









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-08-00213-CR

______________________________



JEFFERY STEVEN HARDY, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 188th Judicial District Court

Gregg County, Texas

Trial Court No. 32,426-A







Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Moseley


O P I N I O N


	Jeffery Steven Hardy appeals an order which purported to rescind a previous order
terminating certain obligations placed on Hardy after his having been placed on community service
for a sexual offense.
	After having been indicted on a charge of aggravated sexual assault of a child, in April 2005,
Hardy entered into a plea agreement whereby he entered a plea of guilty to a charge of indecency
with a child; as part of that plea agreement, he was placed on deferred adjudication community
supervision for seven years. (1)  Hardy was required to register as a sex offender.  See Tex. Code Crim.
Proc. Ann. art. 62.001-.408 (Vernon 2006 & Supp. 2008).
	About a year after having been placed on community supervision, Hardy was subjected to
carbon monoxide poisoning, and, as a result, suffered at least some degree of brain damage.
	Eventually, in April 2008, Hardy filed a motion asking that he be discharged from both his
community supervision and his obligation to maintain registration as a sex offender.  At the hearing
on that motion, Rex Fennell (the community supervision officer charged with Hardy's supervision),
said he did not oppose the early release.  Fennell said he was under the impression that Hardy was
so debilitated by his brain damage that he was unable to sign his own name and that he even required
assistance in walking.  Fennell further related that Mrs. Hardy had represented to him that she was
contemplating divorcing Hardy and placing him in a nursing home, but Hardy's sex-offender
registration requirement prohibited her from making such a placement.  Fennell went on to say that
he reviewed and considered a psychologist's evaluation of Hardy, which had been performed at
Mrs. Hardy's instance (an evaluation which incorporated an evaluation done by a neuropsychologist
two years earlier); both of these evaluations were entered into evidence.  The State did not seem to
vigorously oppose Hardy's motion at the hearing.  However, when the trial court inquired of the
State's position regarding Hardy's request, one prosecutor responded that he believed that there was
no provision in the Texas Code of Criminal Procedure for the requested relief and that it may, in fact,
be specifically barred.  The State then said that at least one of the prosecutors present in the
courtroom read the statutes as indicating Hardy was "not only not entitled on the set-aside for the
probation itself, which is contained within the Code, but he would not be entitled to a set-aside on
the registration requirement."  After Hardy's attorney voiced his disagreement with that viewpoint,
the trial court called the parties to the bench and an off-the-record discussion among the trial court
and the attorneys took place.  Once again on the record, the trial court then announced he was
granting Hardy's motions for early termination of "probation" and sex-offender registration.  
	The trial court then entered two separate orders.  In the first order, the trial court granted
Hardy's motion and "terminated" Hardy's "probationary period" and "discharged [him] from
probation."  The other order entered that day read in part:  "Defendant's requirement to Register as
a Sex Offender under Chapter 62 of the Code of Criminal Procedure [is] declared to have terminated
and the Defendant discharged from that Obligation pursuant to the Court's authority under Articles
62.404 and 62.407 of the Texas Code of Criminal Procedure."
	In August 2008, the State filed a motion to reconsider, asking the trial court to rescind or set
aside both of the orders which had been entered as a result of the April hearing.  At a hearing on this
motion, the State presented two faculty members from the school attended by Hardy's son.  These
witnesses testified that although they had encountered Hardy several times during a period of time
of about a year before the hearing and had several interactions with him, neither had detected any
indication that he suffered any degree of brain damage.  The State also presented testimony from
Fennell (who had testified at that April hearing that he did not oppose the early discharge), who gave
testimony which would tend to leave the impression that Hardy had been attempting to avoid service
of the notice of the hearing to reconsider his release from the supervisory and registration obligations
and at the very least that he had been able to be alone outdoors without supervision.  After hearing
this evidence, the trial court stated it felt "taken advantage of . . . duped . . . [and] defrauded."  The
trial court then announced that it "set aside" its ruling from April and "reinstate[d] the probation, and
require[d] [Hardy] to register as a sex offender."  The trial court later entered an order dated
October 1, 2008, in conformity with the oral pronouncement.
Appellate Point of Error
	Hardy raises one point of error, alleging error in the trial court having granted the State's
motion to reconsider its previous action of removing Hardy from community supervision and
releasing him from the obligation to register as a sex offender.  His brief generally asserts that the
trial court lacked jurisdiction and authority to issue the order reinstating Hardy on community
supervision.  Hardy refers to Article 44.01 (2) of the Texas Code of Criminal Procedure and claims that
timely appeal of the original (April 2008) orders was the State's sole remedy and that it could not,
after the expiration of some five months, move for reconsideration of the orders in question.  Hardy
does not expand on these assertions and cites only two cases in his brief (one of which generally
pertains to the distinction between Article 42.12, Sections 5 and 20 (3) of the Texas Code of Criminal
Procedure and the other relates to the finality of a trial court's order dismissing an indictment incident
to the termination of a deferred adjudication (4)). 
	In order to examine the status of the trial court's October order reinstating Hardy on
community supervision, we must examine the effect of the April orders.  Although there is a paucity
of substantive or persuasive analysis in the brief provided by the State, (5) its brief does somewhat
tangentially mention what we find to be the critical issue in this case:  whether the trial court was
authorized to issue the April order discharging him from community supervision, (6) and it does say
that the April orders were "prohibited by statute" and "contrary to statute."  Upon conducting our
own research and review of the record, we have concluded that resolution of the issues relates to this
position.    
Early Discharge from Deferred Adjudication Not Permitted
	The trial court was specifically precluded from granting Hardy early discharge from
community supervision.   
	Deferred adjudication is a specific form of community supervision and contains the following
procedure:  
	The judge may dismiss the proceedings and discharge a defendant, other than a defendant
charged with an offense requiring the defendant to register as a sex offender under Chapter
62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997, prior to
the expiration of the term of community supervision if in the judge's opinion the best interest
of society and the defendant will be served.  The judge may not dismiss the proceedings and
discharge a defendant charged with an offense requiring the defendant to register under
Chapter 62, as added by Chapter 668, Acts of the 75th Legislature, Regular Session, 1997.

