                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                     No. 07-14-00212-CR


                              DAVID WATSON, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 364th District Court
                                     Lubbock County, Texas
            Trial Court No. 2012-435,164, Honorable Bradley S. Underwood, Presiding

                                       June 14, 2016

                              MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant David Watson appeals from his conviction by jury of the offense of

sexual assault1 and the resulting sentence of ten years of imprisonment. His two issues

contend the trial court erred by denying his challenge for cause to a venire member and

by admitting testimony over his objection. Finding no reversible error, we will affirm.




       1
           TEX. PENAL CODE ANN. § 22.011(a)(1) (West 2016).
                                      Background


      Because appellant does not challenge the sufficiency of the evidence to support

his conviction, we will relate only those facts necessary to an understanding of his

appellate issues.


      Appellant was indicted for aggravated sexual assault of Raven Winters.2 The

indictment alleged appellant intentionally or knowingly caused Winters’ sexual organ to

contact his sexual organ without Winters’ consent. In so doing, the indictment alleged,

appellant did “by acts or words threaten to cause, or place, [Winters] in fear that death,

serious bodily injury, or kidnapping would be imminently inflicted on [her].”      It also

contained a deadly weapon allegation, asserting appellant used or exhibited a knife the

manner of use or intended use of which was capable of causing death or serious bodily

injury. The jury charge instructed the jury on the lesser-included offenses of sexual

assault and assault.


      Winters testified she met appellant in a class the two shared at Texas Tech

University. They struck up a friendship that eventually included some sexual acts. The

two also engaged in sexual conversations via social media and texts. When Winters

later told appellant she was dating someone else, appellant became angry and “shoved”



      2
          The indictment used the pseudonym Raven Winters to protect the victim’s
identity. We will refer to the victim with the same pseudonym. Before the jury, the
victim was identified with her actual name. In addition to the offense for which appellant
was tried, the indictment contained three other counts, all arising from the same
occasion. They alleged penetration of Winters’ sexual organ by appellant’s sexual
organ, penetration of Winters’ mouth by appellant’s sexual organ and contact by
appellant’s mouth with Winters’ sexual organ.


                                            2
her. She testified she became afraid of appellant after that incident and told friends of

her fear. She testified she “was scared of him” and “tried to avoid him.”


       Some months later, appellant sent Winters a text stating, “It would be in your best

interest if you would come over tonight.” She went to his home.             Appellant was

intoxicated, yelled at her, and told her he had recordings of their previous sexual acts.

He threated to publish the pictures and videos on the internet. Appellant called a friend

who confirmed to Winters that appellant had the videos and was willing to put them on

the internet. Winters testified that for the next three or four hours, appellant forcibly

performed sexual acts on her and forced her to perform sexual acts on him. Appellant

also recorded these events; the video of their sexual acts was admitted and played for

the jury. Winters testified that appellant displayed a knife, but no knife was found.


       Appellant did not testify at trial but presented a defensive theory contending that

their sexual acts were consensual, or at least that Winters’ participation was not

compelled by physical force or the threat of force. The jury found appellant guilty of the

lesser-included offense of sexual assault and assessed punishment as noted.


                                          Analysis


Challenge for Cause


       In his first issue, appellant contends the trial court erred when it denied his

challenge for cause of venire member Pricer and later requests for additional

peremptory strikes. The State argues the challenged juror was “a mere vacillating juror”

and the trial court did not abuse its discretion.


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       A challenge for cause is an objection made to a particular juror, alleging a fact

that renders the juror incapable or unfit to serve on the jury. TEX. CODE CRIM. PROC.

ANN. art. 35.16(a) (West 2014).       Among the reasons for which a defendant may

challenge a prospective juror for cause is that the prospective juror “has a bias or

prejudice against any of the law applicable to the case on which the defense is entitled

to rely[.]” TEX. CODE CRIM. PROC. ANN. art. 35.16(c)(2).


