AFFIRMED; Opinion Filed July 11, 2013.




                                           In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas

                                     No. 05-11-01594-CR

                             DAMON ROBERTSON, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the Criminal District Court No. 4
                                  Dallas County, Texas
                          Trial Court Cause No. F-11-17405-K

                              MEMORANDUM OPINION
                           Before Justices Francis, Lang, and Evans
                                   Opinion by Justice Lang
       Damon Robertson appeals from his jury conviction for sexual assault. In a single issue,

he asserts the trial court erred in allowing the complainant to testify as to whether she sought

counseling following the assault.    Finding no reversible error, we affirm the trial court’s

judgment.

                                     I.     BACKGROUND

       The assault happened around midnight on April 16, 2011 in the parking lot of the Dallas

Area Rapid Transit (“DART”) Ledbetter rail station and was partially captured by security

cameras. The complainant, who was at the station to pick up a friend, testified at trial that she

was walking toward her car talking to her cousin on the telephone when she noticed Robertson

following her and signaling her to get off the telephone. Hoping Robertson would leave her

alone, the complainant responded she was on the telephone with her husband and continued
walking. As she got in her car, Robertson grabbed the door, pulled her out, and pinned her to

the side of the car. According to the complainant, Robertson had partially exposed himself.

The complainant tried to push Robertson off her, but he put his hands down her pants and

penetrated her with his fingers.   The complainant punched Robertson and struggled with him

for a few minutes before Robertson let her go. Once she was free, she ran to the on-duty DART

officer and reported what happened.

      The complainant testified she gave a written statement to the officer that night, relating

generally where Robertson had touched her, but not how he had touched her. Two days later, at

the request of another officer, she gave a second, more detailed statement. In this statement, she

related specifically where and how Robertson had touched her.            Testifying further, the

complainant said she felt nervous and violated when she saw Robertson exposing himself and

was “shaking” after the assault. Asked over Robertson’s objection if she had sought any

counseling following the assault, she denied she had.

      The complainant’s friend testified she found the complainant talking to a DART officer

when she got off the train. According to the friend, the complainant was crying and “real

shaky.”

      The friend’s description of the complainant’s demeanor was corroborated by DART

police corporal John Quinn. Quinn testified the complainant ran to him frantic and screaming

that “someone had tried to rape her.” As Quinn tried to calm the complainant so she could

explain in detail what had happened, the complainant noticed Robertson was still at the station.

Quinn approached Robertson and, after speaking with him and getting the complainant’s

statement, arrested him for public lewdness.

      DART detective Jamie Duncan testified she obtained the second statement from the

complainant two days after the assault. She explained she followed up with the complainant

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because she believed, from reading Quinn’s report, that Robertson did more than engage in an

act of sexual contact and should have been charged with sexual assault for penetrating the

complainant. Duncan testified that after the complainant provided the additional statement, the

charge against Robertson was upgraded.

       Robertson did not testify or call any witnesses, but through his cross-examination of the

complainant and officers, as well as his closing, he presented a theory that he had engaged only

in sexual contact and not penetration. The jury was instructed on both sexual assault and

attempted sexual assault, and, as stated, found him guilty of sexual assault. Following evidence

on punishment, the trial court assessed a fifteen year sentence.

                            II.      ADMISSIBILITY OF EVIDENCE

       Robertson’s sole complaint is that the trial court erred in allowing the complainant to

testify as to whether she had sought counseling after the assault. Robertson asserts this evidence

did not establish any of the elements of the offense or rebut the defense and was, therefore,

irrelevant victim-impact evidence.

                                       A. Standard of Review

       A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion.

Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). No abuse will be found if the

ruling falls within the zone of reasonable disagreement. Id. If the ruling falls outside the zone of

reasonable disagreement, the error will be disregarded unless it had a substantial and detrimental

effect or influence on the jury’s verdict. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App.

2004); see also TEX. R. APP. P. 44.2(b).    In determining the likelihood that the jury’s decision

was influenced by the error, the reviewing court considers the record as a whole including other

evidence admitted in the case, the nature of the evidence supporting the verdict, the character of




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the alleged error, how the error might be considered in connection with other evidence in the

case, and any defensive theories. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

                                 B. Application of Law to Facts

   The issue at trial was whether penetration occurred. Robertson’s theory was that he engaged

in contact, but did not penetrate. The jury heard the complainant’s testimony to the contrary and

also heard detective Duncan’s testimony that she believed, from reading Quinn’s report, that

Robertson did more than engage in sexual contact and should have been charged with sexual

assault. This is strong evidence in support of the verdict. By contrast, the complainant’s

testimony that she did not seek counseling was not particularly strong for the State, did nothing

to undermine Robertson’s trial strategy, and actually potentially aided Robertson. Assuming

without deciding the admission of complainant’s testimony that she did not seek counseling after

the incident was error, we cannot conclude this testimony was harmful to Robertson. On this

record, we fail to see how the complainant’s testimony adversely influenced the jury. See, e.g.,

Martin, 176 S.W.3d at 903 (error in admission of victim-impact testimony during guilt-

innocence phase harmless given strength of evidence of guilt); McClenton v. State, 167 S.W.3d

86, 91-92 (Tex. App.—Waco 2005, no pet.) (same); Garrett v. State, 815 S.W.2d 333, 338 (Tex.

App–-Houston [1st Dist.] 1991, pet. ref’d) (same – testimony did not undermine appellant’s trial

strategy that complainant misidentified him, not that no crime occurred).           We resolve

Robertson’s sole issue against him.




                                              –4–
                                       III. CONCLUSION

   Having resolved Robertson’s sole issue against him, we affirm the trial court’s judgment.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE
Do Not Publish
TEX. R. APP. P. 47
111594F.U05




                                              –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DAMON ROBERTSON, Appellant                            On Appeal from the Criminal District Court
                                                      No. 4, Dallas County, Texas
No. 05-11-01594-CR         V.                         Trial Court Cause No. F-11-17405-K.
                                                      Opinion delivered by Justice Lang. Justices
THE STATE OF TEXAS, Appellee                          Francis and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 11th day of July, 2013.




                                                      /Douglas S. Lang/
                                                      DOUGLAS S. LANG
                                                      JUSTICE




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