Wilson, Gary Wayne ( 2014 )

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.
22