Wilson, Gary Wayne

Opinion

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).

3

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

4

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).

5

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

6

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

7

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

8

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

9

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.

10

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

11

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

12

APPENDIX A

13

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.,

14

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

15

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.

16

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:

17

(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

18

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,

19

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.

20

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 nonpsychiatric 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

21

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 nontestified 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

22

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.