothing but a cold record, it cannot “assess how the jury would have assessed the
      credibility of the seven witnesses offered by the defense to testify on [Wilson]’s
      good character regarding moral and safe conduct around children,” and therefore,
      it cannot “determine[] beyond a reasonable doubt that the error did not contribute
      to [Wilson’s] conviction or punishment.” Despite the acknowledgement that a cold
      record is ill suited for determinations of credibility, the majority opinion
      nevertheless discounts the testimony of K.M.’s sister and the State’s other
      witnesses and even goes so far as to suggest that K.M.’s sister “could have
      motivations to testify other than to give an unaltered account of what she
      observed, a matter that could be informed by determinations of credibility.”

                                           3
disturbed boy is fabricating these claims of abuse”—the latter theory is the one

Wilson advanced at trial. One theory is intrinsically linked with the other.

      The boy’s lengthy history of behavioral, legal, and psychiatric problems

were extensively explored during Wilson’s cross-examination of his father and

K.M.’s doctors. 3 Indeed, Wilson’s jury argument highlighted the unreliability of

K.M.’s testimony, and maintained, as such, that the State had failed to carry its

evidentiary burden. Thus, it is evident from the record that the proffered testimony

from Wilson’s family and close-family friends regarding his character for moral

and safe conduct around young children did not constitute the “sum total of his

defense.” It is further evident that this evidence would, at most, have only

“incrementally” advanced Wilson’s defensive theory of fabrication by indirectly

attacking K.M.’s credibility. See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim.

App. 2005) (holding erroneously excluding testimony that incrementally furthers

defense is non-constitutional error). Moreover, the fact that Wilson was unable to

present positive character testimony does not necessarily mean that the error was

of a constitutional magnitude, especially in such a case as this with physical and

corroborating evidence. See, e.g., Hammer v. State, 296 S.W.3d 555, 561–62 (Tex.

Crim. App. 2009) (stating that credibility of complainant and defendant “is a

central, often dispositive, issue” in sexual assault trials because “[s]exual assault

3
      Wilson could have cross-examined K.M. and further developed this defensive
      theory, but did not.

                                          4
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.”)

(emphasis added).

      As such, I would hold that the exclusion of the proffered testimony, while

erroneous, is non-constitutional error and, therefore, subject to Rule 44.2(b)

analysis.

                    Harm Analysis: Non-Constitutional Error

      Non-constitutional error must be disregarded unless the error affects the

defendant’s substantial rights. See TEX. R. APP. P. 44.2(b). A substantial right is

affected when an error has a substantial and injurious effect or influence in

determining a jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.

1997); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)

(stating that such error is harmless if, after reviewing entire record, reviewing court

has “fair assurance that the error did not influence the jury, or had but a slight

effect”). Accordingly, a criminal conviction should not be overturned based upon

non-constitutional error absent “grave doubt” by the reviewing court that the result

of the trial was free from the substantial effect or influence of that error. See

Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002). “Grave doubt”




                                          5
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.

      Our assessment of harm resulting from a non-constitutional error examines

the entire record and we “calculate, as much as possible, the probable impact of the

error upon the rest of the evidence.” Coble v. State, 330 S.W.3d 253, 280 (Tex.

Crim. App. 2010). To be considered, among other relevant factors, is the testimony

or physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, the character of the alleged error and how it might

be considered in connection with other evidence in case. Barshaw v. State, 342

S.W.3d 91, 94 (Tex. Crim. App. 2011).

      Despite the majority’s protestations to the contrary, the direct and

circumstantial evidence supporting the jury’s verdict in this case is extremely

strong, if not overwhelmingly so. See Motilla v. State, 78 S.W.3d 352, 357 (Tex.

Crim. App. 2002) (stating overwhelming evidence of guilt is one factor for court to

consider when assessing harm resulting from non-constitutional error). K.M.

testified with specific and graphic detail about four different violent sexual assaults

by Wilson, as well as various other instances of physical abuse. According to




                                          6
K.M., Wilson became more violent with him as time went on and even began using

duct tape to physically restrain the young boy while the abuse was occurring. 4

      Perhaps more importantly, K.M.’s testimony is corroborated by his sister,

who testified that she observed Wilson physically and sexually abuse K.M. on

several occasions. Like K.M., she was able to describe the sexual assault she

witnessed with specific detail for the jury. In particular, K.M.’s sister testified that

one day she was walking down the hallway of their house and noticed that K.M.’s

bedroom door was slightly ajar. She looked in and saw K.M. lying face-down on

the floor, naked, flailing his arms, with Wilson on his knees behind K.M., hunched

over the boy’s body. She heard her brother yelling for Wilson to get off him, and

she saw Wilson pinning K.M. down by holding his arms down, while he moved his

body back and forth on top of K.M. She testified that her initial failure to disclose

this sexual assault was due to Wilson’s threat to kill her and her father if she did.

