Opinion issued November 20, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-01125-CR
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GARY WAYNE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1068173
OPINION
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 imprisonment. In one issue on appeal, Appellant argues that the trial court
1
See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (Vernon Supp.
2014).
abused its discretion by excluding evidence of his good character for moral and
safe conduct around young children.
We reverse and remand for a new trial.
Background
KM’s parents separated around early 2001, when KM was almost four years
old. After the separation, KM, his older brother, his older sister, and his younger
brother lived with their mother. Some time after the separation, KM’s mother
started dating Appellant. Appellant moved in with KM and his family in 2002.
KM made the outcry of sexual abuse six months later.
KM’s father testified at trial that, early in his youth, KM had been a happy
child. He testified that this behavior started to change around the time that
Appellant moved in with KM’s family. Over time, KM has been diagnosed with
multiple psychological disorders, including attention deficit hyperactivity disorder,
bipolar disorder, and post-traumatic stress disorder. KM has been prescribed
medication for his disorders and has been admitted into psychological treatment
centers numerous times in his childhood. A doctor from one of these facilities
testified that KM suffered hallucinations, including voices telling him to hurt his
mother. By the age of 15—his age at the time of trial—KM had been charged with
multiple crimes, including assault of his sister and making a terroristic threat.
2
KM’s father acknowledged that KM had a history of being manipulative and
telling lies.
KM testified at length and in detail about the sexual assaults to which he
described Appellant subjecting him. He testified that Appellant sexually assaulted
him two to five times every month from the time Appellant moved in with the
family until October 2005, when KM was removed from the home. He described
six of those 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 pornographic magazines lying around the house.
KM testified that Appellant threatened to kill KM and his father if KM ever told
anyone about the abuse.
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 saw. She
also witnessed Appellant physically assault KM on multiple occasions.
After he made his outcry about sexual assault, KM was given a physical
examination. Dr. M. Donaruma testified for the State about the results of the
examination. She testified that KM’s physical examination was “an abnormal anal
exam” with the discovery of “a healing tear around his anal opening” that “would
3
be consistent with a 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.
Dr. L. Thompson, the director of therapy and psychological services at the
Harris County Children’s Assessment Center, testified as the State’s expert about
certain psychological characteristics that were prevalent in victims of sexual abuse.
These characteristics included sleep difficulties, appetite difficulties, anxiety
disorders, and interpersonal difficulties. The record established that KM suffered
from a number of the characteristics described by Dr. Thompson. Nevertheless,
Dr. Thompson was careful to explain that “although there might be a higher
incidence of [a] certain problem in people who have been [sexually] abused, there
may be more than one thing that could cause that particular problem.”
For his case-in-chief, Appellant sought to present nine witnesses to testify
about Appellant’s character regarding moral and safe conduct around children.
These witnesses were two of Appellant’s daughters, his son, his brother, a friend, a
nephew-in-law, his current girlfriend, his girlfriend’s mother, and a niece. The
State objected that the testimony was improper bolstering and was not relevant.
The trial court sustained the objections and denied the request to allow the people
to testify.
4
Appellant presented the testimony of the nine witnesses in an offer of proof.
All nine people testified that they had seen Appellant around young children on
many occasions, that they had “an opinion regarding [Appellant’s] character
regarding moral and safe conduct around children,” and that their opinion of
Appellant’s character was “good.”
Exclusion of Evidence
In his sole issue, Appellant argues that the trial court abused its discretion by
excluding evidence of his good character for moral and safe conduct around young
children.
A. Preservation
As an initial matter, the State argues that Appellant failed to preserve this
issue for appellate review. As the State correctly points out, the Texas Rules of
Appellate Procedure require,
(a) In General. As a prerequisite to presenting a complaint for
appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely
request, objection, or motion that:
(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
apparent from the context . . . .
5
TEX. R. APP. P. 33.1(a)(1)(A) (emphasis added). The State argues that, because
Appellant failed to present the trial court with relevant case law supporting his
position that the testimony he sought to have admitted was admissible after the trial
court asked him if he had such case law, Appellant failed to preserve the issue for
appellate review.
The State misconceives what constitutes “the complaint” as provided in rule
33.1. A stated intent to present evidence is not a “complaint.” Appellant informed
the trial court he would present the testimony of people concerning his “character
regarding moral and safe conduct around children.” It was the State that objected
to this evidence, arguing that it constituted improper bolstering and was not
relevant. These objections are “the complaint[s] made to the trial court by a timely
request, objection, or motion.” Id. The trial court sustained those objections, and
the Appellant now “present[s] those complaint[s] for appellate review.” Id.
The State’s reliance on rule 103 of the Texas Rules of Evidence is similarly
misplaced. Rule 103 provides,
(a) Effect of Erroneous Ruling. Error may not be predicated upon
a ruling which admits or excludes evidence unless a substantial
right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record,
stating the specific ground of objection, if the specific
ground was not apparent from the context. . . .
