Jesus Tranquilino Cortez, Jr. A/K/A Jesus Cortez, Jr. v. State

NUMBER 13-06-626-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JUAN CARLOS LOPEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court of Nueces County, Texas.

OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides
Opinion by Justice Yañez

Appellant, Juan Carlos Lopez, was indicted on two counts of aggravated sexual

assault of a child.1 The jury found Lopez guilty on both counts, and imposed a punishment

of life imprisonment and a $10,000 fine for each count. Lopez now appeals his judgment

of conviction, arguing through five issues that reversible error occurred at trial. Because

1
T EX . P EN AL C OD E A N N . § 22.021 (Vernon Supp. 2008).
we find that trial court error affected Lopez’s substantial rights, we reverse and remand for

a new trial.

I. BACKGROUND

The State’s factual theory of this case at trial was as follows. In the afternoon of

June 21, 2004, Lopez was driving in Corpus Christi when he came across the complainant

in this case (hereinafter fictitiously referred to as “John”). John, a sixteen-year-old boy, was

sitting at a bus stop by himself when Lopez approached in his vehicle. Despite not

knowing Lopez, John entered Lopez’s vehicle. Lopez gave John a ride to a residence

belonging to one of John’s friends. He also gave John his cell phone number and invited

John to “party” with him that night.

Later that day, John called Lopez to discuss hanging out. Lopez then met John

outside the friend’s residence, and the two drove to Lopez’s apartment. While at the

apartment, Lopez and John drank liquor, smoked marihuana, talked, and watched

television. At some point, John’s eyes began burning and he fell asleep. He briefly awoke

to see Lopez “sucking [his] penis.” John fell asleep and then briefly awoke again, at which

point he found himself being sodomized by Lopez. John did not have the strength to move

during this time. When John fully awoke in the morning, he observed that (1) he was only

wearing his boxers and shirt, but not his pants; (2) there appeared to be fecal stains on his

shirt and the inside of his boxers; (3) his anus was sore; and (4) he felt “sperm” around his

anus. John asked Lopez what happened, and Lopez only responded that John had gotten

“fucked up.” On September 1, 2004, John made an outcry regarding the June 21 incident.

The outcry led to an investigation that resulted in Lopez’s indictment and trial.

Lopez’s theory of the case was as follows. Lopez stopped near John at the bus stop

2
because he mistook John for someone he knew. Lopez quickly realized his mistake, but

he and John nevertheless began conversing. John asked Lopez for a ride, and Lopez

obliged. Prior to exiting Lopez’s vehicle, John asked for and received Lopez’s phone

number. John wanted the number because he wanted to hang out with Lopez later that

day. John later called Lopez about hanging out. Lopez then picked John up and took him

to his apartment, where they talked and watched television. At John’s urging, the two also

drank alcohol and smoked marihuana provided by Lopez, who was not aware of John’s

age. At some point, Lopez went to his bedroom to go to sleep, leaving John in the living

room to sleep on a couch. No sexual contact occurred between them. When Lopez

awoke in the morning, he saw John sitting on the couch, waiting for Lopez to awake so he

could be driven to his sister’s residence. Lopez did not see any stains on John’s clothing.

He drove John to his sister’s residence, and the two did not speak to each other again.

At trial, the State sought to convict Lopez on two counts of aggravated sexual

assault. According to the State, the two sexual assaults occurred when Lopez caused

John’s sexual organ to contact or penetrate Lopez’s mouth,2 and when Lopez caused the

penetration of John’s anus.3 At the time of the assaults, Lopez had the human

immunodeficiency virus (HIV), the virus which causes acquired immune deficiency

syndrome (AIDS). Furthermore, the State’s theory of the case was that both sexual

assaults occurred without the use of a condom, which allowed John to come into contact

with Lopez’s bodily fluid. The State thus alleged the aggravating element of the assaults

2
Id. at § 22.021(a)(1)(B)(iii).

3
Id. at § 22.021(a)(1)(B)(i).

3
to be the intentional and knowing use or exhibition of a deadly weapon in the course of the

assaults4—namely, Lopez’s bodily fluids, which in the manner of their use were capable

of causing death and serious bodily injury.5 Lopez was ultimately convicted on both counts

of aggravated sexual assault.

II. EXPERT TESTIMONY ON JOHN ’S TRUTHFULNESS & CREDIBILITY

In his first issue, Lopez argues that the trial court erred (1) when it permitted Texas

Ranger Roberto Garza, an investigator, to express his opinion on John’s truthfulness, and

(2) when it permitted Dr. Sam Hill III, a clinical psychologist, to express an opinion as to the

truthfulness of the class of persons to which John belonged.

A. Garza’s Testimony

Garza led the investigation into John’s allegations against Lopez. On direct

examination, the State asked Garza: “From your experience investigating these types of

cases involving teenage boys, do teenage boys want to talk about being anally raped?”

Lopez’s counsel objected to the question, arguing that Garza was not qualified to answer.

The trial court sustained the objection and directed the State to “create a predicate.” The

State then asked Garza a number of questions relating to his experience in investigating

child sexual assaults, which ultimately led to the following verbal exchange:

4
Id. at § 22.021(a)(2)(A)(iv).

5
See generally Mathonican v. State, 194 S.W .3d 59, 69-71 (Tex. App.–Texarkana 2006, no pet.)
(finding defendant’s HIV-positive sem inal fluid was capable of causing death or serious bodily injury); Degrate
v. State, No. 05-04-00218-CR, 2005 Tex. App. LEXIS 547, at *4-8 (Tex. App.–Dallas Jan. 26, 2005, no pet.)
(m em . op., not designated for publication) (finding legally and factually sufficient evidence that the m outh of
an HIV-positive defendant was a deadly weapon when defendant bit the com plainant); Najera v. State, 955
S.W .2d 698, 700-01 (Tex. App.–Austin 1997, no pet.) (finding legally and factually sufficient evidence that
defendant’s penis and sem inal fluids were capable of causing death); W eeks v. State, 834 S.W .2d 559, 561-
65 (Tex. App.–Eastland 1992, pet. ref’d) (finding evidence was sufficient to sustain HIV-positive defendant’s
attem pted m urder conviction for spitting at com plainant).

4
 Q [THE STATE]. In this particular case, did you believe that an anal rape
had occurred?

[LOPEZ’S COUNSEL]: Objection, Your Honor. That’s completely outside
the province—that is outside the realm of his expertise. It invades the
province of the jury. It’s irrelevant. It’s prejudicial and under the Ducket
(sp.ph.) Case, we object, Judge.

THE COURT: It’s as a result of his investigation. Overruled.

[GARZA]: Based on the information that we received, yes, I believed that
there had been an anal sex or an anal penetration that had been [sic] or anal
assault on this victim because of how he described that he felt pain or
soreness in his butt, like he first said it.

Lopez argues that the trial court, in permitting Garza to give his opinion because it

was the “result of his investigation,” inferred that Garza was “capable of rendering an

opinion on the complainant’s truthfulness based on his expertise in investigating sexual

assault cases.” The State argues that, if viewed in the context of his earlier testimony, it

is clear that Garza’s complained-of testimony is not an opinion on John’s truthfulness,

explaining:

The State’s question to Ranger Garza as to whether he believed that an anal
rape occurred . . . did not directly question the truthfulness of the victim, but
only asked for Ranger Garza’s deduction from the context of what was
alleged and the physical evidence he had at the time of his investigation. In
fact, only later did the victim reveal to Ranger Garza that he was anally
raped, such that Ranger Garza could not have formed an opinion about his
truthfulness at the time of his initial investigation. Accordingly, in context, it
is clear that the prosecutor was merely asking whether the circumstances of
the assault . . . suggested an anal rape.

We reject the State’s explanation. We conclude the State asked a question that was

intended to illicit an inadmissible opinion on John’s truthfulness, and the question

accomplished this objective.