She also corroborated K.M.’s testimony about Wilson’s other sexually

inappropriate behavior while living with them and their mother that at an expert

characterized as “grooming” (i.e., that Wilson walked around the house naked, had

sex with their mother in front of them, and that Wilson kept pornographic

magazines in the bathroom and on the living room coffee table).


4
      K.M. described one occasion for the jury when Wilson tied K.M.’s hands together
      with duct tape and bound the first or second grader to the frame of his bed so that
      he could not escape Wilson’s violent sexual assault.

                                           7
      Both K.M. and his sister’s testimony was further corroborated by Dr.

Donaruma, a child abuse pediatrician, who discovered an anal tear in the course of

her 2006 examination of K.M. consistent with sexual abuse. Donaruma explained

that such injuries are not only uncommon but consistent with repeated anal sexual

assault over a number of years. On cross-examination, Dr. Donaruma testified that

although there could be multiple explanations for the oval tear that she described,

given the “absence of a history of constipation, encopresis, or painful defecation,”

K.M.’s injury was “highly suspicious for the occurrence of penetrating anal

trauma.” (emphasis added).

      K.M.’s father and his elementary school counselor5 also testified that K.M.

began to act out at school and demonstrate significant behavioral problems

beginning in kindergarten/first grade—when Wilson began living with the family.

This evidence corroborates K.M.’s testimony that he started acting out at school

when he was in kindergarten and first grade as a result of the sexual and physical

abuse he was experiencing at home by Wilson. Specifically, K.M.’s guidance

counselor testified that towards the end kindergarten and beginning of his first

grade year, K.M., who had previously never exhibited behavioral problems in the

classroom, began to get very angry, very easily and was prone to emotional,

violent outbursts (e.g., kicking and screaming or pushing chairs). These behavioral
5
      The majority omits mentions of testimony from K.M.’s elementary school
      counselor, which corroborates K.M.’s and his father’s testimony.


                                         8
problems escalated to the point where he would run out of the classroom and onto

the playground and, if already on the playground, runaway from school altogether.

In October 2005, after she saw bruises on K.M.’s back and legs and scratches on

his neck and ear lobes, the counselor contacted CPS. K.M., in second grade at the

time, testified that he had confided Wilson’s physical abuse to the counselor.6

      The psychiatric testimony as to the improvement of K.M.’s attitude and

behavior once he moved out of the home he shared with his mother and Wilson

also supports this claim; as do K.M.’s PTSD diagnosis, history of suicidal ideations

at the tender age of seven or eight,7 the testimony of his father and two other

treating therapists/psychologists 8 about his behavioral and interpersonal problems,

and the testimony of Dr. Thompson that PTSD can be a sign of sexual abuse and

that sexually abused children exhibit characteristics such as depression, suicidality,

and interpersonal difficulties and often have problems dealing with authority

figures. The evidence corroborating K.M.’s and his sister’s testimony regarding the

sexual abuse is abundant.



6
      Six months later, in March 2006, K.M. told his therapist that Wilson had sexually
      assaulted him.
7
      K.M.’s psychiatrist testified that K.M. was hospitalized, in part, because the seven
      or eight-year-old boy had reported having suicidal ideations (i.e., wanting to kill
      himself) and hearing voices telling him to hurt his mother.
8
      In particular, therapist Sherry Taylor who began treating K.M. in January 2006
      and clinical psychologist Lisa Matthews who treated K.M. in 2012.


                                           9
      Absolutely crucial to note is that Wilson’s character is not critical to the

disposition of the present case because this is no simple “he said, she said” case—

here, there is evidence of an anal injury consistent with sexual abuse (“highly

suspicious for the occurrence of penetrating anal trauma,”) and other corroborating

testimony from K.M.’s father, sister, elementary school counselor, therapists, and

doctors. Cf. Hammer, 296 S.W.3d at 561–62 (stating that credibility of

complainant is important in sexual assault trials because “[s]exual 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.”) (emphasis added).

Sexual assault cases rarely have such compelling corroborating evidence.

      After reviewing the entire record in this case, including the ample evidence

supporting the jury’s verdict, I have “fair assurance” that the exclusion of Wilson’s

good character evidence “did not influence the jury, or had but a slight effect.”

After applying the proper non-constitutional harm analysis, I would hold that the

erroneous exclusion of the testimony from seven of Wilson’s close family and

friends was non-constitutional error and does not require reversal. Accordingly, I




                                         10
would affirm the trial court’s judgment.




                                                Jim Sharp
                                                Justice


Panel consists of Justices Jennings, Higley, and Sharp.

Justice Sharp, dissenting.

Publish. TEX. R. APP. P. 47.2(b).




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