Tex. Code Crim. Proc. Ann. art. 42.12, § 5(c) (Vernon Supp. 2008) (emphasis added); Arreola v.
State, 207 S.W.3d 387, 392 (Tex. App.--Houston [1st Dist.] 2006, no pet.). (7)  The cogent question
to be answered deals with whether the trial court was either without the jurisdiction or was without
authority to discharge Hardy from deferred adjudication before his seven-year term had been
satisfied.  The importance of this question is this:  it determines whether the State was in a position
to request that the trial court reconsider and effectively set aside its April order. (8)
	In regard to attacks on orders which have been entered, there is a vast difference between
orders which are void and those which are simply voidable.  Although void orders or judgments may
be collaterally attacked at any time, (9) an order or judgment which is voidable may only be attacked
in a direct appeal. (10) 
The Texas Court of Criminal Appeals in Seidel
	We have determined that a statute makes specific prohibition of the kind of order terminating
Hardy's community supervision.  Considering this statutory constraint, it must be determined
whether a violation of that statute would be an order which was outside the jurisdiction of the court
or whether such a violation would have been made without authority.  "A trial court may have
jurisdiction to act over a case, yet lack authority to act in a particular manner over that case.  Lack
of jurisdiction over a case renders the judgment void, and it may always be collaterally attacked." 
Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001) (citations omitted).  By way of
explanation of this underlying case, Seidel had been arrested for felony driving while intoxicated,
but the State never indicted him or filed an information.  Four months after his arrest, Seidel filed
an application for habeas corpus relief; citing Article 32.01 of the Texas Code of Criminal
Procedure, (11) he asked that the prosecution and bail be discharged.  The trial court granted Seidel's
motion "with prejudice."  Id. at 222.  The Texas Court of Criminal Appeals held that where no
statutory or constitutional provision existed vesting the trial court with authority to dismiss a case
with prejudice when the State did not consent to a dismissal with prejudice, the trial court possessed
no inherent power to dismiss the prosecution with prejudice; therefore, the portion of the judgment
dismissing the case with prejudice was "void" and subject to direct or collateral attack by the State
at any time.  Id. at 225.  Seidel discusses the difference between void and voidable judgments using
the characteristics of "illegal" or "irregular" acts. (12)  Specifically, the Texas Court of Criminal
Appeals held that the district court's dismissal of the prosecution "with prejudice" was "beyond the
scope of its proper authority," hence "that part of the judgment was void."  Id. (emphasis added). (13)