There was no physical evidence in this case; there was only an allegation from John

5
that physical evidence existed before he disposed of it. The only basis for Garza’s belief

that an anal rape occurred was John’s outcries. Moreover, contrary to the State’s

contention, Garza did not base his belief on evidence provided to him before he met John.

Garza testified that he believed John was sexually assaulted “because of how he described

that he felt pain or soreness in his butt.” The only time John offered such a description was

during an interview at the Children’s Advocacy Center,6 which Garza observed first-hand.

Accordingly, Garza’s complained-of testimony expressed an opinion on John’s truthfulness,

and the trial court erred in allowing this opinion to be presented to the jury.7

At a later point in his direct examination, however, Garza proffered an additional

opinion on John’s truthfulness:

Q [THE STATE]. Okay. Did [John] come out and say the defendant put his
anus—I mean, put his penis in the victim’s anus?

A [GARZA]. No, he did not.

Q. Does that mean, then, that it just didn’t happen, in your opinion?

A. No, it just means that he was too embarrassed to talk about it.8

By affirmatively rejecting the possibility that the sexual assault did not occur, Garza

expressed an opinion, without objection, on John’s truthfulness. Accordingly, any error

6
John outcried about being anally raped before m eeting with Garza, but the outcry did not entail any
com m ent relating to the pain he felt.

7
See Yount v. State, 872 S.W .2d 706, 712 (Tex. Crim . App. 1993) (holding that Texas Rule of
Evidence 702 “does not perm it an expert to give an opinion that the com plainant or class of persons to which
the com plainant belongs is truthful”).

8
Em phasis added.

6
arising from Garza’s complained-of testimony was rendered harmless.9

B. Dr. Hill’s Testimony

Dr. Hill, a clinical psychologist, was an expert witness for the State. During direct

examination, Dr. Hill testified as follows:

Q [THE STATE]. Have you evaluated the truthfulness of teenage boy victims
when they outcry about sexual assault?

[LOPEZ’S COUNSEL]: Judge, object. This is—

[THE COURT]: Overruled. You can answer that one.

A [DR. HILL]. Yes, ma’am.

Q. And what is—what has your evaluation found?

[LOPEZ’S COUNSEL]: Judge, I’d like to make an objection. Judge, I object.
This is invading the province of the jury. I’d object that it is not relevant, and
it’s relevant—the prejudice outweighs the probative value. There is no
showing that this witness is competent to say when someone is telling the
truth to something that he himself has not observed.

[THE COURT]: That wasn’t the question. You’re overruled.

[DR. HILL]: What was the question?

Q. What is your impression when you have evaluated whether teenage
boys, that their truthfulness about things like this?

A. Generally, they tell the truth.

[LOPEZ’S COUNSEL]. Judge, I’m renewing my objection. This witness
can’t possibly know.

THE COURT: This is based upon his study. It’s his evaluation. That’s all
it is. Based upon his experience as a psychiatrist, psychologist.

9
See Leday v. State, 983 S.W .2d 713, 717-18 (Tex. Crim . App. 1998) (explaining that “when a court
has overruled an objection to evidence, the ruling usually will not be reversible error when the sam e evidence
is subsequently adm itted without objection”).

7
 [THE STATE]: Pass the witness.10

Dr. Hill’s aforementioned testimony (hereinafter referred to as “truth testimony”) proffered

an opinion regarding the truthfulness of the class of persons to which John belonged,

which crossed the line between assisting the jury and attempting to replace the jury as trier

of fact with respect to John’s credibility.11 Because “[a]n expert who testifies that a class

of persons to which the victim belongs is truthful is essentially telling the jury that they can

believe the victim in the instant case as well,”12 we find that the trial court abused its

discretion when it allowed Dr. Hill’s truth testimony to go before the jury.13

Though we find that Lopez preserved this error for review, we must still determine

whether the error was rendered harmless by Garza’s unobjected-to testimony on John’s

truthfulness.14 We have reviewed what other appellate courts have done in this situation

and have found mixed results. The Twelfth Court of Appeals, for instance, recently issued

an opinion reversing a conviction for the sexual assault of a child because a clinical

psychologist indirectly expressed her belief that the complainant’s assault claim was

truthful.15 The court’s harm analysis ignored whether the psychologist’s testimony was

rendered harmless because of the testimony of an investigator, who was permitted to

10
Em phasis added.

11
See Duckett v. State, 797 S.W .2d 906, 920 (Tex. Crim . App. 1990).

12
Yount, 872 S.W .2d at 711.

13
Id. at 712. W e note that the State m akes no attem pt to contest this finding.

14
See generally Crocker v. State, 573 S.W .2d 190, 201 (Tex. Crim . App. 1978) (noting that “[i]t is well
established that the im proper adm ission of evidence does not constitute reversible error if the sam e facts are
shown by other evidence which is not challenged”).

15
Long v. State, No. 12-07-00256-CR, 2008 Tex. App. LEXIS 8885, at *12-31 (Tex. App.–Tyler Nov.
26, 2008, no pet.) (m em . op., not designated for publication).

8
testify that he believed the complainant.16 The Fifth Court of Appeals, on the other hand,

recently issued an opinion finding an investigator’s opinion on a child-complainant’s

truthfulness to be harmless due to a detective and the complainant’s grandmother

expressing similar opinions without objection.17 Lastly, the Fourteenth Court of Appeals,

in In re G.M.P., determined that a police officer’s opinion on the child-complainant’s

truthfulness was not rendered harmless by the complainant’s mother, who proffered a

similar opinion without objection.18 The court based its decision on the belief that the

“mother’s opinion of her son’s truthfulness was not the same caliber of evidence as the

officer’s expert testimony,” which was “likely to carry exceptional weight and an aura of

reliability.”19

We agree with the nature of In re G.M.P.’s reasoning, which was similarly employed

by the court of criminal appeals in Armstrong v. State.20 The defendant in Armstrong was

found guilty of capital murder.21 During the punishment phase, the deceased’s wife

testified for the State about the deceased’s good character.22 The defendant claimed the

16
Id. at *26-31.

17
Carter v. State, No. 05-06-01209-CR, 2008 Tex. App. LEXIS 74, at *2-5 (Tex. App.–Dallas Jan. 8,
2008, pet. ref’d) (m em . op., not designated for publication) (citing Briones v. State, 12 S.W .3d 126, 130 (Tex.
App.–Fort W orth 1999, no pet.); Marles v. State, 919 S.W .2d 669, 672 (Tex. App.–San Antonio 1996, pet.
ref’d)). W e note that we have reviewed Briones and Marles, and have found that they are not directly on point
to the m atter at hand.

18
909 S.W .2d 198, 204-06 (Tex. App.–Houston [14th Dist.] 1995, no pet.).

19
Id. at 206 (em phasis added).

20
Armstrong v. State, 718 S.W .2d 686, 702 (Tex. Crim . App. 1986).

21
Id. at 696.

22
Id. at 696-97.

9
wife’s testimony was admitted in error, and the court of criminal appeals agreed.23 The

State argued that the wife’s testimony was rendered harmless because the same evidence

was admitted elsewhere through multiple witnesses without the defendant’s objection.24

The court rejected this argument, explaining: “The glancing testimony of the other witness

to deceased’s niceness cannot be considered ‘the same facts’; nor was it of remotely the

same emotional caliber as [the wife’s] testimony, in terms of likelihood of inflaming the

jury’s emotions.”25 Employing the reasoning used in Armstrong and In re G.M.P., we find

that Dr. Hill’s truth testimony was not rendered harmless by Garza’s testimony, for Dr. Hill’s

truth testimony was likely to carry greater weight with the jury, despite the fact that both

witnesses testified as experts. The reasons for this stem from (1) Lopez having rebutted

the import of Garza’s testimony during cross-examination, but not Dr. Hill’s, and (2) the

State having emphasized Dr. Hill’s truth testimony to the jury during closing argument, but

not Garza’s.

