                                                                         PD-1662-14
                     PD-1662-14                         COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                    No. ______________               Transmitted 12/29/2014 4:04:18 PM
                                                      Accepted 12/30/2014 10:46:11 AM
                                                                          ABEL ACOSTA
                            In the                                                CLERK
                Court of Criminal Appeals
                          At Austin
                
                    No. 01-12-01125-CR
                            In the
                     Court of Appeals
                           For the
                   First District of Texas
                         At Houston
                
                        No. 1068173
                In the 209th District Court
                 Of Harris County, Texas
                

            GARY WAYNE WILSON
                         Appellant
                            V.
             THE STATE OF TEXAS
                          Appellee
                
STATE’S PETITION FOR DISCRETIONARY REVIEW
                

                                        DEVON ANDERSON
                                        District Attorney
                                        Harris County, Texas

                                        JESSICA AKINS
                                        Assistant District Attorney
                                        Harris County, Texas
December 30, 2014                       1201 Franklin, Suite 600
                                        Houston, Texas 77002
                                        Telephone: 713.755.5826
                                        Fax: 713.755.5809
                                        akins_jessica@dao.hctx.net

                                        Counsel for Appellee

            ORAL ARGUMENT REQUESTED
                       IDENTIFICATION OF THE PARTIES

      Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all

interested parties is provided below.

      Victim:

             K.M., a child victim under the age of 14

      Counsel for the State:

             Devon Anderson, District Attorney of Harris County
             Jessica Akins, Assistant District Attorney on appeal
             Paul Fortenberry & Lisa Bailey, Assistant District Attorneys at trial
             1201 Franklin, Suite 600, Houston, Texas 77002

             Lisa McMinn, State Prosecuting Attorney
             P. O. Box 13046, Austin, Texas 78711

      Appellant or criminal defendant:

             Gary Wayne Wilson

      Counsel for Appellant:

             Charles Hinton, Ken Goode  Counsel at trial
             Charles Hinton, Counsel on appeal
             P.O. Box 53719, Houston, Texas 77052

      Trial Judge:

             Honorable Michael T. McSpadden, Presiding Judge




                                         i
                                              TABLE OF CONTENTS


IDENTIFICATION OF THE PARTIES .............................................................................. iii

INDEX OF AUTHORITIES ................................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1

REASONS FOR REVIEW ........................................................................................................ 1

STATEMENT OF THE CASE ................................................................................................ 2

STATEMENT OF THE PROCEDURAL HISTORY ........................................................ 2

STATEMENT OF FACTS ....................................................................................................... 2

FIRST GROUND FOR REVIEW.......................................................................................... 4

          The First Court of Appeals erred by utilizing the constitutional
          harm standard when evaluating an evidentiary ruling.

SECOND GROUND FOR REVIEW .................................................................................... 7

          The First Court of Appeals erred in finding the excluded
          character evidence was appellant’s only defense and so vital to his
          defense that the exclusion was harmful under the constitutional
          standard.

CONCLUSION .........................................................................................................................10

CERTIFICATE OF SERVICE ............................................................................................... 11

CERTIFICATE OF COMPLIANCE .................................................................................... 11




                                                                 ii
                                            INDEX OF AUTHORITIES



CASES

Potier v. State,
  68 S.W.3d 657 (Tex. Crim. App. 2002) ........................................................................ 5, 6
Ray v. State,
  178 S.W.3d 833 (Tex. Crim. App. 2005)....................................................................... 5, 6
Wheeler v. State,
 67 S.W.3d 879 (Tex. Crim. App. 2002) ............................................................................ 4
Wiley v. State,
  74 S.W.3d 399 (Tex. Crim. App. 2002)....................................................................5, 8, 9
Wilson v. State,
  No. 01-12-01125-CR, 2014 WL 6601218
  (Tex. App.—Houston [1st Dist.] Nov. 20, 2014, pet. filed)............................ 2, 3, 4, 6


RULES

TEX. R. APP. P. 66.3(c)................................................................................................................. 1
TEX. R. APP. P. 66.3(e)................................................................................................................. 1
TEX. R. APP. P. 68.2(a) ............................................................................................................... 2
TEX. R. APP. P. 68.4(a) ................................................................................................................ i
TEX. R. APP. P. 68.4(d) ................................................................................................................ 1




                                                                   iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 68.4(d), the State requests oral argument.

Argument in this case is necessary because the court of appeals’ opinion is in

conflict with at least two decisions from this Court, Ray v. State, 178 S.W.3d 833,

835 (Tex. Crim. App. 2005) and Potier v. State, 68 S.W.3d 657 (Tex. Crim. App.

2002) (erroneous evidentiary rulings rarely rise to level of denying fundamental

constitutional right to present meaningful defense). And the First Court utilized

dicta from this Court’s opinion in Wheeler to support its conclusion that the trial

court abused its discretion in excluding character evidence. Wheeler v. State, 67

S.W.3d 879, 882 (Tex. Crim. App. 2002).


                             REASONS FOR REVIEW

      This petition for discretionary review should be granted because the court

of appeals has issued an opinion in conflict with decisions from this Court. See

TEX. R. APP. P. 66.3(c). Further, the justices on the panel of the First Court of

Appeals have disagreed on a material question of law necessary to the court’s

decision. See TEX. R. APP. P. 66.3(e).
                           STATEMENT OF THE CASE

      Appellant was charged by indictment with the felony offense of aggravated

sexual assault of a child. (CR 17). The jury found appellant guilty as charged in

the indictment and sentenced him to confinement for life in the Institutional

Division of the Texas Department of Criminal Justice. (CR VIII 2047, 2049).


               STATEMENT OF THE PROCEDURAL HISTORY

      On November 20, 2014, a panel of the First Court of Appeals issued a

published opinion reversing this conviction and remanding the case for a new trial.

See Wilson v. State, No. 01-12-01125-CR, 2014 WL 6601218 (Tex. App.—Houston [1st

Dist.] Nov. 20, 2014, pet. filed). The opinion was authored by Justice Higley, and

joined by Justice Jennings. Id. Justice Sharp filed a dissenting opinion. Id. The

State’s petition for discretionary review is timely filed. See TEX. R. APP. P. 68.2(a).


                             STATEMENT OF FACTS

       The child victim in this case, K.M., testified that he was just six years old

when appellant began to physically and sexually assault him. (RR IV 134, 154).

K.M. described how appellant had the opportunity to abuse him over several years

when appellant began dating K.M.’s mother and then moved in with the family.

(RR IV 94-161).




                                           2
      K.M. testified appellant physically beat him several times, by punching him

in the chest, stomach and face. (RR IV 96). He also testified appellant beat him

with a belt buckle, wooden paddle and metal clothes hanger, causing him pain.

(RR IV 96-99, 142-144). And on at least three occasions, appellant threatened to

kill K.M.’s father if K.M. told anyone about the abuse. (RR IV 100).