       The test is “whether the bias or prejudice would substantially impair the

prospective juror's ability to carry out his oath and instructions in accordance with law.”

Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Before a prospective

juror may be excused for cause on this basis, the law must be explained to the juror and

the juror must be asked whether she can follow that law regardless of personal views.

Feldman, 71 S.W.3d at 744 (citing Jones v. State, 982 S.W.2d 386, 390 (Tex. Crim.

App. 1998)). The proponent of a challenge for cause has the burden to show that the

challenge is proper. Feldman, 71 S.W.3d at 747. To establish a proper challenge for

cause, its proponent must show that the prospective juror understood the requirements

of the law and could not overcome her prejudice well enough to follow it. Buntion v.

State, 482 S.W.3d 58, 84 (Tex. Crim. App. 2016) (citing Davis v. State, 329 S.W.3d 798,

807 (Tex. Crim. App. 2010)). When reviewing a trial court's decision to grant or deny a

challenge for cause, we look at the entire record. Feldman, 71 S.W.3d at 744.


       During defense counsel’s voir dire, he visited with the panel in some detail

regarding the proof necessary to show that sexual contact occurred without the consent

of the victim. See TEX. PENAL CODE ANN. § 22.011(a)(1)(C). He drew his explanations of

the law from the provisions of subsections (b)(1), (2) and (7) of Penal Code section

                                             4
22.011. See TEX. PENAL CODE ANN. § 22.011(b)(1), (2) and (7). Sometimes, in his

discussions of compulsion by force or threat of force, he referred to “physical force,” and

other times, simply “force.”3


       When he inquired of panel member Pricer about her attitude toward the law’s

“force or threat of force” requirement to prove lack of consent, she expressed the

opinion that “no means no, stop now.” In essence, she expressed the concept that

force is demonstrated when an actor proceeds with sexual activity after being told “no.”

Counsel explained, not for the first time, that while “no means no” is a valid concept,

“what the law says is that it’s not a sexual assault unless there’s a use of physical force

or the threat of use of physical force.” Pricer responded, “I’m having an issue with it.”

Then asked if her “problem with it be such that it might affect your ability to . . . be

neutral on this jury? Would you favor one side or the other?”, Pricer said, “Well, again,

that’s hard to, you know - - I - - no. I can look at the evidence as is presented and make

a decision based on that.” When the next panel member in line, Sauceda, also said she

had “an issue,” and Pricer indicated her agreement with Sauceda’s explanation of her

opinion, counsel asked the two whether their conviction was “strong enough that it might

influence how you vote on the jury[.]” Sauceda said it would; Pricer responded, “No.”




       3
         In one instance, a member of the venire (not the challenged member), pointed
out to counsel that the term force had not been defined for them. Counsel agreed with
her, and said the term “doesn’t have a definition.” Later, in an exchange with another
panel member, counsel limited the requirement to a showing of physical force. He then
said, “I may have spoken too soon about there not being a definition. It talks about
physical force.”



                                             5
       Pricer later was summoned to the bench for another extended discussion.

There, in response to defense counsel’s questions, she reiterated that, “The fact that it’s

happening after you say no is use of force. He doesn’t need a weapon. His hands are

a weapon. His body is a weapon. The fact that you’ve said no and it continues in my

mind     is   force.”    The     State    then    elicited    Pricer’s   agreement       that

“force has to be proven,” and that she would require the State to prove it. In response

to the court’s question asking if she would “hold the State to [its] burden of proof,” Pricer

responded, “Yes.” And when the court further asked, “And will you acquit if they don’t

prove it? Could you find him not guilty?”, she responded, “I see no choice.” When

defense counsel took up the questioning again, in response Pricer again indicated that

in her mind, force is shown when sexual activity continues after a party says, “no.”


       In support of the challenge for cause, the defense argued “the scenario she is

describing legally does not constitute force, and so it’s tantamount to her saying that

she won’t require the State to prove that element of the offense.” The court disagreed.