The admission of Dr. Hill’s truth testimony is non-constitutional error,26 and a non-

constitutional error “that does not affect substantial rights must be disregarded.”27

Substantial rights are not affected by the erroneous admission of evidence if the appellate

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

23
Id. at 702.

24
Id. at 701.

25
Id. at 702 (em phasis added).

26
See Schutz v. State, 63 S.W .3d 442, 444-46 (Tex. Crim . App. 2001) (discussing the application of
non-constitutional error harm analysis to trial error involving expert witness who com m ented on the
truthfulness of com plainant’s allegations).

27
T EX . R. A PP . P. 44.2(b).

10
influence the jury, or had but a slight effect.28 When a trial court errs by improperly

admitting evidence, an appellate court determines the likelihood that the error adversely

affected the jury’s decision by considering everything in the record, including: (1) testimony

or physical evidence admitted for the jury’s consideration; (2) the nature of the evidence

supporting the verdict; (3) the character of the alleged error and how it might be considered

in connection with other evidence in the case; (4) the jury instructions; (5) the State’s

theory and any defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the

State emphasized the error.29

As previously stated, the State asked Dr. Hill whether teenage boys are truthful

when they make a sexual abuse outcry, to which he responded: “Generally, they tell the

truth.” Though this testimony is not an incredibly impactful endorsement of John’s

truthfulness, the State exacerbated its impact when it overstated the testimony during

closing argument, stating: “Dr. Sam Hill told you that teenage boys are very embarrassed

about [being sexually assaulted]. And most importantly, Dr. Sam Hill told you that teenage

boys do not lie about these kinds of things.” Lopez promptly objected to this statement and

requested an instruction to disregard. The trial court sustained the objection, but declined

to instruct the jury to disregard, thus nullifying any practical benefit of having sustained the

objection.

Dr. Hill’s truth testimony was further bolstered by the trial court, which allowed Dr.

Hill to testify as to the truthfulness of teenage boys because—as the court explained in

28
Motilla v. State, 78 S.W .3d 352, 355 (Tex. Crim . App. 2002).

29
Haley v. State, 173 S.W .3d 510, 518-19 (Tex. Crim . App. 2005).

11
front of the jury—his testimony was “based upon his study,” “[b]ased upon his experience

as a . . . psychologist.” Case law clearly reveals that the trial court’s rationale for admitting

Dr. Hill’s testimony is plainly wrong, and contrary to controlling law. As explained by the

court of criminal appeals in Yount v. State:

While a witness may possess “scientific, technical, or other specialized
knowledge” concerning sexually abused children, we seriously question
whether any such person also possesses “scientific, technical or other
specialized knowledge,” beyond the realm of the jury, regarding the
truthfulness of those children. As stated by one court, “Psychologists and
psychiatrists are not, and do not claim to be, experts at discerning truth.
Psychiatrists are trained to accept facts provided by their patients, not to act
as judges of patients’ credibility.”30

Lopez’s defense at trial was that John had fabricated the sexual abuse allegations

to avoid being schooled in a discipline program called the Alternative Education Program,

which John began re-attending the day before he made his initial outcry. The outcome of

the case thus depended on whether the jury believed John to be credible, or believed that

he had fabricated the charges for the reason proffered by Lopez. Accordingly, any harm

attributable to Dr. Hill’s truth testimony stems from its potential to unduly tilt the jury

towards believing John’s testimony.

Considering the record as a whole, we are left with a fair assurance that the trial

court’s error influenced the jury only slightly. Though the State emphasized Dr. Hill’s truth

testimony during closing argument, the trial court subsequently instructed the jury that it

was “the exclusive judge of the facts proved, of the credibility of the witnesses, and of the

weight to be given their testimony.” The jurors had ample evidence before them through

which they could form their own opinions of John’s truthfulness. The jury saw and heard

30
872 S.W .2d at 710 (quoting State v. Moran, 728 P.2d 248, 255 (Ariz. 1986)).

12
John testify about the sexual assault with specific detail, giving them an opportunity to

evaluate his maturity and credibility. The jury also heard John’s sister testify about his

behavior after Lopez left him at her home. The sister testified that John appeared “dazed,”

“confused,” and “just looked kind of thrown off.” She testified that she saw a large stain on

John’s shirt, which coincided with John’s own testimony. She also testified that John

informed her of his belief that Lopez had placed something in his drink, which caused his

eyes to start burning. Lastly, the jury heard from witnesses that received John’s outcries.

The individual who heard John’s initial outcry testified that John was crying uncontrollably

before and during the outcry. Witnesses who heard subsequent outcries testified that John

expressed a great deal of emotion in discussing what occurred between him and Lopez.

Judging the nature of the evidence supporting the verdict and the character of the

error and its relationship with other evidence, we conclude the trial court’s error did not

have a substantial and injurious effect or influence in determining the jury’s verdict and did

not affect Lopez’s substantial rights. Therefore, we disregard the trial court’s non-

constitutional error as harmless. We resolve Lopez’s first issue against him.

III. IMPROPER JURY ARGUMENT

In his fifth issue, Lopez argues that the trial court erred when it overruled his

objection concerning jury argument the State made during its rebuttal closing argument at

the guilt phase of the trial. The court of criminal appeals recently set out the law applicable

to this issue in Brown v. State, wherein the court stated:

It is the duty of trial counsel to confine their arguments to the record;
reference to facts that are neither in evidence nor inferable from the
evidence is therefore improper. Thus, proper jury argument generally falls
within one of four general areas: (1) summation of the evidence; (2)
reasonable deduction from the evidence; (3) answer to argument of opposing

13
 counsel; and (4) plea for law enforcement. The arguments that go beyond
these areas too often place before the jury unsworn, and most times
believable, testimony of the attorney. Consequently, error exists when facts
not supported by the record are interjected in the argument, but such error
is not reversible unless, in light of the record, the argument is extreme or
manifestly improper.31

In order to preserve the error for appellate review, however, there must be a proper

objection.32 The objection must state a specific ground to be sufficient,33 and the ground

of error asserted at trial is the only ground that may be asserted on appeal.34

Lopez argues that the State “engaged in improper jury argument by inserting new

and harmful facts into the trial.” The pertinent portion of the prosecutor’s argument is as

follows:

[THE STATE]: Look at the records of the defendant’s phone calls. Notice
how many times he was calling different numbers during the day, the same
number. It almost looked like he was angry at someone or he’d just broken
up with someone. Something was going on that day and something didn’t
go right for the defendant, so he turned to [John], we think, in order to—

[LOPEZ’S COUNSEL]: Judge, I’ll object. She’s arguing outside the record.
There’s no evidence.

[THE STATE]: Excuse me. I’m talking about the cell phone records.

THE COURT: It’s argument. Overruled.

[THE STATE]: Okay. Look at that. Something was going on. He was
upset. He couldn’t get one lover, so he decided to pick on this child.

Lopez asserts “[t]he State engaged in complete speculation when it concocted a story

31
No. AP-75,294, 2008 Tex. Crim . App. LEXIS 852, at *13-14 (Tex. Crim . App. Sept. 24, 2008)
(citations and internal quotations om itted).

32
Nichols v. State, 754 S.W .2d 185, 199 (Tex. Crim . App. 1988).

33
See Hougham v. State, 659 S.W .2d 410, 414 (Tex. Crim . App. 1983).

34
Miller v. State, 566 S.W .2d 614, 619, 621 (Tex. Crim . App. 1978).

14
about Lopez being unable to get over one lover and therefore, prey[ed] on the

complainant.”

In response, the State first argues that any error stemming from the complained-of

jury argument was not preserved for review. The State contends that Lopez’s objection

was not timely because it was able to state all of the following before an objection was

made: “It almost looked like he was angry at someone or he’d just broken up with

someone. Something was going on that day and something didn’t go right for the

defendant, so he turned to [John], we think, in order to—[.]”35 Paradoxically, the State also

contends that Lopez waived error by objecting too early, explaining: “Defendant fails to

show or preserve error where he makes a premature objection by cutting off the

prosecutor’s argument in mid-sentence, when, although that argument may appear to be

headed in an improper direction, the sentence might nevertheless have been completed

in a permissible manner.”