      K.M. explained the physical abuse turned sexual. The first time, appellant

pulled K.M. close to him while wrestling and forced his penis inside K.M.’s anus,

causing K.M. to cry out from the physical pain. (RR IV 105-113). On another

occasion, appellant surprised K.M. in the shower. (RR IV 115-124). K.M. testified

appellant forced him down on his knees, grabbed his head and tilted it back, and

forced his penis inside K.M.’s mouth. (RR IV 119-122). Appellant then instructed

K.M. to move his head up and down until appellant ejaculated. (RR IV 122-123).

      K.M. estimated that appellant sexually abused him between two to five

times per month, from 2002-2004, causing him physical and emotional pain. (RR

IV 105, 124-132, 136-138, 153, 156). K.M. told the jury appellant eventually became

more violent and progressed to using duct tape to bind K.M.’s hands and ankles so

he could anally rape and physically assault K.M. (RR IV 148-153).

      K.M.’s sister, who lived in the home with appellant and K.M., testified at

trial she witnessed appellant both physically and sexually assault K.M. See Wilson,

2014 WL 6601218 at *1. Dr. Donaruma examined K.M. after he disclosed sexual



                                         3
abuse and discovered a healing tear around K.M.’s anal opening, which was

consistent with sexual assault of the anus. Id.


                        FIRST GROUND FOR REVIEW


     The First Court of Appeals erred by utilizing the constitutional harm
               standard when evaluating an evidentiary ruling.

      In his sole issue on appeal, appellant complained the trial court abused its

discretion by excluding evidence of his good character for moral and safe conduct

around young children. See Wilson, 2014 WL 6601218 at *2. At trial, appellant

offered evidence from nine people who testified they each had a good opinion

concerning appellant’s character in regard to the moral and safe conduct around

children. (RR V 61-70). Because appellant did not provide any authority for the

admission of the evidence, the trial court excluded it. (RR V 59-60).

      In its opinion, the Court of Appeals noted that appellant conceded two of

the witnesses could not offer relevant testimony, so the Court limited its analysis

to the admissibility of character evidence from seven of the witnesses. See Wilson,

2014 WL 6601218 at *3-4. The First Court utilized dicta from the Wheeler opinion

to hold the trial court abused its discretion in excluding this evidence. See Wilson,

2014 WL 6601218 at *4; Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002).




                                          4
      And upon appellant’s suggestion, the Court further held the exclusion of

this evidence should be reviewed for constitutional harm, rather than non-

constitutional harm. Wilson, 2014 WL 6601218 at *4-5. Under that standard, the

First Court held the trial court’s error was harmful and the Court remanded the

case for a new trial. Id. at *6-7. Justice Sharp dissented, agreeing that although it

was error to exclude the evidence, the proper analysis was for non-constitutional

harm, and under this standard, the error was harmless. Id. at *7-10.

      The improper exclusion of evidence may raise a constitutional violation in

two circumstances: 1) when an evidentiary rule categorically and arbitrarily

prohibits the defendant from offering relevant evidence that is vital to his defense;

or 2) when a trial court erroneously excludes evidence that is vital to the case, and

the exclusion precludes the defendant from presenting a defense. Ray v. State, 178

S.W.3d 833, 835 (Tex. Crim. App. 2005).

      But neither of those circumstances is present. Wiley v. State, 74 S.W.3d 399,

405 (Tex. Crim. App. 2002) (erroneous evidentiary rulings rarely rise to level of

denying fundamental constitutional right to present meaningful defense). Thus,

the Court of Appeals erred in relying on the second circumstance. The dissenting

opinion from Justice Sharp is consistent with authority from this Court. See Potier

v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002); Ray, 178 S.W.3d at 836 (exclusion of




                                          5
testimony from an eyewitness to the crime was reviewed for non-constitutional

error).

          This Court granted review in Potier to clarify the use of harm standards

when evidence supporting the defendant’s claim of self-defense was erroneously

excluded. Potier, 68 S.W.3d at 657. In that case, the trial court excluded testimony

of rumors that the defendant and his neighbor had heard from other individuals in

the neighborhood that the victim intended to kill him on the day of the shooting.

Potier, 68 S.W.3d at 658. This Court held the exclusion of some self-defense

evidence did not prevent the defendant from presenting a defense in his murder

trial, and thus, did not amount to constitutional error. Id. at 657. This Court

further reasoned, under the non-constitutional harm standard, that the trial

court’s error in excluding the evidence was harmless because the defendant was

able to convey his theory of the case through other evidence. Id. at 666. This Court

noted, “Exclusions of evidence are unconstitutional only if they “significantly

undermine fundamental elements of the accused’s defense.” Id.

      The record in this case clearly demonstrates appellant was not relying on his

good character to defend himself against the sexual assault allegations.

Appellant’s defense at trial was that K.M. was a manipulative child with severe

mental problems who fabricated the allegations. Wilson, 2014 WL 6601218 at * 7-8

(Sharp, J., dissenting).   Appellant’s trial counsel thoroughly explored K.M.’s


                                         6
behavioral and psychiatric issues during the cross-examination of the State

witnesses. Wilson, 2014 WL 6601218 at * 7-8 (Sharp, J., dissenting). Because the

excluded character evidence was not the linchpin of appellant’s defense, the Court

of Appeals erred by reviewing the case for constitutional harm. See Potier, 68

S.W.3d at 666; Ray, 178 S.W.3d at 836.


                       SECOND GROUND FOR REVIEW


 The First Court of Appeals erred in finding the excluded character evidence
was appellant’s only defense and so vital to his defense that the exclusion was
                 harmful under the constitutional standard.

      Even assuming the constitutional standard is appropriate, the Court of

Appeals erred in their harm analysis.

      At trial, appellant’s defense was that K.M. fabricated the offense. Appellant

focused on the inconsistencies in K.M.’s testimony and his mental instability,

basically characterizing him as a manipulative liar. In fact, appellant’s own trial

counsel did not seem overly concerned with presenting the character evidence and

never gave the impression it was vital to his client’s defense.

      After the State rested its case-in-chief, appellant’s trial counsel asked to

make a proffer of testimony. (RR V 59). Defense counsel stated that he had nine

witnesses who could testify regarding their opinion of appellant’s character as to




                                           7
his moral and safe conduct around children. (RR V 59). The trial judge then

inquired about the law pertinent to appellant’s theory of admissibility:

     THE COURT: Is there a case specifically on moral and safe conduct
     around children?

     MR. HINTON: Judge, I don’t have a case here. And I’m not taken by
     surprise by this because several days earlier both you and the prosecutor
     put me on notice that he would object to it and that you were most
     likely going to overrule it. So, I’m not put on surprise. I just wanted to
     make the proffer of proof and the Court rule on it and then — I'm sorry
     — and then the Court rule on it.

     THE COURT: Okay. The proffer will not be allowed. (sic) (RR V 60).

      Appellant’s trial counsel openly admitted the trial judge had previously

requested legal authority from him on this issue and after several days, he failed to

provide it. (RR V 60). In the offer of proof, appellant called nine witnesses, all of

which possessed the same good opinion concerning appellant’s character with

regard to his moral and safe conduct around children. (RR V 61-70).