	Hardy's case bears similarity to the circumstances in Seidel.  Here, the applicable statute
clearly forbade the trial court from granting Hardy an early discharge from deferred adjudication. 
In Seidel, the Texas Court of Criminal Appeals pointed out that despite his granted relief pursuant
to Article 32.01 of the Texas Code of Criminal Procedure, under Article 28.061, he could still
subject Seidel to subsequent prosecution.  Id.; see Tex. Code Crim. Proc. Ann. art 28.061 (Vernon
2006).  The court reflected on its analysis in Davis v. State, (14) wherein it had concluded that, "This
is not to say that judicial functions performed by one without any authority to act may not be void." 
Davis, 956 S.W.2d at 559.  Therefore, the trial court (which had jurisdiction over Seidel and over
the offense) nonetheless was outside its authority in attempting to attach prejudice to the charged
offense.  "In this case, the trial judge's dismissal 'with prejudice' was more than a variance from the
normal conduct; that action was outside the parameters of any rule or procedure in place at that time. 
We conclude that the trial judge's action was more than a mere violation of statutory procedure.  The
trial judge's action was not authorized by law and was, therefore, void."  Seidel, 39 S.W.3d at 225. (15)
	We recognize, as did one of our sister courts, some apparent inconsistencies in this area in
the holdings of the Texas Court of Criminal Appeals. (16)
	We find the situation before us analogous to that in Seidel.  The trial court's action here,
granting early discharge to Hardy, was "more than a variance from the normal conduct" of
administering a defendant on deferred adjudication:  the act was specifically precluded by the same
statute which authorized the grant of deferred adjudication.  Seidel, 39 S.W.3d at 225.  The order of
April 2008 discharging Hardy from deferred adjudication "was outside the parameters of any rule
or procedure in place" and was, therefore, void. (17) Id.
	Because the trial court's order of April was void, it was null and had no effect.  Due to the
void nature of the order by which an attempt was made to release Hardy from deferred adjudication,
it was never a valid order.  Therefore, it cannot be said the trial court erred in "reinstating" Hardy on
"probation."   
	Therefore, the April orders' effort to relieve Hardy from the obligations of community
supervision and from reporting as a sex offender failed entirely, and those obligations remain in full
force and effect.  Further, because the April orders are void, the later order rescinding the April order
is--as it was drafted--of no consequence.  Hardy's appeal of the later order of rescission must fail.
	We overrule Hardy's point of error and hold that the original order placing Hardy on
community supervision is in full force and effect, unaffected by neither of the April orders nor by
the later order of rescission.
	Accordingly, we modify the trial court's order of October 1,  2008, to conform to the holdings
of this opinion.




