                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00376-CR

SAMUEL UKWUACHU,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2014-1202-C2


                           MEMORANDUM OPINION


       Samuel Ukwuachu appeals from a conviction for the offense of sexual assault.

TEX. PENAL CODE ANN. § 22.011 (West 2011). In six issues, Ukwuachu complains that the

trial court erred by allowing the State to reference the cell phone records of his roommate

during its cross-examination of his roommate and his roommate's friend, that the

indictment was defective, that evidence of an extraneous offense was improperly

admitted, that his due process rights were violated due to an abuse of the grand jury

process by the State, and that text messages between the victim and a friend of hers the
night of the alleged offense were improperly excluded pursuant to Rule 412 of the Rules

of Evidence. Because we find that the trial court erred by disallowing the admission of

evidence pursuant to Rule of Evidence 412, we reverse the judgment of conviction and

remand this proceeding for a new trial. Because the issue regarding the sufficiency of the

indictment would result in greater relief for Ukwuachu, we will address that issue first.

INDICTMENT

       In his third issue, Ukwuachu complains that the indictment against him is facially

insufficient for failing to allege the manner and means in which the lack of consent was

obtained. Ukwuachu did not file a motion to quash the indictment prior to trial.

       "The sufficiency of an indictment is a question of law." State v. Moff, 154 S.W.3d

599, 601 (Tex. Crim. App. 2004). "[T]o comprise an [information] within the definition

provided by the constitution, an instrument must charge: (1) a person; (2) with the

commission of an offense." Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995). "[A]

written instrument is an indictment or information under the Constitution if it accuses

someone of a crime with enough clarity and specificity to identify the penal statute under

which the State intends to prosecute, even if the instrument is otherwise defective."

Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997). If the State fails to allege

an element of an offense in an indictment or information then this failure is a defect in

substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). The accused must

object to substance defects before trial begins; otherwise the accused forfeits his right to


Ukwuachu v. State                                                                     Page 2
raise the objection on appeal or by collateral attack. TEX. CODE CRIM. PROC. ANN. art.

1.14(b) ("If the defendant does not object to a defect, error, or irregularity of form or

substance in an indictment or information before the date on which the trial on the merits

commences, he waives and forfeits the right to object to the defect, error, or irregularity

and he may not raise the objection on appeal or in any other postconviction proceeding.");

Duron, 956 S.W.2d at 550-51. Because Ukwuachu did not file a motion to quash the

indictment in this proceeding, this complaint has been waived. We overrule issue three.

TEXT MESSAGES

        In his sixth issue, Ukwuachu complains that the trial court erred by failing to admit

a series of text messages between the victim and a friend of hers made immediately prior

to the offense.1 The trial court did admit a series of messages between the victim and that

same friend that took place very shortly after the offense. Ukwuachu sought to have the

entire series of messages admitted into evidence in order to support his defense that the

victim consented to sexual intercourse. The State requested that the trial court conduct a

hearing pursuant to Rule 412 of the Rules of Evidence to determine the admissibility of

the messages. The trial court conducted an in camera hearing at which only the parties

and their attorneys were present. The trial court found that the messages prior to the

offense were not admissible pursuant to Rule 412. The trial court also found that there




1Because this is a memorandum opinion and the parties are familiar with the facts, we will not discuss the
facts except as necessary to understand this opinion. TEX. R. APP. P. 47.3.

Ukwuachu v. State                                                                                  Page 3
was enough of a break in between the messages that they did not constitute one

conversation pursuant to Rule 107 of the Rules of Evidence (Rule of Optional

Completeness).

       Rule of Evidence 412 applies in prosecutions for sexual assault, aggravated sexual

assault, or for attempts to commit sexual assault or aggravated sexual assault. Rule 412(a)

absolutely prohibits opinion or reputation evidence of the past sexual behavior of an

alleged victim in these prosecutions. Under Rule 412(b), however, evidence of specific

instances of past sexual behavior may be admitted when three conditions are met. First,

the procedural requirements of paragraph (c) and (d) concerning the in camera hearing

and the sealing of the record must be satisfied. Second, the proponent of the evidence

must establish that the evidence of specific instances of the victim's sexual behavior fall

into one of the five categories set forth in Rule 412(b)(2). Third, under Rule 412(b)(3), the

probative value of the offered evidence must outweigh the danger of unfair prejudice.

Even if the evidence falls within the enumerated categories of Rule 412(b)(2), the court

must further find that its probative value outweighs the danger of unfair prejudice. See

Holloway v. State, 751 S.W.2d 866, 869-70 (Tex. Crim. App. 1988). Simply put, if the

evidence falls within any of the exceptions itemized in Rule 412(b)(2) and its probative

value outweighs the danger of unfair prejudice, it is admissible. See Boyle v. State, 820

S.W.2d 122, 148-49 (Tex. Crim. App. 1989).