      At most, the additional character evidence simply furthered appellant’s

theory, that he was not the type of person who would commit this crime. The

Court of Appeals’ decision to hold the exclusion of this evidence harmful is

inconsistent with authority from this Court. See Wiley, 74 S.W.3d at 405.

      In Wiley, this Court reviewed an arson conviction where the trial court

excluded evidence that indicated an alternate perpetrator may have committed the

offense. Id. at 408. The defendant claimed two pieces of evidence should have been



                                         8
admitted with regard to the fire at his restaurant: 1) his statement to an insurance

investigator that on the day of the fire he saw an unruly customer, whom he had

kicked out of the restaurant the previous night, nearby watching the fire burn,

and; 2) a statement from a witness who saw that customer acting crazy and

destroying property at the restaurant the night before the fire. Id. at 403.

      This Court noted the defendant was able to present other evidence to

further his defense that he was not the fire starter, specifically evidence that he

had received an arson threat from a disgruntled employee. Id. at 402. Thus, this

Court opined that while the trial judge’s ruling did effectively preclude appellant

from presenting some of his evidence that another person committed the offense, it

did not violate his constitutional right to present a defense. Wiley, 74 S.W.3d at

408 (emphasis in original).

      Similarly, appellant’s character references in this case simply furthered his

defensive theory that he was not the type of person to commit this offense. It was

only some evidence. And none of it was direct evidence regarding the charged

offense. The Court of Appeals erred in determining the exclusion of this evidence

was harmful. Wiley, 74 S.W.3d at 408.

      Review of the Court of Appeal’s opinion in this case is necessary, as Gary

Wilson v. State is a published opinion that is in conflict with several decisions from

this Court.


                                          9
                                 CONCLUSION

      It is respectfully requested that this petition be granted, the Court of

Appeals’ judgment on this issue be reversed, and the conviction be affirmed.



                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas

                                                /s/   Jessica Akins
                                                JESSICA AKINS
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                akins_jessica@dao.hctx.net
                                                713.755.5826
                                                TBC No. 24029415




                                        10
                          CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent to the

following addresses:

      Charles Hinton                                Lisa C. McMinn
      Attorney at Law                               State Prosecuting Attorney
      P.O. Box 53719                                P. O. Box 13046
      Houston, Texas 77052                          Austin, Texas 78711
      chashinton@sbcglobal.net                      Lisa.McMinn@SPA.texas.gov




                                                    /s/   Jessica Akins

                                                    JESSICA AKINS
                                                    Assistant District Attorney
                                                    Harris County, Texas
                                                    1201 Franklin, Suite 600
                                                    Houston, Texas 77002
                                                    akins_jessica@dao.hctx.net
                                                    713.755.5826
                                                    TBC No. 24029415


                       CERTIFICATE OF COMPLIANCE


      This is to certify that this computer-generated document has a word count
of 2633 words, based upon the representation provided by the word processing
program that was used to create the document.



                                                    /s/   Jessica Akins
Date: 12/29/2014


                                         11
APPENDIX A




    12
                     2014 WL 6601218                                        Rule 103.
       Only the Westlaw citation is currently available.
                                                                            Cases that cite this headnote
     NOTICE: THIS OPINION HAS NOT BEEN
     RELEASED FOR PUBLICATION IN THE
PERMANENT LAW REPORTS. UNTIL RELEASED,
IT IS SUBJECT TO REVISION OR WITHDRAWAL.                              [2]
                                                                            Criminal Law
           Court of Appeals of Texas,
              Houston (1st Dist.).
                                                                            Court of Appeals reviews a trial court’s decision
             Gary Wayne WILSON, Appellant                                   to admit or exclude evidence under an abuse of
                            v.                                              discretion standard.
               The STATE of Texas, Appellee.
           No. 01–12–01125–CR. | Nov. 20, 2014.                             Cases that cite this headnote


Synopsis
Background: Defendant was convicted in the 209th                      [3]
                                                                            Criminal Law
District Court, Harris County, of aggravated sexual
assault of a child. Defendant appealed.
                                                                            Court of Appeals will not reverse a trial court’s
                                                                            ruling admitting or excluding evidence unless
Holdings: The Court of Appeals, Higley, J., held that:                      that ruling falls outside the zone of reasonable
                                                                            disagreement.
[1]
    district court abused its discretion in excluding
                                                                            Cases that cite this headnote
evidence of seven witnesses who were prepared to testify
that defendant had a good character regarding moral and
safe conduct around children;
                                                                      [4]
[2]                                                                         Criminal Law
   erroneous exclusion of testimony was constitutional
error; and
[3]                                                                         An accused in a criminal case is permitted to
      error was not harmless.
                                                                            introduce evidence of a specific good-character
                                                                            trait to show that it is improbable that he
Reversed and remanded.
                                                                            committed the charged offense, when that
                                                                            character trait is relevant to the offense. Rules of
Sharp, J., dissented and filed opinion.
                                                                            Evid., Rule 404(a)(1)(A).

                                                                            Cases that cite this headnote

  West Headnotes (18)
                                                                      [5]
                                                                            Criminal Law
 [1]
            Criminal Law
                                                                            Trial court abused its discretion in excluding
                                                                            evidence of seven witnesses who were prepared
            Defendant preserved for appellate review
                                                                            to testify that defendant had a good character
            whether trial court abused its discretion in
                                                                            regarding moral and safe conduct around
            excluding evidence of his good character for
                                                                            children in trial for aggravated sexual assault of
            moral and safe conduct around young children
                                                                            a child; witnesses knew defendant during time
            in trial for aggravated sexual assault of a child,
                                                                            period in question and would testify that they
            where defendant informed court he would
                                                                            had seen defendant around young children on
            present testimony of his family and friends
                                                                            many occasions, and testimony was directly
            concerning such character, court sustained
                                                                            relevant to offense with which defendant was
            State’s objection to evidence, and defendant
                                                                            charged. Rules of Evid., Rule 404(a)(1)(A).
            made an offer of proof informing court of
            substance of excluded evidence. Rules                           Cases that cite this headnote
            App.Proc., Rule 33.1(a)(1)(A); Rules of Evid.,

                                                                 13
                                                                         Erroneous exclusion of evidence can rise to the
[6]
       Rape                                                              level of constitutional error, requiring appellate
                                                                         court to reverse a conviction unless the court
                                                                         determines beyond a reasonable doubt that the
       A defendant charged with aggravated sexual                        error did not contribute to conviction, when a
       assault is entitled to proffer evidence of his good               state evidentiary rule categorically and
       character or propensity for moral and safe                        arbitrarily prohibits the defendant from offering
       relations with small children or young boys.                      relevant evidence that is vital to his defense.
       Rules of Evid., Rule 404(a)(1)(A).                                Rules App.Proc., Rule 44.2(a).