						Bailey C. Moseley
						Justice

Date Submitted:	August 5, 2009
Date Decided:		September 23, 2009

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1. Although the parties and the trial court consistently use the term "probation," in the interest
of precision and clarity, we will discuss this case in the terms used by the Texas Code of Criminal
Procedure.
2. Tex. Code Crim. Proc. Ann. art. 44.01 (Vernon Supp. 2008).
3. State v. Juvrud, 96 S.W.3d 550 (Tex. App.--El Paso 2002), aff'd, 187 S.W.3d 492 (Tex.
Crim. App. 2006); see Tex. Code Crim. Proc. Ann. art. 42.12, §§ 5, 20 (Vernon Supp. 2008).
4. Irving v. State, 879 S.W.2d 220 (Tex. App.--Houston [14th Dist.] 1994), aff'd, 922 S.W.2d
959 (Tex. Crim. App. 1996).
5. The State offers several arguments on appeal. It alleges, for example, that the trial court's
order terminating supervision was merely a modification of the terms of supervision and that the
fraud perpetrated upon the State and the trial court was so great that it precluded timely appeal by
the State.  We do not find much merit to these arguments, which are truly not relevant to the issue
at hand.   
6. The trial court issued two orders in April, one addressing community supervision and one
addressing the sex-offender registration.  The written October order, though, only speaks to
community supervision (however, the spoken order said both).  We limit our discussion to the
community supervision order.  As will be seen, the validity of that order will be dispositive.  If the
trial court could properly "reinstate" Hardy's community supervision, it could certainly issue terms
and conditions that Hardy register as a sex offender.   
7. "[D]eferred adjudication community supervision for a sex-offender-registration offense
[such as indecency with a child] cannot be terminated early."  Citing Tex. Code Crim. Proc. Ann.
art. 62.101(a)(1) (Vernon Supp. 2005), art. 42.12, § 5(c) (Vernon Supp. 2005) (no change has been
made to the two cited articles since Arreola).
8. The State filed no appeal from the trial court's April orders releasing Hardy from his deferred
adjudication and sex-offender registration obligations.   If both of those orders were valid, the trial
court lost jurisdiction over Hardy well before the State's motion for reconsideration, filed about four
months after the April orders.  
9. Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App. [Panel Op.] 1979) (op. on reh'g).
10. Ex parte Shields, 550 S.W.2d 670, 675-76 (Tex. Crim. App. 1976) (op. on reh'g).
11. "When a defendant has been detained in custody or held to bail for his appearance to answer
any criminal accusation, the prosecution, unless otherwise ordered by the court, for good cause
shown, supported by affidavit, shall be dismissed and the bail discharged, if indictment or
information be not presented against such defendant on or before the last day of the next term of the
court which is held after his commitment or admission to bail or on or before the 180th day after the
date of commitment or admission to bail, whichever date is later."  Tex. Code Crim. Proc. Ann.
art. 32.01 (Vernon 2006).  The 2000 statute had no substantive differences.   
12. "Unauthorized acts (or errors) can be characterized as either 'illegal' or 'irregular.' . . . 
'Illegal acts' are defined as 'acts that are not authorized by law.'  . . .  On the other hand, 'irregular acts'
are defined as 'acts or practices that vary from the normal conduct of an action.' . . . While a
judgment is merely 'voidable for irregularity,' it is 'void for illegality.'"  Seidel, 39 S.W.3d at 224
(citations omitted).
13. Curiously, on one occasion not quite a year after Seidel's release, the Texas Court of
Criminal Appeals cited that case as follows:   

	In recent years, this Court has attempted to refine the definition of a "void" vs.
"voidable" conviction because those terms have caused so much confusion in Texas
criminal law. "Void" convictions should be defined as those in which the trial court
lacked jurisdiction over the person or subject matter or in which the trial judge lacked
qualification to act in any manner.  See, e.g., Ex parte Seidel, 39 S.W.3d 221, 226-27
(Tex. Crim. App. 2001) (Womack, J., dissenting, joined by Keller, P.J. & Meyers, J.).