We find that Lopez’s objection was neither too early, nor too late. Lopez’s objection

was sufficiently prompt to preserve the claimed error for appellate review. The objection

was not too early because the nature of the State’s argument was readily perceptible at the

point Lopez interjected,36 and Lopez’s perception of where the argument was heading was

proven correct when the State later completed the argument. We further reject the State’s

35
See generally Ethington v. State, 819 S.W .2d 854, 858 (Tex. Crim . App. 1991) (discussing rules
governing the preservation of error relating to the adm ission of evidence in crim inal cases).

36
The direction of the jury argum ent in this case is clearer than that discussed in other cases, wherein
the appellate court determ ined that defense counsel’s objection was prem ature. See, e.g., Felder v. State,
848 S.W .2d 85, 95-96 (Tex. Crim . App. 1992); Denning v. State, No. 05-96-00935-CR, 1998 Tex. App. LEXIS
684, at *8-11 (Tex. App.–Dallas Feb. 4, 1998, no pet.) (not designated for publication); Thomas v. State, 750
S.W .2d 234, 234-35 (Tex. App.–Dallas 1986, no pet.).

15
contention that Lopez waived error by not objecting again after the State completed the

argument. Because we find no basis for waiver, we find the claimed error was preserved

for our review.

The State next argues that the jury argument was proper. The jury argument was

based, in part, on Lopez’s cell phone records. The records, admitted at trial, revealed

outgoing and incoming calls from Lopez’s cell phone on June 21, 2004—the day Lopez

and John met. More specifically, the records revealed the following: (1) from 7:36 p.m.

to 8:34 p.m. on the night in question, eight outgoing phone calls were made to a number

we shall hereinafter fictitiously refer to as “777-7777”; all calls lasted less than a minute;

(2) at 8:34 p.m., John called Lopez’s cell phone; the call lasted less than a minute; (3) from

8:37 p.m. to 9:27 p.m., fifteen outgoing phone calls were made to 777-7777; all calls lasted

less than a minute; (4) at 9:43 p.m., John again called Lopez’s cell phone; the call lasted

less than a minute; and (5) after John’s second call was received, no additional calls were

made to 777-7777 for the remainder of the night or the following day.

The possessor of the 777-7777 number was never identified at trial. The State

questioned Lopez about the number, but he testified that he did not recognize the number

and did not recall calling it on the night in question. In addition to Lopez’s phone records,

the jury argument was also based on the testimony of Jeremiah Avalos, Lopez’s former

lover, and Karen Garcia, Lopez’s friend. Avalos testified that he and Lopez had ended

their relationship on less-than-amicable terms shortly before June 2004, and Garcia

testified that Lopez and Avalos’s relationship was “off-and-on” in June 2004. Relying on

all this evidence, the State defends the jury argument, explaining:

[E]vidence at trial suggested that Lopez was in the process of breaking up

16
 with Avalos at the time, and that his phone records reflected numerous
unexplained calls, many to the same telephone number, just before Lopez
picked up and assaulted [John]. Numerous calls to the same number within
a short span of time do reasonably suggest some sort of tension between
the people involved. It is further reasonable to infer the possibility, or even
the probability, considering the context of Lopez breaking off his homosexual
relationship with Avalos and his later homosexual assault that night on
[John], that this tension likewise involved a homosexual encounter of some
sort. Completing this picture, it is finally also reasonable to infer that the
frustration and disappointment of a failed homosexual encounter caused
Lopez to then center his attention on [John] as a substitute partner.37

“It is . . . well established that counsel may in argument draw from the facts in

evidence all inferences that are reasonable, fair, and legitimate and he will be afforded

latitude without limitation in this respect so long as his argument is supported by the

evidence and offered in good faith.”38 “[A]n inference is a conclusion reached by

considering other facts and deducing a logical consequence from them.”39 In the instant

case, the State’s suggestion that Lopez was experiencing frustration and disappointment

from “a failed homosexual encounter” prior to meeting with John—thus prompting him to

sexually assault John—is not a “logical consequence” that can be deduced from Lopez’s

recent termination of a long-term relationship and the numerous and unexplained 777-7777

calls.

We find that the jury argument was premised on speculation—“mere theorizing or

guessing about the possible meaning of facts and evidence presented.”40 The evidence

at trial revealed that Lopez and Avalos had broken-up numerous times, and that it was

37
S TATE ’S B R IEF at 37.

38
Griffin v. State, 554 S.W .2d 688, 690 (Tex. Crim . App. 1977) (em phasis added).

39
See Hooper v. State, 214 S.W .3d 9, 16 (Tex. Crim . App. 2007) (em phasis added).

40
Id.

17
Lopez who had recently elected to end the relationship. There was no evidence showing

that Lopez had a history of violent behavior upon breaking-up with Avalos, or that Lopez’s

recent break-up had left him in a mentally or emotionally unstable state. There was no

evidence relating to Lopez’s dating habits or his sexual encounters once his relationship

with Avalos ended. There was no evidence that the 777-7777 number belonged to a male

homosexual that knew Lopez. There was no evidence that the 777-7777 number even

belonged to an individual, as opposed to a place of business.

Moreover, the fact that there are a limited number of explanations for the numerous

777-7777 calls does not change the speculative nature of the State’s jury argument. In

Felder v. State, for example, the defendant was accused of capital murder.41 The evidence

showed that the victim “was stabbed repeatedly ‘back and forth’ in the head and neck.”42

During closing argument, the prosecutor suggested to the jury that the defendant’s motive

for puncturing the victim’s neck eight times—punctures that were medically proven to have

not caused the victim’s death—was to torture the victim or assess whether the victim was

still breathing.43 In assessing the propriety of the jury argument, the court of criminal

appeals stated: “It seems clear to us that, taken as a whole, this argument invites the jury

to speculate as to appellant’s motive in inflicting the neck wounds.”44

For all these reasons, we find that the State’s jury argument invited the jury to

speculate as to Lopez’s motive for sexually assaulting John, and that the trial court thus

41
848 S.W .2d at 87.

42
Id. at 95.

43
Id.

44
Id. at 96.

18
erred in admitting the argument over Lopez’s objection. Because the trial court’s error was

non-constitutional in nature,45 we must disregard it if it did not affect Lopez’s substantial

rights.46 We make this determination by balancing the severity of the misconduct (i.e., the

prejudicial effect), any curative measures, and the certainty of conviction absent the

misconduct.47 In evaluating the severity of the misconduct, we must assess whether the

jury argument is extreme or manifestly improper by looking at the entire record of final

arguments to determine if there was a willful and calculated effort on the part of the State

to deprive Lopez of a fair and impartial trial.48

We do not believe the jury argument was a willful and calculated effort on the part

of the State to deprive Lopez of a fair and impartial trial. Though no curative measure was

taken in response to the State’s jury argument, the adverse effect of the error was

mitigated by the fact that the State did not need to prove Lopez’s motive to secure a

conviction. Therefore, the certainty of conviction remains largely the same absent the

misconduct. For these reasons, we find that the State’s jury argument did not have a

substantial and injurious effect or influence in determining the jury’s verdict on guilt. We

also find, though with greater difficulty, that the jury argument did not have a substantial

and injurious effect or influence in determining the jury’s verdict on punishment. Though

in some cases, the prejudice from improper jury argument is apparent from the jury’s

45
See Brown, 270 S.W .3d at 19.

46
T EX . R. A PP . P. 44.2(b).

47
Brown, 270 S.W .3d at 19-20.

48
Id. at 20.

19
imposition of the maximum sentence,49 this is not one of those cases. Lopez’s fifth issue

is therefore overruled.