       Cases that cite this headnote                                     Cases that cite this headnote



[7]                                                               [11]
       Criminal Law                                                      Criminal Law


       Excluding evidence of a defendant’s good                          While erroneously excluding testimony that
       character or propensity for moral and safe                        would incrementally further the defendant’s
       relations with small children or young boys in                    defensive theory is not constitutional error
       trial for aggravated sexual assault is an abuse of                requiring appellate court to reverse a conviction
       discretion. Rules of Evid., Rule 404(a)(1)(A).                    unless the court determines beyond a reasonable
                                                                         doubt that the error did not contribute to
       Cases that cite this headnote                                     conviction, excluding evidence that goes to the
                                                                         heart of the defense is. Rules App.Proc., Rule
                                                                         44.2(a).
[8]
       Criminal Law                                                      Cases that cite this headnote


       Generally, the erroneous admission or exclusion
                                                                  [12]
       of evidence is nonconstitutional error that must                  Criminal Law
       be disregarded unless the error affects
       defendant’s substantial rights. Rules App.Proc.,
       Rule 44.2(b).                                                     Erroneous exclusion of testimony from
                                                                         defendant’s family and friends concerning his
       Cases that cite this headnote                                     good character regarding moral and safe conduct
                                                                         around children was constitutional error, and
                                                                         thus appellate court was required to reverse
                                                                         conviction for aggravated sexual assault of a
[9]
       Criminal Law                                                      child unless court determined beyond a
                                                                         reasonable doubt that the error did not contribute
                                                                         to conviction; the only witness for defendant
       Erroneous exclusion of evidence can rise to the                   during guilt-innocence phase of trial was his
       level of constitutional error, requiring appellate                biological daughter who testified that she and
       court to reverse a conviction unless the court                    defendant’s biological son lived with defendant
       determines beyond a reasonable doubt that the                     off-and-on during time in question, no
       error did not contribute to conviction, when the                  identifiable defensive theory was developed
       excluded evidence forms such a vital portion of                   during cross-examination of State’s witnesses,
       the case that exclusion effectively precludes the                 defendant’s closing argument consisted solely of
       defendant from presenting a defense. Rules                        urging jury to consider that State had not carried
       App.Proc., Rule 44.2(a).                                          its evidentiary burden, and defendant’s
                                                                         credibility and character were pivotal matters.
       Cases that cite this headnote                                     Rules App.Proc., Rule 44.2(a); Rules of Evid.,
                                                                         Rule 404(a)(1)(A).

                                                                         Cases that cite this headnote
[10]
       Criminal Law

                                                             14
                                                                           Cases that cite this headnote
[13]
       Criminal Law

                                                                   [18]
       The mere fact that there is other evidence that                     Criminal Law
       could support a conviction does not establish
       that a constitutional error is harmless; instead, if
       there is a reasonable likelihood that the error                     Constitutional error in excluding testimony from
       materially affected the jury’s deliberations, then                  defendant’s family and friends concerning his
       the error is not harmless beyond a reasonable                       good character regarding moral and safe conduct
       doubt. Rules App.Proc., Rule 44.2(a).                               around children was not harmless in trial for
                                                                           aggravated sexual assault of a child, even
       Cases that cite this headnote                                       though victim testified about assaults and
                                                                           victim’s sister testified that she saw defendant
                                                                           rape victim on one occasion; victim had a
                                                                           history of lying and being manipulative and was
[14]
       Criminal Law                                                        diagnosed with mental disorders and suffered
                                                                           hallucinations, sister could have had motivations
                                                                           to testify other than to give an unaltered account
       When determining whether a constitutional error                     of what she observed, doctor who performed
       is harmless, the reviewing court should                             victim’s physical examination following his
       calculate, as nearly as possible, the probable                      outcry testified there were multiple possible
       impact of the error on the jury in light of the                     explanations of what caused healing tear around
       other evidence. Rules App.Proc., Rule 44.2(a).                      his anal opening, and another doctor testified
                                                                           there may have been more than one thing that
       Cases that cite this headnote                                       could have caused victim’s psychological
                                                                           characteristics that were prevalent in victims of
                                                                           sexual abuse. Rules App.Proc., Rule 44.2(a);
                                                                           Rules of Evid., Rule 404(a)(1)(A).
[15]
       Criminal Law
                                                                           Cases that cite this headnote

       A court of appeals reviewing a cold record is ill
       suited to make determinations of credibility
       much less to weigh them.
                                                                   On Appeal from the 209th District Court, Harris County,
       Cases that cite this headnote                               Texas, Trial Court Case No. 1068173.

                                                                   Attorneys and Law Firms
                                                                   Charles Hinton, Houston, TX, for appellant.
[16]
       Criminal Law
                                                                   Devon Anderson, District Attorney—Harris County,
                                                                   Texas, Jessica Akins, Assistant District Attorney,
       The jury is in the best position to judge the               Houston, TX, for Appellee.
       credibility of a witness because it is present to
       hear the testimony, as opposed to an appellate              Panel consists of Justices JENNINGS, HIGLEY, and
       court who relies on the cold record.                        SHARP.

       Cases that cite this headnote
                                                                                          OPINION