Ukwuachu v. State                                                                      Page 4
        In this case, the text messages were made immediately prior to the offense and

appeared to potentially relate to prior occasions where the victim and Ukwuachu had

engaged in some type of sexual conduct. We find that the messages in question would

fall within the exception listed in Rule 412(2)(B) because the evidence "concerns past

sexual behavior with the defendant and is offered by the defendant to prove consent."

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

        The inquiry does not end there, however. The evidence must also be shown to be

admissible pursuant to the balancing test required by Rule 412(b)(3). The function of the

balancing test of Rule 412(b)(3), where the trial court balances the probative value against

the danger of unfair prejudice, is generally consistent with that under Rule 403, although

the tests do differ. TEX. R. EVID. 403. Under Rule 403, the opponent of the admission of

the evidence bears the burden of showing that the danger of unfair prejudice

substantially outweighs the probative value of the evidence. Under Rule 412(b)(3) the

burden falls on the proponent of the evidence, in this case, Ukwuachu, to show that the

probative value of the evidence outweighs the unfair prejudice. The general balancing

test under Rule 403 weighs in favor of the admissibility of evidence, while Rule 412(b)(3)

weighs against the admissibility of evidence. See Boyle, 820 S.W.2d at 148 n.9.




2Because we recognize that we are not the final authority to determine the admissibility of this evidence,
we have intentionally avoided a detailed discussion or recitation of the content of the text messages.

Ukwuachu v. State                                                                                  Page 5
       It is not apparent from the record whether the trial court actually performed the

balancing test required by Rule 412(b)(3). However, our review of the messages in

question demonstrates that the probative value of the messages outweighed any unfair

prejudice. The messages were probative on the issue of consent and were not particularly

graphic nor did they paint the victim in a negative light. We find that Ukwuachu met his

burden to demonstrate that the probative value outweighed the danger of unfair

prejudice, and the trial court abused its discretion in finding otherwise.

RULE OF OPTIONAL COMPLETENESS

       Rule of Evidence 107 states that "[i]f a party introduces part of an act, declaration,

conversation, writing, or recorded statement, an adverse party may inquire into any other

part on the same subject." The text messages in question started when the victim was

letting her friend know that she and Ukwuachu were not coming to a Homecoming party

and continued during the time the victim was in Ukwuachu's apartment. There was a

short break in the messages during the time that the victim stated that the offense

occurred and resumed almost immediately thereafter, resulting in the message that the

State introduced during the victim's testimony where she texted her friend that

Ukwuachu had "basically raped [her]." We find that the text messages were part of an

ongoing conversation and that after the State sought to introduce one of the messages,

the Rule of Optional Completeness allowed Ukwuachu to inquire into any other part of




Ukwuachu v. State                                                                      Page 6
the same subject, which are the messages in question. The trial court's determination that

Rule 107 did not apply was an abuse of discretion and therefore, erroneous.

HARM

       Having found that the trial court erred by excluding the messages in question

pursuant to either Rule 107 or Rule 412, we must determine whether this error was

harmful. The erroneous exclusion of a defendant's evidence generally constitutes non-

constitutional error unless the excluded "evidence forms such a vital portion of the case

that exclusion effectively precludes the defendant from presenting a defense." Potier v.

State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). Here, the evidence excluded did not

prevent Ukwuachu "from presenting the substance of his defense to the jury." See id. at

666. We therefore apply the harmless error standard of Rule 44.2(b) of the Texas Rules of

Appellate Procedure. See id. at 662.

       Rule 44.2(b) provides that any non-constitutional error which does not affect

substantial rights must be disregarded. See TEX. R. APP. P. 44.2(b). Substantial rights are

not affected by the erroneous exclusion of evidence "if the appellate court, after

examining the record as a whole, has fair assurance that the error did not influence the

jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

       In assessing the likelihood that the jury's decision was adversely affected by the

error, we consider everything in the record, including any testimony or physical evidence

admitted for the jury's consideration, the nature of the evidence supporting the verdict,


Ukwuachu v. State                                                                        Page 7
and the character of the alleged error and how it might be considered in connection with

other evidence in the case. Motilla, 78 S.W.3d at 355. Neither party has the burden to

prove harm from an error. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). It is

the duty of the reviewing court to assess harm from the context of the error. Id.

       We have reviewed and considered everything in the record using the appropriate

standards. We find that because consent was the central issue in the proceeding, we

cannot say that we have a fair assurance that the erroneous exclusion of the text messages

did not affect the outcome of this proceeding, especially when considered with the other

alleged errors in the trial of this cause. We sustain issue six.

CONCLUSION

       Having found that the exclusion of the text messages was erroneous and their

exclusion harmed Ukwuachu, we reverse the judgment of conviction and remand this

proceeding for a new trial. Because we have found this error to constitute reversible

error, we do not reach issues one, two, four, or five. TEX. R. APP. P. 47.1.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed March 22, 2017
Do not publish
[CR25]
Ukwuachu v. State                                                                   Page 8