IV. Extraneous Acts

A. Introduction

In his third issue, Lopez asserts the trial court erred in allowing the State to present

extraneous misconduct through the testimony of Avalos, Lopez’s ex-boyfriend. Without

objection from Lopez’s counsel, Avalos provided the following testimony: (1) he was

sixteen-years-old when he met Lopez; (2) he is ten years younger than Lopez; (3) he was

seventeen-years-old when he became sexually involved with Lopez; and (4) the sexual

relationship involved Lopez performing oral and anal sex on him. The State attempted to

question Avalos about having unprotected sex with Lopez, which prompted Lopez’s

counsel to object and request a hearing outside the jury’s presence. After the jury was

excused, the following discussion took place:

THE COURT: All right. The jury is outside the courtroom. What is your
objection?

[LOPEZ’S COUNSEL]: Judge, I would object because I believe that she’s
going to inquire of this witness, whether my client had unprotected anal and
oral sex with him without telling him that he had HIV. That, Your Honor,
would be an offense. It’s certainly extraneous bad conduct. We’re objecting
that—on the grounds that it is not relevant, and if it is relevant, that is clearly
outweighed by the prejudicial effect. There’s been absolutely no evidence
that would justify the inclusion at this stage of the trial of extraneous offenses
in this case. In fact, the victim himself hasn’t even testified, so we’re
objecting on those grounds.

[THE STATE]: The Court has already ruled on this matter. Furthermore,

49
See, e.g., Moore v. State, 530 S.W .2d 536, 537 (Tex. Crim . App. 1975) (finding that the harm
stem m ing from the State’s im proper jury argum ent—which associated defendant with uncharged crim inal
conduct— was apparent from the jury’s im position of the m axim um sentence for the charged offenses).

20
 [Lopez’s counsel] asked Karen Garcia if the defendant would ever do
something like this, and at that time, I approached the Bench and he was
allowed to go into it. So, on those grounds also, but this—this clearly goes
to intent, motive, modus operandi, and we would argue that it’s admissible.

THE COURT: I believe it’s admissible. I mean, I want to think about
the—whether the prejudicial effect outweighs the probative value. I mean,
I’m—that’s the part that troubles me, frankly.

[THE STATE]: I thought there had already been a court ruling.

THE COURT: Well, we discussed this, but it’s a matter of a limine, you
know, and I said we’d wait and see how the evidence came in.

[LOPEZ’S COUNSEL]: Judge, the reason I bring up the fact that the victim
hasn’t testified is because I expect, unless things have changed, that the
victim is going to testify that he didn’t know whether my client was wearing
a condom or not.

[THE STATE]: He can testify—I disagree.

THE COURT: Well, I mean, if that’s it—okay. The objection’s overruled.
Let’s go. Come on, bring the jury back in.

Upon the jury returning to the courtroom, Avalos, guided by the State’s questioning,

testified that (1) he did not wear a condom when Lopez performed oral sex on him; (2)

Lopez did not wear a condom when Lopez performed anal sex on him; and (3) Lopez did

not inform him that he (Lopez) had HIV before they became sexually involved.

On appeal, Lopez argues that, pursuant to Texas Rule of Evidence 404(b), the trial

court erred in admitting this testimony (hereinafter collectively referred to as “the

extraneous acts”). We find that Lopez’s Rule 404(b) objection is applicable to the

admission of the extraneous acts,50 and that the objection properly preserved this issue for

50
See Plante v. State, 692 S.W .2d 487, 490 n.3 (Tex. Crim . App. 1985) (stating that “[t]he analysis
of the adm issibility of extraneous conduct is the sam e whenever the extraneous conduct reflects adversely
on the character of the defendant, regardless of whether that conduct m ight give rise to crim inal liability”);
Bishop v. State, 837 S.W .2d 431, 435 (Tex. App.–Beaum ont 1992) (rejecting State’s claim that defendant’s
Rule 404(b) objection was inapplicable to the com plained-of evidence— nam ely, testim ony from defendant’s

21
our review. We must now assess whether the trial court erred in admitting the extraneous

acts.

B. Did the Trial Court Err?

To be admissible, evidence must be relevant.51 Evidence of other crimes, wrongs,

or bad acts is not admissible to show character conformity but may be admissible for other

purposes, such as establishing an elemental fact, establishing an evidentiary fact that

leads to an elemental fact, or rebutting a defensive theory.52 Rule 404(b) provides that

evidence of other crimes, wrongs, or bad acts may be admissible for proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.53 Further, although relevant evidence may be admissible under Rule 404(b),

evidence may still be inadmissible under Texas Rule of Evidence 403.54

When performing a Rule 403 balancing test, a trial court must determine if the

probative value of the evidence is substantially outweighed by the danger of unfair

prejudice.55 In making this determination, the trial court should consider the following: (1)

whether the ultimate issue was seriously contested by the opponent of the evidence; (2)

wife, who was not the com plainant, discussing details of consensual sexual acts between them ), aff’d, 896
S.W .2d 342 (Tex. Crim . App. 1993); see also Atkins v. State, No. 05-07-00586, 2008 Tex. App. LEXIS 5407,
*12-17 (Tex. App.–Dallas 2008 July 23, 2008, pet. ref’d) (not designated for publication) (assessing, under
Rule 404(b), trial court’s adm ission of videotapes showing HIV-positive defendant having unprotected sex with
consensual adults).

51
T EX . R. E VID . 402.

52
Id. 404(b); Montgomery v. State, 810 S.W .2d 372, 391 (Tex. Crim . App. 1991) (opinion on
rehearing).

53
T EX . R. E VID . 404(b).

54
Id. 403.

55
Montgomery, 810 S.W .2d at 389.

22
whether the State had other convincing evidence to establish the ultimate issue to which

the disputed evidence was relevant; (3) the compelling nature, or lack thereof, of the

evidence; and (4) the likelihood that the evidence was of such a nature as to impair the

efficacy of a limiting instruction.56 The trial court should also consider how much time the

State will need to develop the extraneous offense evidence and the potential for the

evidence to affect the jury in some irrational way.57 We will reverse the trial court's ruling

only upon a showing of a clear abuse of discretion.58 An abuse of discretion is shown if the

ruling was outside the zone of reasonable disagreement.59

In the instant case, the State argued at trial that the extraneous acts were

admissible under Rule 404(b) to show Lopez’s “intent, motive, [and] modus operandi.”60

With regard to Lopez’s intent, the State sought to prove at trial that he knowingly or

intentionally penetrated John’s anus, and that he knowingly or intentionally caused John’s

penis to contact his mouth. Lopez did not claim at trial, nor did the evidence suggest, that

he accidentally committed these acts; therefore, the inclusion of the extraneous acts was

not necessary to shore up the State’s case or disprove an otherwise innocent intent.61

Furthermore, even if Lopez had made his intent an issue at trial (i.e., by admitting to the

56
Taylor v. State, 920 S.W .2d 319, 322 (Tex. Crim . App. 1996); Montgomery, 810 S.W .2d at 392-93.

57
Mozon v. State, 991 S.W .2d 841, 847 (Tex. Crim . App. 1999).

58
W yatt v. State, 23 S.W .3d 18, 26 (Tex. Crim . App. 2000); Ransom v. State, 920 S.W .2d 288, 299
(Tex. Crim . App. 1996); Montgomery, 810 S.W .2d at 390.

59
Montgomery, 810 S.W .2d at 391.

60
The State m akes no attem pt on appeal to defend the adm ission of the extraneous acts on these
grounds, or any other grounds.

61
See Clark v. State, 726 S.W .2d 120, 124 (Tex. Crim . App. 1987).

23
alleged contact with John while claiming the contact was accidental), we fail to see how the

extraneous acts would be relevant in negating such a defense.

The State also argued at trial that the extraneous acts were admissible to show

Lopez’s motive. “[M]otive refers to an emotion that would provoke or lead to the

commission of a criminal offense. Evidence to show motive is the circumstantial evidence

that would appear to cause or produce the emotion.”62 On appeal, the State does not

explain (1) how Lopez and Avalos’s consensual sexual activity without a condom produced

the emotion that provoked Lopez to sexually assault John, nor (2) how Lopez’s failure to

tell Avalos that he was HIV positive produced the emotion that provoked Lopez to sexually

assault John. We see no relation between the extraneous acts and the State’s efforts to

establish Lopez’s motive for committing the charged offenses. Accordingly, we find that

the extraneous acts had no relevance as to motive.