       We see no abuse of discretion in the trial court’s denial of the challenge for

cause. Pricer never said she could not, or would not, follow the law as it was explained

to her. She consistently indicated she would require the State to show force or a threat

of force to prove lack of consent. Appellant asserts that, to prove compulsion by force

or a threat of force, the law requires more than continued sexual activity after a party

says “no.” We need not address that question because, assuming appellant is correct,

that view of the law was never explained to Pricer. She was never told that the law

requires more than continued sexual activity after a party objects, and asked if she

could follow that requirement. As the Court of Criminal Appeals reiterated only recently,

                                             6
the proponent of a challenge for cause “must show that the prospective juror

understood the requirements of the law and could not overcome her prejudice well

enough to follow it.” Buntion, 482 S.W.3d at 84. While the defense clearly disagreed

with Pricer’s personal view of facts that would meet the statutory requirement, the trial

court was not required to equate that disagreement with an unwillingness on Pricer’s

part to follow the law.


       Moreover, when the record demonstrates a vacillating or equivocal prospective

juror, we accord great deference to the trial judge who had the better opportunity to see

and hear the person. Swearingen v. State, 101 S.W.3d 89, 99 (Tex. Crim. App. 2003).

The trial court is able to consider important factors such as demeanor and tone of voice

not apparent from review of a cold record. Banda v. State, 890 S.W.2d 42, 54 (Tex.

Crim. App. 1994); Bell v. State, 233 S.W.3d 583, 591 (Tex. App.—Waco 2007, pet.

dism'd).


       For both reasons, we overrule appellant's first issue.


Admission of Evidence


       In his second issue, appellant argues the trial court erred by allowing Winters to

testify of appellant, “He said, ‘I’ve done this three times before, and do you think I can't

get away with it now?’ It was something -- I can't remember exact lines, but he said ‘I’ve

done this three times before.’” Appellant objected under Rules of Evidence 404(b) and

403.    The State argued, “[w]e're offering a statement on his behalf as a means of

intimidation or coercion against [Winters].” The court overruled appellant’s objections.



                                             7
       We review a trial court's admission of extraneous offense evidence under an

abuse of discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App.

2001). A trial court abuses its discretion if its ruling is outside the zone of reasonable

disagreement. Id.; see Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).

“An appellate court would misapply the appellate abuse of discretion standard of review

by reversing a trial court's admissibility decision solely because the appellate court

disagreed with it.” Powell, 63 S.W.3d at 438.


       Error in admitting evidence concerning extraneous offenses is reviewed under

Rule 44.2(b) of the Texas Rules of Appellate Procedure. Casey, 215 S.W.3d at 885.

Under that standard, an appellate court must disregard a nonconstitutional error that

does not affect a criminal defendant's “substantial rights.” TEX. R. APP. P. 44.2(b). An

error affects a substantial right of the defendant when the error has a substantial and

injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d

266, 271 (Tex. Crim. App. 1997). A criminal conviction will not be reversed for

nonconstitutional error if the appellate court, after examining the record as a whole, has

fair assurance that the error did not influence the jury, or had but a slight effect. TEX. R.

APP. P. 44.2(b); Johnson v. State, 967 S.W.2d 410, 417 (Tex. 1998).


       In making this determination, the appellate court should consider the entirety of

the record, including any testimony or physical evidence admitted for the jury's

consideration, the nature of the evidence supporting the verdict, and the character of

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

the case. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). The reviewing

court can also consider the jury instruction given by the trial judge, the State's theory

                                             8
and any defensive theories, closing arguments and voir dire, if material to appellant's

claim. Id.


       Assuming, without consideration, the trial court erred by admitting the evidence

of appellant’s statement over his objections, we find the error harmless with regard to

the jury’s verdict in the guilt-innocence phase.


