Wilson, Gary Wayne ( 2014 )


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  •            PD-1662-14
    No. ______________                     December 29, 2014
    In the
    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
    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
    TABLE OF CONTENTS
    INDEX OF AUTHORITIES .................................................................................................... ii
    STATEMENT REGARDING ORAL ARGUMENT .......................................................... 1
    REASONS FOR REVIEW ........................................................................................................ 1
    STATEMENT OF THE CASE ................................................................................................. 1
    STATEMENT OF THE PROCEDURAL HISTORY ......................................................... 1
    STATEMENT OF FACTS ....................................................................................................... 2
    FIRST GROUND FOR REVIEW.......................................................................................... 3
    The First Court of Appeals erred by utilizing the constitutional
    harm standard when evaluating an evidentiary ruling.
    SECOND GROUND FOR REVIEW .................................................................................... 6
    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
    i
    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(c) ................................................................................................................ 1
    ii
    TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to TEX. R. APP. P. 68.4(c), the State requests oral argument.
    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).
    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
    2
    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
    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
    3
    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).
    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
    4
    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
    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
    5
    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
    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.
    6
    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
    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
    7
    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
    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
    8
    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 9160 words, based upon the representation provided by the word processing
    program that was used to create the document.
    /s/   Jessica Akins
    Date: 12/21/2014
    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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