Lastly, the State argued at trial that the extraneous acts were admissible to show

Lopez’s modus operandi. In Owens v. State, the court of criminal appeals discussed

admitting extraneous offense evidence to show a defendant’s modus operandi, stating:

[T]he terms “modus operandi” or “methodology” refer to a defendant’s
distinctive and idiosyncratic manner of committing criminal acts. Evidence
of a defendant’s particular modus operandi is a recognized exception to the
general rule precluding extraneous offense evidence, if the modus operandi
tends to prove a material fact at issue, other than propensity.

....

. . . When the State seeks to admit extraneous offense evidence
under a theory of “system” or modus operandi, there must be a showing that
the extraneous offense which was committed by the defendant was ‘so
nearly identical in method to the charged offense as to earmark them as the

62
Rodriguez v. State, 486 S.W .2d 355, 358 (Tex. Crim . App. 1972).

24
 handiwork of the accused. The State must show more than the mere
repeated commission of crimes of the same type or class: The device used
must be so unusual and distinctive as to be like a signature. If there is no
sufficiently distinctive characteristic, then the relevancy of the evidence
cannot outweigh its prejudicial value.63

The Ninth Court of Appeals’ opinion in Cooper v. State is instructive to our resolution

of this matter.64 Cooper was convicted on two counts of aggravated sexual assault. One

of the complainants, a female child, accused Cooper of using threats to make her submit

to anal and vaginal intercourse. Cooper lived with the complainant and her mother for four

years. At trial, the State had the complainant’s mother testify about her relationship with

Cooper—namely, her sexual involvement with him.65 The mother testified, over Cooper’s

objection, that Cooper had anal sex with her. She further testified that she never wanted

to engage in anal sex, but submitted to Cooper because of his forcefulness. Cooper

argued on appeal that the trial court erred in admitting the mother’s testimony. The court

of appeals agreed with Cooper, and rejected the State’s claim that the mother’s testimony

was admissible under Rule 404(b) because it went to Cooper’s modus operandi. The court

rejected this claim because the mother’s testimony did not establish Cooper’s “signature,”

and Cooper’s identity was not an issue at trial.66 The court also added the following: “[W]e

are not prepared to concede that evidence of otherwise consensual sexual relations

between an adult male and female, albeit involving anal intercourse, is relevant in the

63
827 S.W .2d 911, 914 (Tex. Crim . App. 1992) (citations and internal quotations and brackets
om itted).

64
901 S.W .2d 757, 760-63 (Tex. App.–Beaum ont 1995, pet. dism ’d).

65
Id. at 760.

66
Id. at 761.

25
prosecution of said adult male for engaging in forcible sex acts perpetrated upon male and

female children, albeit also involving anal intercourse.”67

As was the case in Cooper, we cannot conclude that the extraneous acts—Lopez’s

practice of not using a condom while engaged in consensual sex with Avalos (an adult,

long-term companion), and Lopez’s failure to inform Avalos of his HIV-positive

status—established Lopez’s “signature” for sexually assaulting a child. Lopez’s failure to

wear a condom and disclose his HIV status with a sexual partner does not establish a

signature because most sexual assaults committed by a male perpetrator likely occur

without the use of a condom and without a discussion of the perpetrator’s medical history.68

To hold that Lopez’s sexual conduct with Avalos and his alleged conduct with John are “so

nearly identical in method as to constitute a ‘system’ would run the risk of qualifying almost

any two crimes of the same class and against the same type of victim as a ‘system.’”69

Moreover, Lopez’s identity was not an issue at trial. There was no indication that John had

difficulty identifying Lopez as the individual that sexually assaulted him, thus calling into

question the State’s necessity of establishing Lopez’s modus operandi. Accordingly, we

find the extraneous acts were entirely irrelevant to establishing Lopez’s modus operandi

for sexually assaulting a child.

We find there was no admissible purpose for the admission of the extraneous acts

67
Id. at 761-62.

68
See id. at 915-16 (“W e recognize that there will always be sim ilarities in the com m ission of the
sam e type of crim e. That is, any case of robbery by firearm s is quite likely to have been com m itted in m uch
the sam e way as any other. W hat m ust be shown to m ake the evidence of the extraneous offense adm issible
is som ething that sets it apart from its class or type of crim e in general, and m arks it distinctively in the sam e
m anner as the principal crim e.”)

69
Id. at 915.

26
under Rule 404(b). The extraneous acts—much like other portions of Avalos’s testimony

admitted without objection at trial—were presented to show the character of Lopez in order

to show that he acted in conformity therewith. Because this is exactly what Rule 404(b)

prohibits, we find that the trial court abused its discretion in admitting the extraneous acts.70

C. Was the Error Rendered Harmless?

1. The State’s Opening Statement

The State contends on appeal that the error was rendered harmless for a number

of reasons. Addressing the State’s first contention requires us to begin with a review of the

State’s opening statement at trial, which is where the extraneous acts were first discussed:

[THE STATE]: We are going to bring many witnesses to you, and at the
close—we are also going to share with you that the defendant knew since
1996 that he was HIV positive. You will hear from an ex-lover of the
defendant, Jeremiah Avalos, that the defendant—

[LOPEZ’S COUNSEL]: Judge, we—we would object. Counsel is attempting
to insert extraneous offenses in this matter. We object under 403. We
object under 401. It is not relevant and its prejudicial effect clearly outweighs
any relevance and it’s certainly not been raised. We object to extraneous—

THE COURT: Overruled. Overruled.

[THE STATE]: Okay. Jeremiah was younger than the defendant, by ten
years, and Jeremiah will share that starting when he was about seventeen
or eighteen, the defendant engaged in anal sex with him and that the
defendant enjoyed being the one to put his penis in the anus of Jeremiah
Avalos and that the defendant repeatedly had anal sex with Jeremiah without
using any kind of protection.

[LOPEZ’S COUNSEL]: Again, we object, Your Honor. Same reasons,

70
See generally Montgomery, 810 S.W .2d at 391 (“W here the appellate court can say with confidence
that by no reasonable perception of com m on experience can it be concluded that proffered evidence has a
tendency to m ake the existence of a fact of consequence m ore or less probable than it would otherwise be,
then it can be said the trial court abused its discretion to adm it that evidence. Moreover, when it is clear to
the appellate court that what was perceived by the trial court as com m on experience is really no m ore than
the operation of a com m on prejudice, not borne out of reason, the trial court has abused its discretion.”).

27
 extraneous offenses. It’s not been raised, 403, 401, Judge.

THE COURT: Overruled.

[THE STATE]: That the defendant repeatedly had anal sex with Jeremiah
Avalos and did not tell Jeremiah Avalos that he was HIV positive. . . .

The Texas Court of Criminal Appeals has held that “[a]n objection that such

evidence is . . . an ‘extraneous offense’ . . . ought ordinarily to be sufficient under the

circumstances to apprise the trial court of the nature of the complaint.”71 Accordingly,

contrary to the State’s argument on appeal, Lopez did apprise the trial court that he was

objecting under Rule 404(b) when he twice objected and stated “extraneous offenses.”

Assuming, arguendo, that Lopez did fail to apprise the trial court of his Rule 404(b)

objection, we still would not conclude this rendered harmless Avalos’s later discussion of

those acts. The doctrine of harmless error (or “waiver”) is applicable to a situation where

a court overrules “an objection to evidence after the same evidence has been admitted

without objection.”72

The effect of the earlier-admitted evidence on appellate review of the ruling
is clear: Overruling the objection usually will not be reversible error. “It is
well established that the improper admission of evidence does not constitute
reversible error if the same facts are shown by other evidence which is not
challenged.”73

The State’s opening statement was not “other evidence” that the jury could consider in

determining Lopez’s guilt or innocence;74 therefore, Avalos’s discussion of the extraneous

71
Id. at 387.

72
Leday, 983 S.W .2d at 717.

73
Id. (quoting Crocker v. State, 573 S.W .2d 190, 201 (Tex. Crim . App. 1978)).

74
See Fuller v. State, 73 S.W .3d 250, 264 (Tex. Crim . App. 2002) (stating that opening and closing
argum ents are not evidence).