[17]                                                               LAURA CARTER HIGLEY, Justice.
       Criminal Law                                                *1 Appellant, Gary Wayne Wilson, was charged by
                                                                   indictment with aggravated sexual assault of a child.1 The
                                                                   jury found him guilty and assessed punishment at life
       Court of Appeals must afford almost complete                imprisonment. In one issue on appeal, Appellant argues
       deference to a jury’s determination of                      that the trial court abused its discretion by excluding
       credibility, and the jury is the sole judge of what         evidence of his good character for moral and safe conduct
       weight to give such testimony.
                                                              15
around young children.                                              abnormal anal exam” with the discovery of “a healing tear
                                                                    around his anal opening” that “would be consistent with a
We reverse and remand for a new trial.                              sexual assault of the anus.” She also testified that there
                                                                    were multiple possible explanations of what caused the
                                                                    tear and that it is commonly “unlikely” to see an injury as
                                                                    the result of a sexual assault of the anus because the anus
                                                                    can typically accommodate objects the size of a penis.
                       Background
KM’s parents separated around early 2001, when KM was               *2 Dr. L. Thompson, the director of therapy and
almost four years old. After the separation, KM, his older          psychological services at the Harris County Children’s
brother, his older sister, and his younger brother lived            Assessment Center, testified as the State’s expert about
with their mother. Some time after the separation, KM’s             certain psychological characteristics that were prevalent
mother started dating Appellant. Appellant moved in with            in victims of sexual abuse. These characteristics included
KM and his family in 2002. KM made the outcry of                    sleep difficulties, appetite difficulties, anxiety disorders,
sexual abuse six months later.                                      and interpersonal difficulties. The record established that
                                                                    KM suffered from a number of the characteristics
KM’s father testified at trial that, early in his youth, KM         described by Dr. Thompson. Nevertheless, Dr. Thompson
had been a happy child. He testified that this behavior             was careful to explain that “although there might be a
started to change around the time that Appellant moved in           higher incidence of [a] certain problem in people who
with KM’s family. Over time, KM has been diagnosed                  have been [sexually] abused, there may be more than one
with multiple psychological disorders, including attention          thing that could cause that particular problem.”
deficit hyperactivity disorder, bipolar disorder, and post-
traumatic stress disorder. KM has been prescribed                   For his case-in-chief, Appellant sought to present nine
medication for his disorders and has been admitted into             witnesses to testify about Appellant’s character regarding
psychological treatment centers numerous times in his               moral and safe conduct around children. These witnesses
childhood. A doctor from one of these facilities testified          were two of Appellant’s daughters, his son, his brother, a
that KM suffered hallucinations, including voices telling           friend, a nephew-in-law, his current girlfriend, his
him to hurt his mother. By the age of 15—his age at the             girlfriend’s mother, and a niece. The State objected that
time of trial—KM had been charged with multiple crimes,             the testimony was improper bolstering and was not
including assault of his sister and making a terroristic            relevant. The trial court sustained the objections and
threat. KM’s father acknowledged that KM had a history              denied the request to allow the people to testify.
of being manipulative and telling lies.
                                                                    Appellant presented the testimony of the nine witnesses in
KM testified at length and in detail about the sexual               an offer of proof. All nine people testified that they had
assaults to which he described Appellant subjecting him.            seen Appellant around young children on many occasions,
He testified that Appellant sexually assaulted him two to           that they had “an opinion regarding [Appellant’s]
five times every month from the time Appellant moved in             character regarding moral and safe conduct around
with the family until October 2005, when KM was                     children,” and that their opinion of Appellant’s character
removed from the home. He described six of those                    was “good.”
instances in detail. In addition, KM testified about
physical abuse he suffered from Appellant. KM and his
sister both testified that Appellant would regularly walk
around the house naked, would have sex with KM’s
mother in front of the children, and would leave                                     Exclusion of Evidence
pornographic magazines lying around the house. KM                   In his sole issue, Appellant argues that the trial court
testified that Appellant threatened to kill KM and his              abused its discretion by excluding evidence of his good
father if KM ever told anyone about the abuse.                      character for moral and safe conduct around young
                                                                    children.
KM’s sister testified that she once saw Appellant sexually
assaulting KM by penetrating KM’s anus with
Appellant’s penis. She testified that Appellant threatened
to kill her and her father if she told anyone about what she        A. Preservation
                                                                    [1]
saw. She also witnessed Appellant physically assault KM                 As an initial matter, the State argues that Appellant
on multiple occasions.                                              failed to preserve this issue for appellate review. As the
                                                                    State correctly points out, the Texas Rules of Appellate
After he made his outcry about sexual assault, KM was               Procedure require,
given a physical examination. Dr. M. Donaruma testified
for the State about the results of the examination. She                  (a) In General. As a prerequisite to presenting a
testified that KM’s physical examination was “an                         complaint for appellate review, the record must show
                                                                         that:
                                                               16
     (1) the complaint was made to the trial court by a             made just such an offer of proof.
     timely request, objection, or motion that:
                                                                    We hold the issue has been preserved for review.
     (A) stated the grounds for the ruling that the
     complaining party sought from the trial court with
     sufficient specificity to make the trial court aware of
     the complaint, unless the specific grounds were                B. Error
                                                                    [2] [3]
     apparent from the context....                                          Next, we consider whether the trial court abused its
                                                                    discretion by excluding the requested evidence. We
TEX.R.APP. P. 33.1(a)(1)(A) (emphasis added). The                   review a trial court’s decision to admit or exclude
State argues that, because Appellant failed to present the          evidence under an abuse of discretion standard. Shuffield
trial court with relevant case law supporting his position          v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.2006). We
that the testimony he sought to have admitted was                   will not reverse a trial court’s ruling unless that ruling
admissible after the trial court asked him if he had such           falls outside the zone of reasonable disagreement. Torres
case law, Appellant failed to preserve the issue for                v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002).
appellate review.
                                                                    [4]
                                                                        Generally, “[e]vidence of a person’s character or
The State misconceives what constitutes “the complaint”             character trait is not admissible for the purpose of proving
as provided in rule 33.1. A stated intent to present                action in conformity therewith on a particular occasion.”
evidence is not a “complaint.” Appellant informed the               TEX.R. EVID. 404(a). “However, an accused in a
trial court he would present the testimony of people                criminal case is permitted to introduce evidence of a
concerning his “character regarding moral and safe                  specific good-character trait to show that it is improbable
conduct around children.” It was the State that objected to         that he committed the charged offense, when that
this evidence, arguing that it constituted improper                 character trait is relevant to the offense.” Melgar v. State,
bolstering and was not relevant. These objections are “the          236 S.W.3d 302, 306–07 (Tex.App.-Houston [1st Dist.]
complaint[s] made to the trial court by a timely request,           2007, pet. ref’d) (citing TEX.R. EVID. 404(a)(1)(A)).
objection, or motion.” Id. The trial court sustained those
objections, and the Appellant now “present[s] those                 [5]
                                                                       Appellant asked the trial court to allow nine people to
complaint[s] for appellate review.” Id.                             testify about Appellant’s character. During the offer of
                                                                    proof, all nine people testified that they had seen
*3 The State’s reliance on rule 103 of the Texas Rules of           Appellant around young children on many occasions, that
Evidence is similarly misplaced. Rule 103 provides,                 they had “an opinion regarding [Appellant’s] character
                                                                    regarding moral and safe conduct around children,” and
     (a) Effect of Erroneous Ruling. Error may not be               that their opinion of Appellant’s character was “good.”
     predicated upon a ruling which admits or excludes              The State objected that the testimony was improper
     evidence unless a substantial right of the party is            bolstering. The trial court denied the request to allow the
     affected, and                                                  people to testify as identified. On appeal, Appellant
                                                                    acknowledges that two of the people presented to testify
     (1) Objection. In case the ruling is one admitting             did not know Appellant during the time period in question
     evidence, a timely objection or motion to strike               and, accordingly, their opinion about Appellant’s
     appears of record, stating the specific ground of              character regarding conduct around children would not be
     objection, if the specific ground was not apparent             relevant. Appellant argues, however, that the remaining
     from the context....                                           seven people should have been allowed to testify.
     (2) Offer of proof. In case the ruling is one excluding
                                                                    *4 [6] [7] A defendant charged with aggravated sexual
     evidence, the substance of the evidence was made
                                                                    assault is “entitled to proffer evidence of his good
     known to the court by offer, or was apparent from
                                                                    character (or propensity) for moral and safe relations with
     the context within which questions were asked.
                                                                    small children or young [boys].” Wheeler v. State, 67
TEX.R. EVID. 103 (emphasis added).                                  S.W.3d 879, 882 (Tex.Crim.App.2002) (citing Tex.R.
                                                                    Evid. 404(a)(1)(A)). Excluding such evidence is an abuse
The State argues that Appellant failed to satisfy the               of discretion. See Thomas v. State, 669 S.W.2d 420, 423–
requirements of rule 103(a)(1). By its plain language,              44 (Tex.App.-Houston [1st Dist.] 1984, pet. refd)
however, it is apparent that rule 103(a)(1) only applies to         (reversing judgment based on exclusion of good-character
evidence that was admitted. TEX.R. EVID. 103(a)(1).                 evidence).
Appellant’s evidence was excluded. Accordingly, rule
103(a)(1) does not apply. Instead, for excluded evidence,           Appellant was charged with aggravated sexual assault of
rule 103(a)(2) applies, requiring Appellant to make an              KM. The seven witnesses in question were prepared to
offer of proof, informing the court of the substance of the         testify that Appellant had a good character regarding
excluded evidence. TEX.R. EVID. 103(a)(2). Appellant                moral and safe conduct around children. This is