Ex parte McCain, 67 S.W.3d 204, 209 (Tex. Crim. App. 2002).  No explanation is given for why
the court cited to Seidel's dissent.  That section of Judge Womack's dissent, and all of McCain, center
on what erroneous orders of trial courts are cognizable on habeas review.  Although the cited portion
of Judge Womack's dissent could be characterized as mocking the Seidel majority's distinctions
between illegal and irregular judgments, nothing in McCain or any subsequent Texas Court of
Criminal Appeals case we have found calls into question the Seidel reasoning and analysis on an
order that amounts to an unauthorized, illegal (as opposed to unauthorized, irregular) act of a trial
court.  See Seidel, 39 S.W.3d at 224.
14. 956 S.W.2d 555 (Tex. Crim. App. 1997).  Pursuant to plea bargain, Davis was placed on
probation; the plea was to a magistrate, to whom Davis's case had been referred by the trial court. 
After revocation and sentencing, Davis claimed the order placing him on probation was void because
the trial court order referring the matter to the magistrate was signed two days after the plea was
actually taken; Davis thus reasoned the magistrate was without jurisdiction to accept the plea.  The
Texas Court of Criminal Appeals pointed out that the magistrate was merely a surrogate for the trial
court, which was never divested of jurisdiction.  The court highlighted situations in which the trial
court lacked constitutional or statutory qualifications, and actions taken without such qualifications
rendered those acts void.  The court contrasted those situations with ones where the trial court had
acted in violation of a statutory procedure, such as noticing the defendant of a hearing to appoint a
special judge; such a situation presented a voidable, not void conviction.  Id. at 559.  Hence, the only
error in Davis's case involved the "process by which the district judge referred this case to its
surrogate [the magistrate]," which had no effect on the trial court's jurisdiction.  Id. at 560.  The
"error was not jurisdictional and the conviction [was] not void."  Id.  
15. See also Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (finding Mizell's
sentence illegal because it fell outside statutory permissible range of punishment); Green v. State,
906 S.W.2d 937, 939-40 (Tex. Crim. App. 1995) (trial court entered findings of fact and conclusions
of law 11½ months after the record had been filed with the appellate court; such findings and
conclusions were "null and void").  We also find instructive some intermediate appellate court
decisions, where trial court acts outside statutory time restrictions were held to be void:  Moore v.
State, No. 09-06-532-CR, 2008 Tex. App. LEXIS 3174, at **2-3 (Tex. App.--Beaumont Apr. 30,
2008, no pet.) (mem. op., not designated for publication) (trial court sua sponte order, entered two
years after discharging Moore from deferred adjudication, returning Moore to deferred adjudication,
held void where applicable statute did not preclude discharge);  Neugebauer v. State, 266 S.W.3d
137, 139 (Tex. App.--Amarillo 2008, no pet.); Hopkins v. State, No. 05-03-01683-CR, 2004 Tex.
App. LEXIS 8794 (Tex. App.--Dallas Sept. 30, 2004, no pet.) (not designated for publication) (trial
court's issuance of a judgment nunc pro tunc, about a month before appellate court's mandate issued,
held void:  trial court had no jurisdiction); Deifik v. State, 58 S.W.3d 794, 795-96 (Tex. App.--Fort
Worth 2001, pet. ref'd) (trial court cannot put defendant on shock probation outside the 180 days
after defendant begins serving sentence). 
16. In Wiley v. State, it was pointed out that:     

	In Williams, the trial court placed the defendant on community supervision even
though he was statutorily ineligible for it due to a deadly weapon finding in the
judgment.  Ex parte Williams, 65 S.W.3d 656, 656-58 (Tex. Crim. App. 2001).  The
court of criminal appeals, in deciding Williams approximately seven months after
Seidel, held that although no statutory or constitutional provision exists vesting the
trial court with authority to place Williams on probation, the prosecutor did not
consent to probation, and the trial court possesses no inherent power to place
Williams on probation, nonetheless, the order or portion of the judgment placing
Williams on probation was not "void" because "illegal sentences and unauthorized
probation orders are two different things."  Williams, 65 S.W.3d at 657-58; see also
Williams, 65 S.W.3d at 661-64 (Womack, J., concurring) (questioning why
Williams's probation order was not void under Seidel).  The court explained that
"community supervision is not a sentence or even a part of a sentence" and concluded
that the illegal granting of community supervision should not be governed by a rule
which applies to illegal sentences.  Williams, 65 S.W.3d at 657 (citing Speth v. State,
6 S.W.3d 530, 532 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088, 120 S. Ct.
1720, 146 L. Ed. 2d 642 (2000)).  