6
(2) Offer of proof. In case the ruling is one excluding
evidence, the substance of the evidence was made known
to the court by offer, or was apparent from the context
within which questions were asked.
TEX. R. EVID. 103 (emphasis added).
The State argues that Appellant failed to satisfy the requirements of rule
103(a)(1). By its plain language, however, it is apparent that rule 103(a)(1) only
applies to evidence that was admitted. TEX. R. EVID. 103(a)(1). Appellant’s
evidence was excluded. Accordingly, rule 103(a)(1) does not apply. Instead, for
excluded evidence, rule 103(a)(2) applies, requiring Appellant to make an offer of
proof, informing the court of the substance of the excluded evidence. TEX. R.
EVID. 103(a)(2). Appellant made just such an offer of proof.
We hold the issue has been preserved for review.
B. Error
Next, we consider whether the trial court abused its discretion by excluding
the requested evidence. We review a trial court’s decision to admit or exclude
evidence under an abuse of discretion standard. Shuffield v. State, 189 S.W.3d
782, 793 (Tex. Crim. App. 2006). We will not reverse a trial court’s ruling unless
that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71
S.W.3d 758, 760 (Tex. Crim. App. 2002).
Generally, “[e]vidence of a person’s character or character trait is not
admissible for the purpose of proving action in conformity therewith on a
7
particular occasion.” TEX. R. EVID. 404(a). “However, an accused in a criminal
case is permitted to introduce evidence of a specific good-character trait to show
that it is improbable that he committed the charged offense, when that character
trait is relevant to the offense.” Melgar v. State, 236 S.W.3d 302, 306–07 (Tex.
App.—Houston [1st Dist.] 2007, pet. ref’d) (citing TEX. R. EVID. 404(a)(1)(A)).
Appellant asked the trial court to allow nine people to testify about
Appellant’s character. During the offer of proof, all nine people testified that they
had seen Appellant around young children on many occasions, that they had “an
opinion regarding [Appellant’s] character regarding moral and safe conduct around
children,” and that their opinion of Appellant’s character was “good.” The State
objected that the testimony was improper bolstering. The trial court denied the
request to allow the people to testify as identified. On appeal, Appellant
acknowledges that two of the people presented to testify did not know Appellant
during the time period in question and, accordingly, their opinion about
Appellant’s character regarding conduct around children would not be relevant.
Appellant argues, however, that the remaining seven people should have been
allowed to testify.
A defendant charged with aggravated sexual assault is “entitled to proffer
evidence of his good character (or propensity) for moral and safe relations with
small children or young [boys].” Wheeler v. State, 67 S.W.3d 879, 882 (Tex.
8
Crim. App. 2002) (citing TEX. R. EVID. 404(a)(1)(A)). Excluding such evidence is
an abuse of discretion. See Thomas v. State, 669 S.W.2d 420, 423–44 (Tex.
App.—Houston [1st Dist.] 1984, pet. ref’d) (reversing judgment based on
exclusion of good-character evidence).
Appellant was charged with aggravated sexual assault of KM. The seven
witnesses in question were prepared to testify that Appellant had a good character
regarding moral and safe conduct around children. This is permissible under rule
404 and directly relevant to offense with which he had been charged.
We hold the trial court abused its discretion by excluding this evidence.
C. Type of Error
Having determined that the trial court’s ruling was error, we must consider
whether the error was harmful. See TEX. R. APP. P. 44.2. Different types of error,
however, have different standards of review for harm. See id. So we must
determine what kind of error was committed.
In general, errors in criminal cases are divided between constitutional errors
and non-constitutional errors. See id. 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.” TEX. R. APP. P. 44.2(a). For non-constitutional errors,
9
any error “must be disregarded” unless the error affects Appellant’s substantial
rights. TEX. R. APP. P. 44.2(b).
“Generally, the erroneous admission or exclusion of evidence is
nonconstitutional error . . . .” Melgar, 236 S.W.3d at 308. Erroneous exclusion of
evidence can rise to the level of constitutional error, however, when the excluded
evidence “forms such a vital portion of the case that exclusion effectively
precludes the defendant from presenting a defense.” Potier v. State, 68 S.W.3d
657, 665 (Tex. Crim. App. 2002).2 “Trials involving sexual assault may raise
particularly evidentiary and constitutional concerns because the credibility of both
the complainant and defendant is a central, often dispositive issue.” Hammer v.
State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). While excluding testimony
that would “incrementally” further the defendant’s defensive theory is not
constitutional error, excluding evidence that “goes to the heart of the defense” is.
See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005) (holding
erroneously excluding testimony that incrementally furthers defense is non-
constitutional error); Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002)
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.
10
(holding erroneously excluding testimony that “goes to the heart of the defense” is
constitutional error).