                                                               17
permissible under rule 404 and directly relevant to offense         no identifiable defensive theory was developed in the
with which he had been charged.                                     course of the cross-examination. Appellant’s closing
                                                                    argument consisted solely of urging the jury to consider
We hold the trial court abused its discretion by excluding          that the State had not carried its evidentiary burden.
this evidence.                                                      Appellant’s counsel even implored the jury to consider
                                                                    the difficulty of how Appellant could “defend [himself]
                                                                    against that kind of allegation.”

C. Type of Error                                                    A review of the record indicates, then, that Appellant’s
Having determined that the trial court’s ruling was error,          sole available defense was the testimony of his friends
we must consider whether the error was harmful. See                 and family that such actions are not in keeping with his
TEX.R.APP. P. 44.2. Different types of error, however,              character. That testimony did not only go to the heart of
have different standards of review for harm. See id. So we          his defense, see Wiley, 74 S.W.3d at 405; it was the sum
must determine what kind of error was committed.                    total of his defense. Additionally, Appellant’s credibility
                                                                    and character are pivotal matters in this case. See
In general, errors in criminal cases are divided between            Hammer, 296 S.W.3d at 561. Accordingly, we hold that
constitutional errors and non-constitutional errors. See id.        the exclusion of the evidence was constitutional error.
For constitutional errors, “the court of appeals must
reverse a judgment of conviction or punishment unless the
court determines beyond a reasonable doubt that the error
did not contribute to the conviction or punishment.”                D. Harm
                                                                    [13] [14]
TEX.R.APP. P. 44.2(a). For non-constitutional errors, any                     When an error is determined to be constitutional
error “must be disregarded” unless the error affects                error, “the court of appeals must reverse a judgment of
Appellant’s substantial rights. TEX.R.APP. P. 44.2(b).              conviction or punishment unless the court determines
                                                                    beyond a reasonable doubt that the error did not
[8] [9] [10] [11]
                “Generally, the erroneous admission or              contribute to the conviction or punishment.” TEX.R.APP.
exclusion of evidence is nonconstitutional error....”               P. 44.2(a). The mere fact that there is other evidence that
Melgar, 236 S.W.3d at 308. Erroneous exclusion of                   could support conviction does not establish that the error
evidence can rise to the level of constitutional error,             is harmless. McCarthy v. State, 65 S.W.3d 47, 55
however, when the excluded evidence “forms such a vital             (Tex.Crim.App.2001). Instead, “[i]f there is a reasonable
portion of the case that exclusion effectively precludes the        likelihood that the error materially affected the jury’s
defendant from presenting a defense.” Potier v. State, 68           deliberations, then the error is not harmless beyond a
S.W.3d 657, 665 (Tex.Crim.App.2002).2 “Trials involving             reasonable doubt. The reviewing court should calculate,
sexual assault may raise particularly evidentiary and               as nearly as possible, the probable impact of the error on
constitutional concerns because the credibility of both the         the jury in light of the other evidence.” Id.
complainant and defendant is a central, often dispositive
                                                                    [15] [16] [17]
issue.” Hammer v. State, 296 S.W.3d 555, 561                                   As we have noted, trials concerning allegations
(Tex.Crim.App.2009). While excluding testimony that                 of sexual assault depend heavily on credibility
would “incrementally” further the defendant’s defensive             determinations between two competing claims of what
theory is not constitutional error, excluding evidence that         happened. See Hammer, 296 S.W.3d 561–62. This case is
“goes to the heart of the defense” is. See Ray v. State, 178        no different. It is well acknowledged, however, that a
S.W.3d 833, 836 (Tex.Crim.App.2005) (holding                        court of appeals reviewing a cold record is ill suited to
erroneously excluding testimony that incrementally                  make determinations of credibility much less to weigh
furthers defense is non-constitutional error); Wiley v.             them. See Lancon v. State, 253 S.W.3d 699, 705
State, 74 S.W.3d 399, 405 (Tex.Crim.App.2002) (holding              (Tex.Crim.App.2008). “The jury is in the best position to
erroneously excluding testimony that “goes to the heart of          judge the credibility of a witness because it is present to
the defense” is constitutional error).                              hear the testimony, as opposed to an appellate court who
                                                                    relies on the cold record.” Id. As a result, we must “afford
[12]
    Appellant argues that the testimony of his family and           almost complete deference to a jury’s” determination of
friends concerning his character was his only defense and           credibility, and “the jury is the sole judge of what weight
that, accordingly, its exclusion amounts to constitutional          to give such testimony.” Id.
error. We must agree.
                                                                    [18]
                                                                        KM testified at length and in detail about the sexual
*5 Appellant presented one witness during the guilt-                assaults to which he described Appellant subjecting him.
innocence phase of the trial. He presented his biological           The record also established, however, that KM had a
daughter, who testified that she and Appellant’s biological         history of lying and of being manipulative. He has been
son lived with Appellant off-and-on during the time in              diagnosed with attention deficit hyperactivity disorder,
question. No further testimony was presented. While                 bipolar disorder, and post-traumatic stress disorder. The
Appellant cross-examined many of the State’s witnesses,             record established that he suffered hallucinations,

                                                               18
including voices telling him to hurt his mother.
                                                                     Just as we cannot assess matters concerning the credibility
*6 KM’s sister testified that she saw Appellant rape KM              of the State’s witnesses presented at trial, we likewise
on one occasion. But we cannot exclude the possibility               cannot assess how the jury would have assessed the
that she could have motivations to testify other than to             credibility of the seven witnesses offered by the defense
give an unaltered account of what she observed, a matter             to testify on Appellant’s good character regarding moral
that could be informed by determinations of credibility.             and safe conduct around children. A jury swayed by the
                                                                     credibility of these seven witnesses and with questions on
Other than the testimony of KM and his sister, there is              the credibility of the State’s witnesses certainly could be
little evidence in the record identifying Appellant as the           materially affected in their deliberations. See McCarthy,
perpetrator of the sexual assaults with which he was                 65 S.W.3d at 55 (holding error is not harmless beyond a
charged. There was testimony from other witnesses                    reasonable doubt if there is reasonable likelihood that
concerning KM’s outcry, but the veracity of those outcry             error materially affected jury’s deliberations). Because we
statements ultimately return to determinations of KM’s               cannot make this determination, we are required to
credibility.                                                         reverse and remand for a new trial.