		While we agree with Wiley that the distinction between the void portion of
the judgment in Seidel and the not void order in Williams seems incongruent, we also
agree with the State that as an intermediate appellate court we are bound to follow
the pronouncements of the court of criminal appeals.  See Taulung v. State, 979
S.W.2d 854, 857 (Tex. App.--Waco 1998, no pet.).  The court of criminal appeals
has unequivocally held that a trial court's order granting probation, even to a
statutorily ineligible defendant, is not a "sentence" and therefore cannot be an illegal
or void sentence.  Williams, 65 S.W.3d at 657-58; see also State v. Enriquez, 47
S.W.3d 177, 179 (Tex. App.--El Paso 2001, no pet.) (following Williams to hold
that, because probation is not illegal or void sentence, State cannot complain for first
time on appeal that probation was unauthorized); State v. Ramirez, 62 S.W.3d 356,
358 (Tex. App.--Corpus Christi 2001, no pet.) (following Williams to hold that,
because probation is not illegal or void sentence, appellate court lacked jurisdiction
to hear State's appeal of shock probation order).  Applying Williams, as we must, it
is clear that the probation order entered in Wiley's prior felony case for sexual assault
of a child did not constitute a void or illegal sentence.  See Williams, 65 S.W.3d at
657-58. Accordingly, Wiley's conviction in that case is not void.  We hold that the
court did not err by permitting the State to use Wiley's prior conviction for sexual
assault of a child to upgrade the instant offense to a felony. We overrule Wiley's
point. 

112 S.W.3d 173, 175-76 (Tex. App.--Fort Worth 2003, pet. ref'd).
17. "[A void judgment] is a nullity from the beginning, and is attended by none of the
consequences of a valid judgment.  It is entitled to no respect whatsoever because it does not affect,
impair, or create legal rights."  Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex. Crim. App. 1985)
(Teague, J., dissenting).  Because the orders of rescission are void, Hardy remains under the
constraints of community supervision.


ituation, and is equally applicable in every case where evidence is offered by a defendant
to assist the jury or judge in determining the fair and proper sentence for the particular
defendant for the crime committed, considering his or her level of culpability and all other
matters.  That is the reason there is a range of punishment rather than a set punishment
for each conviction.  The court has recognized that this principle is "one of the fundamental
traditions of our system of criminal jurisprudence," Jurek v. State, 522 S.W.2d 934, 940
(Tex. Crim. App. 1975), and it is imbedded in both rule and statute.
Evidence of the Victim's Sexual Conduct with Persons Other than Eaves
          The Legislature has determined that, in cases where the defendant is charged with
offenses such as the one at issue here, evidence of specific instances of an alleged
victim's past sexual behavior is not admissible except in limited circumstances, and then,
only by a definite prescribed procedure.  Tex. R. Evid. 412.  This "rape shield" rule is not
limited in its applicability to only the guilt/innocence phase of trial.  Although Eaves claims
on appeal that his proffered testimony was admissible pursuant to one of the exceptions
provided for in this rule (Rule 412(b)(2)(E)), as noted above, he never raised that argument
before the trial court and therefore failed to preserve it for our review.  Further, Eaves (and
the trial court) only considered whether the evidence was admissible under Tex. Code
Crim. Proc. Ann. art. 37.07, and Eaves never sought its admission under any of the
exceptions provided by Rule 412.  We conclude, therefore, the trial court did not err in
excluding that portion of the proffered testimony dealing with the victim's alleged sexual
conduct with persons other than Eaves.  This would specifically apply to the proffered
testimony by Jefferson that the victim started having sex at age nine or ten, of specific
incidents of other sexual conduct by the victim, and that the victim has consented to sexual
conduct both before and after the incident in question with parties other than Eaves.