Appellant argues that the testimony of his family and friends concerning his
character was his only defense and that, accordingly, its exclusion amounts to
constitutional error. We must agree.
Appellant presented one witness during the guilt-innocence phase of the
trial. He presented his biological daughter, who testified that she and Appellant’s
biological son lived with Appellant off-and-on during the time in question. No
further testimony was presented. While Appellant cross-examined many of the
State’s witnesses, no identifiable defensive theory was developed in the course of
the cross-examination. Appellant’s closing argument consisted solely of urging the
jury to consider that the State had not carried its evidentiary burden. Appellant’s
counsel even implored the jury to consider the difficulty of how Appellant could
“defend [himself] against that kind of allegation.”
A review of the record indicates, then, that Appellant’s sole available
defense was the testimony of his friends and family that such actions are not in
keeping with his 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, Appellant’s credibility and character are pivotal matters in this case.
11
See Hammer, 296 S.W.3d at 561. Accordingly, we hold that the exclusion of the
evidence was constitutional error.
D. Harm
When an error is determined to be constitutional error, “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.” TEX. R. APP. P. 44.2(a). The mere fact that there is other evidence
that could support conviction does not establish that the error is harmless.
McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). Instead, “[i]f there
is a reasonable likelihood that the error materially affected the jury’s deliberations,
then the error is not harmless beyond a reasonable doubt. The reviewing court
should calculate, as nearly as possible, the probable impact of the error on the jury
in light of the other evidence.” Id.
As we have noted, trials concerning allegations of sexual assault depend
heavily on credibility determinations between two competing claims of what
happened. See Hammer, 296 S.W.3d 561–62. This case is no different. It is well
acknowledged, however, that a court of appeals reviewing a cold record is ill suited
to make determinations of credibility much less to weigh them. See Lancon v.
State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). “The jury is in the best
position to judge the credibility of a witness because it is present to hear the
12
testimony, as opposed to an appellate court who relies on the cold record.” Id. As
a result, we must “afford almost complete deference to a jury’s” determination of
credibility, and “the jury is the sole judge of what weight to give such testimony.”
Id.
KM testified at length and in detail about the sexual assaults to which he
described Appellant subjecting him. The record also established, however, that
KM had a history of lying and of being manipulative. He has been diagnosed with
attention deficit hyperactivity disorder, bipolar disorder, and post-traumatic stress
disorder. The record established that he suffered hallucinations, including voices
telling him to hurt his mother.
KM’s sister testified that she saw Appellant rape KM on one occasion. But
we cannot exclude the possibility that she 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.
Other than the testimony of KM and his sister, there is little evidence in the
record identifying Appellant as the perpetrator of the sexual assaults with which he
was charged. There was testimony from other witnesses concerning KM’s outcry,
but the veracity of those outcry statements ultimately return to determinations of
KM’s credibility.
13
Dr. Donaruma testified that KM’s physical examination 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 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.
Even if we determined that a jury would conclude that the evidence was indicative
of a sexual assault, however, this evidence would not compel the conclusion that
Appellant committed the assault.
Similarly, Dr. Thompson testified about certain psychological characteristics
that were prevalent in victims of sexual abuse. These characteristics included sleep
difficulties, appetite difficulties, anxiety disorders, and interpersonal difficulties.
The record established that KM suffered from a number of the characteristics
described by Dr. Thompson. Nevertheless, Dr. Thompson was careful to explain
that “although there might be a higher incidence of [a] certain problem in people
who have been [sexually] abused, there may be more than one thing that could
cause that particular problem.”
We endeavor to emphasize that we do not assert that KM’s testimony—or
the testimony of any witness presented by the State—was motivated by anything
other than a sincere desire to describe the events as they actually happened.
14
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.
Instead, our concern lies with our very inability to make such determinations
concerning any of the testifying witnesses in the presence of a cold record.
Credibility determinations are wisely entrusted to the trier of fact for this very
reason. None of the evidence directly identifying Appellant as the perpetrator of
sexual assault was free from the need of credibility determinations.
Just as we cannot assess matters concerning the credibility of the State’s
witnesses presented at trial, we likewise cannot assess how the jury would have
assessed the credibility of the seven witnesses offered by the defense to testify on
Appellant’s good character regarding moral and safe conduct around children. A
jury swayed by the credibility of these seven witnesses and with questions on the
credibility of the State’s witnesses certainly could be materially affected in their
deliberations. See McCarthy, 65 S.W.3d at 55 (holding error is not harmless
beyond a reasonable doubt if there is reasonable likelihood that error materially
affected jury’s deliberations). Because we cannot make this determination, we are
required to reverse and remand for a new trial.
We sustain Appellant’s sole issue.
15
Conclusion
We reverse and remand for a new trial.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Justice Sharp, dissenting from the judgment.
Publish. TEX. R. APP. P. 47.2(b).
16