28
acts, which was evidence the jury could consider, was not rendered harmless by the

State’s opening statement.

2. Karen Garcia’s Testimony

Karen Garcia, Lopez’s friend, was the State’s first witness. On direct examination,

the State did not question Garcia as to whether she had knowledge about Lopez’s condom

usage with Avalos. Furthermore, the State did not question Garcia as to whether, to her

knowledge, Avalos was aware of Lopez’s HIV status from the beginning of their sexual

relationship. While under cross-examination by Lopez’s counsel, however, Garcia stated

the following:

Q. [LOPEZ’S COUNSEL]. Okay. Now, Jeremiah—Jeremiah knew that
[Lopez] had HIV, didn’t he?

A. [GARCIA]. Yes.

Q. I mean, he knew it pretty much from the start, didn’t he?

A. Yes.

Q. And Jeremiah, even though he knew that [Lopez] had HIV, still slept with
him?

A. Correct.

Q. In fact, repeatedly and over time knowing basically from the start that he
had HIV, isn’t that true?

A. True.

Q. In fact, wouldn’t Jeremiah even go to the doctor with him?

A. I’m not too sure about that, but, you know, I knew he knew that, you
know, [Lopez] was sick.

The State’s brief, in setting forth arguments for why Avalos’s testimony was

rendered harmless, draws attention to the fact that “Lopez’s attorney himself had solicited

29
testimony from Karen Garcia that Avalos knew about Lopez’s HIV status from the

beginning.” The brief then states the following:

Accordingly, by failing to object to prior instances where evidence
came in without any 404(b) objection, Lopez waived any complaint
concerning his own sexual orientation and HIV status, and his sexual
relationship with Avalos, including both jury argument and testimony solicited
by Lopez’s attorney as to whether Avalos knew about Lopez’s HIV status
before they began that sexual relationship.

Lopez thus waived any error when the prosecutor later asked the
same general questions of Avalos, and specifically whether Lopez told
Avalos about his HIV status before engaging in unprotected sex with him.

The State’s argument is less than clear. Nevertheless, we perceive the State’s argument

as raising one of two possible contentions.

The first possible contention is that Karen Garcia’s testimony is same or similar

evidence of the extraneous acts discussed by Avalos, thus rendering Avalos’s testimony

harmless.75 We find this contention unpersuasive. Garcia’s testimony that Avalos was

aware of Lopez’s HIV status from the start of their sexual relationship, and Avalos’s

testimony that he was unaware of Lopez’s HIV status at the start of their sexual

relationship, is not same or similar evidence. For an evidentiary error to be rendered

harmless by same or similar evidence, the latter must complement the former—rather than

conflict with it—in order to prove the same fact.76 The State’s second possible contention

is that Karen Garcia’s testimony provides an independent basis for admitting Avalos’s

testimony, for even if Avalos’s discussion of the extraneous acts was impermissible

75
See generally Leday, 983 S.W .2d at 717-18 (explaining that “when a court has overruled an
objection to evidence, the ruling usually will not be reversible error when the sam e evidence is subsequently
adm itted without objection”).

76
See Nicholas v. State, 502 S.W .2d 169, 174 (Tex. Crim . App. 1973).

30
evidence under Rule 404(b), the evidence was permissible to rebut Garcia’s contradictory

testimony. We find this contention unpersuasive, as well.

If the State merely intended to rebut Garcia’s testimony through Avalos’s

extraneous-acts testimony, the trial court should have sustained Lopez’s Rule 401 and

Rule 403 objections to Avalos’s testimony. As already explained, Avalos’s discussion of

the extraneous acts was irrelevant to Lopez’s intent, modus operandi, motive, or any other

admissible purpose articulated under Rule 404(b). The extraneous acts were irrelevant to

rebutting a defensive theory that Lopez raised at trial. Moreover, the extraneous acts were

irrelevant to rebutting evidence of Lopez’s good character. Garcia’s testimony that Avalos

was aware of Lopez’s HIV status was not evidence of Lopez’s good character. Though

Garcia testified that Avalos knew of Lopez’s HIV status at the start of their sexual

relationship, she never specified whether Avalos’s knowledge stemmed from Lopez,

another individual, or random circumstance.

The only “relevant” purpose of Avalos’s extraneous-acts testimony was to show that

Garcia was mistaken in her belief as to when Avalos became aware of Lopez’s HIV status.

Whether or not Garcia had a mistaken belief about this matter, however, was irrelevant to

Lopez’s trial; therefore, there was no relevant purpose behind Avalos’s discussion of the

extraneous acts. If there was any relevance to this discussion, that relevance was

substantially outweighed by the danger of unfair prejudice against Lopez.

We further find that the State cannot use Garcia’s testimony to justify the

admissibility of Avalos’s testimony because Garcia’s testimony was rebuttal evidence. To

31
understand how we arrive at this point, we begin with a discussion of Drew v. State.77 In

Drew, the court of criminal appeals determined that the trial court erred in permitting the

State to present extraneous offense evidence over Drew’s objection, and held that Drew

did not “open the door” to the extraneous offense evidence by later presenting rebuttal

evidence.78 The court of criminal appeals explained:

By protesting that [extraneous offense] evidence at the first opportunity,
however, appellant indicated an unwillingness to “play ball.” Moreover, once
he objected at the outset, any evidence of like kind which appellant
presented to refute evidence admitted over his objection should not be
considered belated agreement to admit specific conduct in aid of jury
discretion. An accused cannot in fairness be expected to “forfeit” rebuttal of
damaging evidence admitted over his objection in order to preserve error on
appeal. Rather, we will presume appellant is “playing the game under
protest.”79

In holding that rebuttal evidence does not “open the door” to the evidence it seeks to

refute, Drew assessed a situation in which the evidence being rebutted was presented

before the rebuttal evidence. Drew’s holding, however, can be logically applied to certain

situations in which the evidence being rebutted is presented after the rebuttal evidence.

We demonstrate this point through the following hypothetical.

Imagine that at a trial’s guilt phase, the trial court, over the defendant’s objection,

improperly permits the State to present extraneous offense evidence through its witness,

Sam. During the defense case-in-chief, the defendant presents rebuttal evidence to meet,

explain, or destroy Sam’s testimony. After the defense case-in-chief, the trial court permits

the State, over the defendant’s objection, to reiterate the same extraneous offense

77
777 S.W .2d 74 (Tex. Crim . App. 1989).

78
Id. at 76.

79
Id.

32
evidence through Bob, a rebuttal witness. If the defendant appealed the trial court’s

admission of the extraneous offense evidence, the State could not reasonably argue that

the defendant’s rebuttal evidence “opened the door” to Bob’s testimony, which was

introduced after the rebuttal evidence. To believe otherwise would unfairly result in

defendants being compelled to forfeit rebuttal of damaging evidence admitted over

objection in order to preserve error on appeal.80

The instant case is factually similar to the above hypothetical, with one critical

distinction. In the hypothetical, the defendant’s rebuttal evidence responds to actual

evidence (i.e., Sam’s testimony); in the instant case, Lopez’s rebuttal evidence (i.e,

Garcia’s testimony) responds to the State’s opening statement, which is not evidence.81

The question that confronts us is whether this distinction is significant. Does this distinction

cause Garcia’s testimony to open the door to Avalos’s extraneous-acts testimony? After

much consideration, we answer this question in the negative.

In Powell v. State, the court of criminal appeals determined that the State could

introduce extraneous offense evidence in its case-in-chief to rebut a defensive theory that

was raised in the defendant’s opening statement.82 The court of criminal appeals later

made the same determination in Bass v. State,83 explaining therein:

Although a defensive opening statement is not itself evidence, it does
inform the jury of the nature of the defenses relied upon and the facts
expected to be proved in their support. When, as here, the defense chooses

80
See id.

81
See Fuller, 73 S.W .3d at 264.

82
63 S.W .3d 435, 439 (Tex. Crim . App. 2001).