Dr. Donaruma testified that KM’s physical examination                *7 We sustain Appellant’s sole issue.
following his outcry was “an abnormal anal exam” with
the discovery of “a healing tear around his anal opening”
that “would be consistent with a sexual assault of the
anus.” But she also testified that there were multiple
possible explanations of what caused the tear and that it is                              Conclusion
commonly “unlikely” to see an injury as the result of a              We reverse and remand for a new trial.
sexual assault of the anus because the anus can typically
accommodate objects the size of a penis. Even if we
determined that a jury would conclude that the evidence
was indicative of a sexual assault, however, this evidence           Justice SHARP, dissenting from the judgment.
would not compel the conclusion that Appellant
committed the assault.

Similarly, Dr. Thompson testified about certain
psychological characteristics that were prevalent in                                 DISSENTING OPINION
victims of sexual abuse. These characteristics included
sleep difficulties, appetite difficulties, anxiety disorders,        JIM SHARP, Justice.
and interpersonal difficulties. The record established that          *7 Gary Wayne Wilson was convicted of aggravated
KM suffered from a number of the characteristics                     sexual assault of a child, and the jury assessed his
described by Dr. Thompson. Nevertheless, Dr. Thompson                punishment at life imprisonment.1 Wilson’s position
was careful to explain that “although there might be a               before this Court is that the trial court erred by excluding
higher incidence of [a] certain problem in people who                the testimony of his friends and family regarding his
have been [sexually] abused, there may be more than one              character for moral and safe conduct around young
thing that could cause that particular problem.”                     children and that the error deprived him of his only
                                                                     meaningful defense. I concur that the trial court’s
We endeavor to emphasize that we do not assert that                  exclusion was error and that Wilson preserved this
KM’s testimony—or the testimony of any witness                       argument for our review, however, I do not believe the
presented by the State—was motivated by anything other               error is constitutional error such that Wilson was deprived
than a sincere desire to describe the events as they                 of a fair trial, and respectfully dissent.
actually happened. Nothing in this opinion is meant to
impugn the motives or intentions of KM. The physical
and emotional difficulties he has suffered are apparent
from the record, and we do not make light of them or
castigate him because of them.                                                       Non–Constitutional Error
                                                                     It is well-established that the erroneous admission or
                                                                     exclusion of evidence is generally considered non-
Instead, our concern lies with our very inability to make
                                                                     constitutional error. Melgar v. State, 236 S.W.3d 302, 308
such determinations concerning any of the testifying
                                                                     (Tex.App.-Houston [1st Dist.] 2007, pet. Ref’d). The
witnesses in the presence of a cold record. Credibility
determinations are wisely entrusted to the trier of fact for         erroneous exclusion of evidence, however, can rise to the
this very reason. None of the evidence directly identifying          level of constitutional error under very limited
                                                                     circumstances, including when the excluded evidence
Appellant as the perpetrator of sexual assault was free
                                                                     “forms such a vital portion of the case that exclusion
from the need of credibility determinations.

                                                                19
effectively precludes the defendant from presenting a                 178 S.W.3d 833, 836 (Tex.Crim.App.2005) (holding
defense.” Potier v. State, 68 S.W.3d 657, 665                         erroneously excluding testimony that incrementally
(Tex.Crim.App.2002).          Cases     involving        such         furthers defense is non-constitutional error). Moreover,
constitutional errors are rare exceptions to the rule. See id.        the fact that Wilson was unable to present positive
at 663 (“Erroneous evidentiary rulings rarely rise to the             character testimony does not necessarily mean that the
level of denying the fundamental constitutional rights to             error was of a constitutional magnitude, especially in such
present a meaningful defense.”)                                       a case as this with physical and corroborating evidence.
                                                                      See, e.g., Hammer v. State, 296 S.W.3d 555, 561–62
The excluded evidence in this case consists of opinion                (Tex.Crim.App.2009) (stating that credibility of
testimony from seven of Wilson’s family members and a                 complainant and defendant “is a central, often dispositive,
close friend (Wilson’s two daughters, a son, a niece, a               issue” in sexual assault trials because “[s]exual assault
nephew, his brother, and his brother’s girlfriend) who                cases are frequently ‘he said, she said’ trials in which the
would have testified that they had a “good” opinion                   jury must reach a unanimous verdict based solely upon
concerning Wilson’s character in regard to his moral and              two diametrically different versions of an event, unaided
safe conduct around children. The majority states that:               by any physical, scientific, or other corroborative
            A review of the record indicates,                         evidence.”) (emphasis added).
            then, that [Wilson]’s sole available
            defense was the testimony of his                          As such, I would hold that the exclusion of the proffered
            friends and family that such actions                      testimony, while erroneous, is non-constitutional error
            are not in keeping with his                               and, therefore, subject to Rule 44.2(b) analysis.
            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                              Harm Analysis: Non–Constitutional Error
            and character are pivotal matters in                      Non-constitutional error must be disregarded unless the
            this case. See Hammer, 296 S.W.3d                         error affects the defendant’s substantial rights. See
            at 561. Accordingly, we hold that                         TEX.R.APP. P. 44.2(b). A substantial right is affected
            the exclusion of the evidence was                         when an error has a substantial and injurious effect or
            constitutional error.2                                    influence in determining a jury’s verdict. King v. State,
                                                                      953 S.W.2d 266, 271 (Tex.Crim.App.1997); see also
I strongly disagree that Wilson’s sole available defense at           Solomon        v.   State,    49     S.W.3d     356,    365
trial was that the acts alleged were “not in keeping with             (Tex.Crim.App.2001) (stating that such error is harmless
his character.” Wilson’s defense, as illustrated by the               if, after reviewing entire record, reviewing court has “fair
record, was that K.M. was a manipulative child with                   assurance that the error did not influence the jury, or had
severe psychiatric issues who was fabricating these                   but a slight effect”). Accordingly, a criminal conviction
allegations of abuse. When the complainant testifies that             should not be overturned based upon non-constitutional
the defendant sexually assaulted him, as in this case, the            error absent “grave doubt” by the reviewing court that the
defensive theory that “sexually assaulting young boys is              result of the trial was free from the substantial effect or
not in keeping with my character” is a natural corollary to           influence of that error. See Burnett v. State, 88 S.W.3d
the theory that “the duplicitous and mentally disturbed               633, 637–38 (Tex.Crim.App.2002). “Grave doubt” means
boy is fabricating these claims of abuse”—the latter                  that “in the judge’s mind, the matter is so evenly balanced
theory is the one Wilson advanced at trial. One theory is             that he feels himself in virtual equipoise as to the
intrinsically linked with the other.                                  harmlessness of the error.” Id.