       The court’s charge at the conclusion of the guilt-innocence phase instructed the

jurors not to consider evidence tending to show appellant committed extraneous

offenses or bad acts other than the charged offense unless jurors believed beyond a

reasonable doubt that appellant committed the acts, if any, and instructed jurors to

consider the evidence, if at all, only for the purpose of determining appellant’s intent,

preparation or plan, if any, in connection with the charged offense. Our rules of

evidence recognize that an accused person is entitled to be tried on the offense

currently charged “and not on some collateral crime, or for being a criminal generally.”

Sims v. State, 273 S.W.3d 291, 294-95 (Tex. Crim. App. 2008) (citation omitted).

Evidence of extraneous offenses is thus generally inadmissible at the guilt phase of trial

to prove the defendant acted in conformity with a criminal character. Such evidence is

“inherently prejudicial, tends to confuse the issues, and forces the accused to defend

himself against charges not part of the present case against him.” Id.


       The evidence appellant challenges in this case, however, carries only a remote

possibility it contributed to his conviction.      The evidence came only from a single

witness, Winters, and she cited only a single source for its information, appellant’s

statement to her. The record presents no reason why jurors would have believed


                                             9
Winters’ testimony regarding appellant’s statement but disbelieved her testimony

describing his assault of her.      The nature of the extraneous-offense evidence thus

weighs against a finding of harm.


       The state of the evidence supporting the jury’s verdict also weighs against a

finding of harm. As noted, the contested issue at trial was whether appellant’s contact

with Winters’ sexual organ was without her consent. In addition to Winters’ testimony

that she was “scared of” appellant, that she regarded his text message as threatening,

that he grabbed her and forced her down in her chair at a point, and that she “was

scared he was going to hurt me,” the jury had before it the video appellant made of his

penile contact with her sexual organ.


       As appellant’s brief describes it, the record shows “Appellant retrieved a video

camera and ordered the complainant to strip naked and perform oral sex on him, which

she did. Appellant told the complainant that if she did not please him orally, he would

penetrate her vaginally. The complainant told the jury that she was afraid Appellant

would strike her due to his size and his loud, angry demeanor. Although Appellant

never struck the complainant, Appellant did put on a condom and begin to have sexual

intercourse [with] her.”


       The video, some thirty minutes in length, also depicts that Winters whimpered

and cried much of the time during their activities. Virtually all her actions depicted on

the video were directed by appellant, usually in a forceful and loud voice. As examples,

on one occasion, he yelled at her when she was slow to remove her panties, and on

another, he commanded her to “smile for the camera.” As she performed oral sex, he


                                            10
repeatedly and forcefully exhorted her to perform better. During oral sex, appellant on

occasion placed his hand on Winters’ head, appearing to pull her head toward his body.

At the time appellant tried to initiate vaginal intercourse, Winters can be heard saying

“No, no, no” to which appellant responded, “You don’t have a choice.” Winters then can

be heard crying out in pain, saying “ow” several times.


      The State made brief reference to appellant’s statement in its closing argument.

For the reasons we have described, however, we find it unlikely that Winters’ testimony

of appellant’s statement to her had more than a slight effect on the jury’s conviction of

appellant of the lesser-included offense of sexual assault. Johnson, 967 S.W.2d at 417.


      During the punishment stage of trial, witnesses were asked, on several

occasions during cross-examination, questions relating to appellant’s statement that he

had “done this three times before.” The jury thus heard this information several times

during the punishment phase.


      The statement was mentioned only once by defense counsel during closing

argument when he challenged Winters’ credibility regarding the statement. And,

additional punishment evidence was offered. A police officer testified to the recovery of

images taken from appellant’s computer, all of which were sexual in nature and some of

which he agreed included “sexually assaultive material.” Too, it must be considered

that the jury retained the video evidence in mind as they considered punishment.


      The question of the likely impact of the extraneous-offense evidence during the

punishment stage presents a closer question than at the guilt-innocence stage.

Nonetheless, having considered the record as a whole and the relevant factors, we

                                           11
have fair assurance that appellant’s statement had no more than a slight effect on the

jury’s punishment decision. We resolve appellant’s second issue against him.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                 James T. Campbell
                                                     Justice



Do not publish.




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