The Other Excluded Evidence
          We conclude, on the other hand, the trial court did abuse its discretion in excluding
the other evidence proffered by Eaves.  The facts and circumstances surrounding the
offense and evidence relevant to mitigation of punishment are all admissible at the
punishment hearing.  Williams v. State, 535 S.W.2d 637, 639 (Tex. Crim. App. 1976); 
Longoria v. State, 700 S.W.2d 274, 276 (Tex. App.—Corpus Christi 1985, no pet.). 
Indeed, this Court has recently recognized in a prosecution for aggravated sexual assault
involving a victim under the age of fourteen, in the context of a review of an ineffective
assistance of counsel claim, that, while "consent could not be a legal defense, it
conceivably could have been relevant and persuasive for mitigation of the punishment." 
Rogers v. State, 85 S.W.3d 359, 361 (Tex. App.—Texarkana 2002, no pet.).  That is
especially the case when the State's theory and proof offered was of a forcible violent rape. 
          It is apparent the trial court's rejection of Eaves' evidence was based in part on its
disbelief that the appearance, conduct, actions, or verbal claims by an eleven-year-old girl
could be admissible to show mitigation for the defendant's conduct.  To this extent, the court
applied the wrong analysis.  The court's reasoning does not go to the admissibility of the
evidence, but to its believability, or the weight that jurors might place on such testimony. 
That is a call to be made not by the trial court, but by the fact-finder.  Under these facts, we
conclude the excluded evidence, other than that pertaining to the victim's sexual conduct
with persons other than Eaves, was clearly admissible to show the circumstances of the
offense and for purposes of mitigation.    
Harm Analysis
          In our review of nonconstitutional error, we are to disregard errors, defects,
irregularities, or variances that do not affect substantial rights of the accused.  Tex. R. App.
P. 44.2(b).  A "substantial right" is affected when the error had a substantial and injurious
effect or influence in determining the jury's verdict.  Tex. R. App. P. 44.2(b); King v. State,
953 S.W.2d 266, 271 (Tex. Crim. App. 1997).  If, on the record as a whole, it appears the
error "did not influence the jury, or had but a slight effect," we must conclude that the error
was not harmful and allow the conviction (or punishment) to stand.  Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998).
          In this case, the erroneously excluded evidence showed a lack of culpability on the
part of Eaves.  This is not a defense to the act, but in determining punishment, the
culpability of the actor is a critical matter.  The evidence did not come before the jury from
other sources, and the erroneously excluded evidence was all Eaves had available to raise
this before the jury.  
          Although not decisive, it is also worth noting again that the plea agreement reached
between the parties—and refused by the trial court—was for three years' imprisonment,
rather than the thirty assessed by the jury plus the maximum fine of $10,000.00.  The
prosecutor had access to all the information, including that which was not presented to the
jury, and had recommended a much lesser penalty for the offense.  
          Tending to make the error harmless was the State's evidence of Eaves' extensive
juvenile record for criminal conduct.  Eaves also admitted he has an alcohol problem and
volunteered that he smokes "weed."  Also, much of the excluded testimony concerning the
victim and her conduct came from Eaves' live-in girlfriend with whom he has a child, and
there was evidence that he has another child by a different woman to whom he is not
married, and that he was behind in his child support for that child.
          Even taking these matters into consideration, however, we are not convinced the
punishment assessed by the jury would be the same if it had heard the erroneously
excluded testimony.  We cannot say, therefore, the error "did not influence the jury, or had
but a slight effect."  Based on all of these matters and our review of the record, we conclude
the error affected a substantial right of the accused and requires reversal for a new
punishment hearing.
Conclusion
          We reverse that part of the judgment assessing punishment and remand the case
for a new punishment hearing.
 
 
 
                                                                           Donald R. Ross
                                                                           Justice
 
Date Submitted:      April 22, 2004
Date Decided:         May 27, 2004
 
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