                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-13-00313-CR

HOWARD HARRIS, JR.,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 12-02272-CRF-85


                          MEMORANDUM OPINION


      A jury found Appellant Howard Harris, Jr. guilty on two counts of aggravated

sexual assault of a child. Because the jury found as true the enhancement paragraph

alleging a prior conviction of aggravated sexual assault of a child, Harris received an

automatic life sentence on each count. See TEX. PENAL CODE ANN. § 12.42(c)(2), (g)(1).

Asserting two issues, Harris appeals. We will affirm.
        We begin with Harris’s second issue, which asserts that the evidence is

insufficient. The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        In August of 2011, M., the victim, was age 15, and she made an outcry of sexual

abuse by Harris, her uncle, that allegedly occurred approximately three years before her

outcry. At the time of trial, M. was age 17. She said that when she was around age 12,

she spent a lot of time with her younger cousin K.H. and Harris.

        M. testified that the first incident happened at the time of a large family

gathering at another uncle’s house with several other children, aunts, and uncles in the

summer of 2008. She said that, at the time of the incident, she was alone in the living

room and asleep on the couch. The other children were in the bedroom, and the adults

were outside. Harris came inside, woke her up, and told her that when he returned, he

wanted her to be naked. Harris went outside but soon came back in and locked the

door. He asked M. why she was not naked, and when she did not respond, he took her

Harris v. State                                                                             Page 2
near the kitchen, pulled her pants down, and began to have intercourse with her. It was

not long before someone knocked on the door, and Harris then ran to the bathroom. M.

unlocked the door and one of her aunts was there. M. then returned to the couch, and

she was too scared to tell her aunt what had just happened.

        M. said that, on another occasion that summer, she and her cousin K.H. went to

the apartment of Meca, Harris’s girlfriend, to do laundry. M. and K.H. were in Meca’s

bedroom watching television. Later that night, when the power went out, Harris got in

bed between M. and K.H., and after K.H. went to sleep, Harris woke up M. and told her

to come to the living room with him. M. said that she followed him and sat on the

couch. Harris then told her not to tell anyone about their relationship because it would

hurt his relationship with his brother, M.’s father. M. testified that Harris then pulled

down his pants and asked her to perform oral sex, which M. did and then returned to

the bedroom. Harris told her that he would kill her if she ever told anyone.

        M.’s mother testified that in 2011, she took M. to the doctor for her annual

checkup. After her checkup, M. started crying and told her mother that Harris had

“messed” with her. M.’s mother then contacted the police. Detective Chris Loup of the

Bryan Police Department was assigned the case, and he arranged for M. to be

interviewed at the child advocacy center.

        Harris argues that the evidence is insufficient because there was no physical

evidence and because M.’s trial testimony differed in some respects from what she had

said in her interview at the child advocacy center. Harris asserts that M. testified that

when Harris first approached her, she was on the couch, but in the interview she said

Harris v. State                                                                    Page 3
that they were in the bathroom. At trial, she said that Harris made a second advance at

her on the first occasion after her aunt had left, but she did not mention that in the

interview. And lastly, he asserts that in the interview, M. said that her grandmother

picked her up from Meca’s apartment the next day, but at trial she said that her aunt

picked her up.

        An aggravated sexual assault conviction may rest solely on the testimony of a

child victim. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014) (requirement

that victim inform another person within one year does not apply to person under 17 at

time of offense); see Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Abbott v.

State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet ref’d). Moreover, the jury is the

exclusive judge of the facts, the credibility of the witnesses, and the weight to be given

to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston

[1st Dist.] 2003, pet. ref’d). As the reviewing court, we “should not substantially intrude

upon the jury’s role as the sole judge of the weight and credibility of witness

testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The jury can

choose to believe all, some, or none of the testimony presented by the parties. Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). By finding Harris guilty, the jury

obviously believed the victim’s testimony. Viewing all the evidence in the light most

favorable to the verdict, we conclude that a rational trier of fact could have found that

Harris committed the offenses of aggravated sexual assault of a child beyond a

reasonable doubt. We overrule the second issue.



Harris v. State                                                                       Page 4
        In his first issue, Harris contends that the trial court abused its discretion by

excluding evidence that M. was diagnosed with a sexually transmitted disease and

made her outcry immediately after the diagnosis and that there were discrepancies

about M.’s history of sexual partners. Harris asserts that, from M.’s medical records,

before M.’s chlamydia diagnosis, she told the nurse practitioner that she had had one

sexual partner in the last six months, that she had had three total partners, and that she

had never had sex with anyone who had ever been in prison or jail. Harris claims that

after the chlamydia diagnosis a week later, M. made her outcry and also changed her

story in her interview at the child advocacy center, saying there that she had had only

two partners and that one was Harris, who had previously been in prison.