*8 The boy’s lengthy history of behavioral, legal, and                Our assessment of harm resulting from a non-
psychiatric problems were extensively explored during                 constitutional error examines the entire record and we
Wilson’s cross-examination of his father and K.M.’s                   “calculate, as much as possible, the probable impact of
doctors.3 Indeed, Wilson’s jury argument highlighted the              the error upon the rest of the evidence.” Coble v. State,
unreliability of K.M.’s testimony, and maintained, as                 330 S.W.3d 253, 280 (Tex.Crim.App.2010). To be
such, that the State had failed to carry its evidentiary              considered, among other relevant factors, is the testimony
burden. Thus, it is evident from the record that the                  or physical evidence admitted for the jury’s consideration,
proffered testimony from Wilson’s family and close-                   the nature of the evidence supporting the verdict, the
family friends regarding his character for moral and safe             character of the alleged error and how it might be
conduct around young children did not constitute the                  considered in connection with other evidence in case.
“sum total of his defense.” It is further evident that this           Barshaw      v.    State,    342     S.W.3d      91,    94
evidence would, at most, have only “incrementally”                    (Tex.Crim.App.2011).
advanced Wilson’s defensive theory of fabrication by
indirectly attacking K.M.’s credibility. See Ray v. State,            *9 Despite the majority’s protestations to the contrary, the

                                                                 20
direct and circumstantial evidence supporting the jury’s            physical abuse he was experiencing at home by Wilson.
verdict in this case is extremely strong, if not                    Specifically, K.M.’s guidance counselor testified that
overwhelmingly so. See Motilla v. State, 78 S.W.3d 352,             towards the end kindergarten and beginning of his first
357 (Tex.Crim.App.2002) (stating overwhelming                       grade year, K.M., who had previously never exhibited
evidence of guilt is one factor for court to consider when          behavioral problems in the classroom, began to get very
assessing harm resulting from non-constitutional error).            angry, very easily and was prone to emotional, violent
K.M. testified with specific and graphic detail about four          outbursts (e.g., kicking and screaming or pushing chairs).
different violent sexual assaults by Wilson, as well as             These behavioral problems escalated to the point where
various other instances of physical abuse. According to             he would run out of the classroom and onto the
K.M., Wilson became more violent with him as time went              playground and, if already on the playground, runaway
on and even began using duct tape to physically restrain            from school altogether. In October 2005, after she saw
the young boy while the abuse was occurring.4                       bruises on K.M.’s back and legs and scratches on his neck
                                                                    and ear lobes, the counselor contacted CPS. K.M., in
Perhaps more importantly, K.M.’s testimony is                       second grade at the time, testified that he had confided
corroborated by his sister, who testified that she observed         Wilson’s physical abuse to the counselor.6
Wilson physically and sexually abuse K.M. on several
occasions. Like K.M., she was able to describe the sexual           *10 The psychiatric testimony as to the improvement of
assault she witnessed with specific detail for the jury. In         K.M.’s attitude and behavior once he moved out of the
particular, K.M.’s sister testified that one day she was            home he shared with his mother and Wilson also supports
walking down the hallway of their house and noticed that            this claim; as do K.M.’s PTSD diagnosis, history of
K.M .’s bedroom door was slightly ajar. She looked in               suicidal ideations at the tender age of seven or eight,7 the
and saw K.M. lying face-down on the floor, naked,                   testimony of his father and two other treating
flailing his arms, with Wilson on his knees behind K.M.,            therapists/psychologists8 about his behavioral and
hunched over the boy’s body. She heard her brother                  interpersonal problems, and the testimony of Dr.
yelling for Wilson to get off him, and she saw Wilson               Thompson that PTSD can be a sign of sexual abuse and
pinning K.M. down by holding his arms down, while he                that sexually abused children exhibit characteristics such
moved his body back and forth on top of K.M. She                    as depression, suicidality, and interpersonal difficulties
testified that her initial failure to disclose this sexual          and often have problems dealing with authority figures.
assault was due to Wilson’s threat to kill her and her              The evidence corroborating K.M.’s and his sister’s
father if she did. She also corroborated K.M.’s testimony           testimony regarding the sexual abuse is abundant.
about Wilson’s other sexually inappropriate behavior
while living with them and their mother that at an expert           Absolutely crucial to note is that Wilson’s character is not
characterized as “grooming” (i.e., that Wilson walked               critical to the disposition of the present case because this
around the house naked, had sex with their mother in                is no simple “he said, she said” casehere, there is evidence
front of them, and that Wilson kept pornographic                    of an anal injury consistent with sexual abuse (“highly
magazines in the bathroom and on the living room coffee             suspicious for the occurrence of penetrating anal
table).                                                             trauma,”) and other corroborating testimony from K.M.’s
                                                                    father, sister, elementary school counselor, therapists, and
Both K.M. and his sister’s testimony was further                    doctors. Cf. Hammer, 296 S.W.3d at 561–62 (stating that
corroborated by Dr. Donaruma, a child abuse pediatrician,           credibility of complainant is important in sexual assault
who discovered an anal tear in the course of her 2006               trials because “[s]exual assault cases are frequently ‘he
examination of K.M. consistent with sexual abuse.                   said, she said’ trials in which the jury must reach a
Donaruma explained that such injuries are not only                  unanimous verdict based solely upon two diametrically
uncommon but consistent with repeated anal sexual                   different versions of an event, unaided by any physical,
assault over a number of years. On cross-examination, Dr.           scientific, or other corroborative evidence.”) (emphasis
Donaruma testified that although there could be multiple            added). Sexual assault cases rarely have such compelling
explanations for the oval tear that she described, given the        corroborating evidence.
“absence of a history of constipation, encopresis, or
painful defecation,” K.M.’s injury was “highly suspicious           After reviewing the entire record in this case, including
for the occurrence of penetrating anal trauma.”                     the ample evidence supporting the jury’s verdict, I have
(emphasis added).                                                   “fair assurance” that the exclusion of Wilson’s good
                                                                    character evidence “did not influence the jury, or had but
K.M.’s father and his elementary school counselor5 also             a slight effect.” After applying the proper non-
testified that K.M. began to act out at school and                  constitutional harm analysis, I would hold that the
demonstrate significant behavioral problems beginning in            erroneous exclusion of the testimony from seven of
kindergarten/first grade—when Wilson began living with              Wilson’s close family and friends was non-constitutional
the family. This evidence corroborates K.M.’s testimony             error and does not require reversal. Accordingly, I would
that he started acting out at school when he was in                 affirm the trial court’s judgment.
kindergarten and first grade as a result of the sexual and

                                                               21
Footnotes
1        See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (Vernon Supp.2014).

2        It can also rise to the level of constitutional error “when a state evidentiary rule categorically and arbitrarily prohibits the defendant
         from offering relevant evidence that is vital to his defense.” Ray v. State, 178 S.W.3d 833, 835 (Tex.Crim.App.2005). This
         circumstance is not applicable to our current analysis, however.
1        See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (West Supp.2014).

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

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.
5        The majority omits mentions of testimony from K.M.’s elementary school counselor, which corroborates K.M.’s and his father’s
         testimony.
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.




    End of Document                                                    © 2014 Thomson Reuters. No claim to original U.S. Government Works.




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