        Harris contends that this evidence was admissible under Rule of Evidence

412(b)(2)(C), which provides:

        (b) Evidence of Specific Instances. In a prosecution for sexual assault or
        aggravated sexual assault, or attempt to commit sexual assault or
        aggravated sexual assault, evidence of specific instances of an alleged
        victim’s past sexual behavior is also not admissible, unless:

        ….

               (2) it is evidence: … (C) that relates to the motive or bias of the
        alleged victim; …

TEX. R. EVID. 412(b)(2)(C).

        Harris’s theory is that, because M. did not want her mother and family to know

that she had had a recent sexual partner, M. had a motive to place blame on Harris for

her chlamydia diagnosis. According to Harris, M. allegedly knew that Harris had a




Harris v. State                                                                      Page 5
sexually transmitted disease,1 and to protect herself from punishment for her sexual

activity and chlamydia diagnosis, M. fabricated her allegations against him.

        We review a trial court’s ruling on the admissibility of evidence for abuse of

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an

abuse of discretion standard, an appellate court should not disturb the trial court’s

decision if the ruling was within the zone of reasonable disagreement.” Bigon v. State,

252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

        First, we agree with the State that M.’s alleged inconsistent statements about the

number of her sexual partners is not evidence of “specific instances” of sexual behavior

that would implicate Rule 412. Moreover, M. did not testify about her sexual history, so

the prior alleged inconsistent statements would not even be admissible under Rule 613.

The trial court therefore did not abuse its discretion in excluding evidence of M.’s

alleged inconsistent statements about the number of her sexual partners.

        Second, regarding the exclusion of evidence of M.’s chlamydia diagnosis that she

received just before making her outcry, we will assume without deciding that evidence

of M.’s chlamydia diagnosis could be evidence of a specific instance of her past sexual

behavior.2

        Rule 412 creates “an extremely high hurdle” for the admissibility of evidence of

specific instances of an alleged victim’s past sexual behavior. Todd v. State, 242 S.W.3d

126, 129 (Tex. App.—Texarkana 2007, pet. ref’d). In addition to meeting the rule’s

1
  In arguing for admissibility, Harris asserted to the trial court that he was diagnosed with herpes in 2007
and that “everyone” in the family knew that he had a sexually transmitted disease.
2
  Harris did not introduce or proffer evidence that chlamydia is transmitted only sexually, nor did he
introduce or proffer evidence that he did not have chlamydia at the time of the alleged assaults.

Harris v. State                                                                                      Page 6
requirements, the proposed evidence must demonstrate a “definite and logical link”

between the victim’s past sexual behavior and the alleged motive or bias.            See id.;

Stephens v. State, 978 S.W.2d 728, 734-35 (Tex. App.—Austin 1998, pet. ref’d).

        In this case, we agree with the State’s argument that Harris’s theory for the

admissibility of M.’s chlamydia diagnosis is merely speculative.       First, other than his

attorney’s argument to the trial court during the offer of proof, there is no record

evidence that M. knew that Harris had a sexually transmitted disease such that she

could place blame on him for her chlamydia diagnosis three years after he allegedly

sexually assaulted her.

        Next, there is no evidence that M. was seeking to hide her sexual activity from

her parents and family, no evidence that M.’s parents were unaware that she was

sexually active, and no evidence that her parents would punish her for being sexually

active and contracting chlamydia. Finally, and perhaps most importantly, there is no

evidence that M. blamed Harris for her contraction of chlamydia. Harris’s theory that

M. fabricated her sexual assault allegations against him to explain her contraction of

chlamydia is merely speculative; there is no evidence to support it, much less a “definite

and logical link” to support its admissibility. See Stephens, 978 S.W.2d at 734-35; Cooper

v. State, 959 S.W.2d 682, 684 (Tex. App.—Austin 1997, pet. ref’d); see also Nevelow v. State,

No. 14-10-00332-CR, 2011 WL 2899377, at *6 & n.4 (Tex. App.—Houston [14th Dist.] July

21, 2011, pet. ref’d) (mem. op., not designated for publication). The trial court did not

abuse its discretion in excluding the evidence of M.’s chlamydia diagnosis. We overrule

issue one.

Harris v. State                                                                        Page 7
        The trial court’s judgment is affirmed.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 11, 2014
Do not publish
[CRPM]




Harris v. State                                                  Page 8