83
270 S.W .3d 557, 563 (Tex. Crim . App. 2008).

33
 to make its opening statement immediately after the State’s opening
statement, the State may reasonably rely on this defensive opening
statement as to what evidence the defense intends to present and rebut this
anticipated defensive evidence during its case-in-chief as opposed to waiting
until rebuttal.84

If the State can present extraneous offense evidence to rebut anticipated defensive

evidence because it “reasonably rel[ied] on [a] defensive opening statement as to what

evidence the defense intend[ed] to present,”85 then a defendant should similarly be able

to rebut anticipated extraneous offense evidence based on the defendant’s reasonable

reliance on the State’s opening statement as to what evidence the State intends to present.

A defendant arguably has greater reason to rely on the State’s opening statement. When

the State discusses an extraneous offense in its opening statement, the State’s failure to

present evidence of that offense renders the State’s opening statement improper, and risks

affording the defendant a basis for retrial.86 This being the case, it is reasonable for a

defendant to presuppose that the State would not risk violating his substantial rights by

referencing extraneous offenses that it does not fully intend to present evidence on.

Moreover, though the State’s opening statement is not evidence, it is disingenuous

to believe that matters raised therein are incapable of harming a defendant. Courts have

cautioned that a “prosecutor should not use the opening statement as an opportunity to

poison the jury’s mind against the defendant or to recite items of highly questionable

84
Id. at 563 n.7 (citations and internal quotations om itted).

85
Id.

86
See United States v. Thomas, 114 F.3d 228, 248 (D.C. Circ. 1997) (“[W ]here the prosecutor inform s
the jury that the governm ent will produce certain evidence to show a defendant’s guilt and then, without good
cause, fails to do so, the prosecutor fails to give a proper opening statem ent to the jury. Otherwise, the risk
to the defendant is that the jury’s m indset will be tainted, resulting in an unfair trial. The risk to the governm ent
is it m ay have to retry the case.”).

34
value.”87 The State’s references to the extraneous acts in the instant case, as will be

discussed later in this opinion, had the effect of portraying Lopez as an individual of

generally bad character—specifically, a callous and exploitative person with a reckless

disregard for human life. We cannot fault Lopez’s counsel for wanting to rebut this

portrayal at the earliest opportunity, rather than allow the jurors’ minds to retain this

portrayal (untarnished by rebuttal) while entertaining John’s testimony and assessing

John’s credibility. The fact of the matter is that Lopez’s counsel had no obviously

preferable means of responding to the State’s opening-statement discussion of the

extraneous acts. Even if Lopez’s counsel had not presented rebuttal evidence through

Garcia, and the State had not presented evidence of the extraneous acts, Lopez’s counsel

would still confront a complicated decision regarding how best to respond to the State’s

opening statement. As explained by one federal court of appeals:

It is true, as the government points out, that during closing arguments
the defense is free to call to the jury’s attention the fact that the government
has failed to present evidence that it promised, and to that extent its case is
suspect, being weaker than the jury might originally have thought based on
the prosecutor’s opening statement. But this approach places an unfair
burden on the defense in cases . . . where . . . defense counsel may wish to
avoid reminding the jury of activities for which no evidence was offered at
trial.88

In conclusion, the State’s opening statement informed the jury as to how the State

would prove Lopez committed the charged offenses, and it made clear the State’s intent

to rely on the extraneous acts to accomplish this objective. Under Powell and its progeny,

87
United States v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988) (em phasis added; citations and
internal quotations om itted) (citing United States v. DeRosa, 548 F.2d 464, 470 (3d Cir. 1977)).

88
Thomas, 114 F.3d at 248.

35
we find it difficult to discern why Lopez could not rely on this opening statement as to what

evidence the State intended to present, and rebut this anticipated prosecutorial evidence

during the State’s case-in-chief as opposed to waiting until his case-in-chief. We thus

consider Garcia’s testimony about Avalos to be proper rebuttal evidence. Accordingly,

Garcia’s testimony did not open the door to the extraneous acts because the former

represented Lopez playing, under protest, a game that the State initiated in its opening

statement.89

3. Avalos’s Unobjected-to Testimony

The State further contends any error was rendered harmless for the following

reason:

[L]ong before Avalos took the stand, the jury had already heard testimony,
without any 404(b) objection, that Lopez was gay, that he was HIV positive,
and that he and Avalos had been in a long-term homosexual relationship.
In addition, they heard unobjected-to argument that Lopez did not tell Avalos
that he was HIV positive when they were having unprotected anal sex.

The State is incorrect in asserting that the jury “heard unobjected-to argument that Lopez

did not tell Avalos that he was HIV positive when they were having unprotected anal sex.”

Lopez’s counsel raised a Rule 404(b) objection to such testimony before it was admitted

through Avalos. The trial court heard counsel’s objection outside the presence of the jury,

thus eliminating the necessity of counsel repeating the objection when the court admitted

89
See Drew, 777 S.W .2d at 76. If we have m isapplied Powell’s holding in the instant case, we wonder
what would result if Lopez’s counsel had not proffered rebuttal testim ony from Garcia, but had sim ply rebutted
the extraneous acts during Lopez’s opening statem ent. If this had occurred, would Powell operate to defend
the State’s adm ission of the extraneous acts? Furtherm ore, we observe that if Garcia’s testim ony did open
the door to Avalos’s testim ony, the door would only be open to Avalos testifying about whether he was aware
of Lopez’s HIV status at the start of their sexual relationship. The door would not be open to testim ony on
Lopez’s and Avalos’s condom usage together, for Garcia never testified on this m atter.

36
the evidence.90 The State emphasizes that Avalos testified, without objection, that he had

oral and anal sex with Lopez, and that he did “[p]retty much everything in the book” with

Lopez. This testimony—along with Avalos’s testimony that Lopez is a homosexual who is

HIV-positive—is not “same or similar” evidence of the extraneous acts, however, because

the former is critically distinguishable in two critical respects: (1) it makes no reference to

the sex being unprotected; and (2) it makes no reference to Lopez subjecting Avalos to the

risk of acquiring HIV from him without Avalos’s knowledge.91 Accordingly, we find the trial

court’s error in admitting the extraneous acts was not rendered harmless.

D. Assessing the Error’s Potential Harm

The admission of the extraneous acts constitutes non-constitutional error,92 which

again means that we will disregard the error if it does not affect Lopez’s substantial rights.93

As fully explained in our discussion of Lopez’s first issue, substantial rights are not affected

by the erroneous admission of evidence if the appellate court, after examining the record

as a whole, has fair assurance that the error did not influence the jury, or had but a slight

effect.94 The influence and harm that may result from a trial court’s admission of a

defendant’s extraneous offenses or bad acts was fully discussed by the court of criminal

90
T EX . R. E VID . 103(a)(1) (“W hen the court hears objections to offered evidence out of the presence
of the jury and rules that such evidence be adm itted, such objections shall be deem ed to apply to such
evidence when it is adm itted before the jury without the necessity of repeating those objections.”).

91
See generally Thomas v. State, 621 S.W .2d 158, 164 (Tex. Crim . App. 1981) (reasoning
inadm issible evidence was rendered harm less because sam e or sim ilar evidence was introduced elsewhere
without objection).

92
See Ladd v. State, 3 S.W .3d 547, 568 (Tex. Crim . App. 1999) (applying non-constitutional harm
analysis to defendant’s claim that trial court erred in adm itting extraneous offense evidence).

93
T EX . R. A PP . P. 44.2(b).

94
Motilla, 78 S.W .3d at 355.

37
appeals in Abdnor v. State:

It is now axiomatic that a defendant is to be tried only on the crimes
alleged in the indictment and not for being a criminal generally. Thus,
evidence of extraneous offenses or bad acts committed by the defendant
may not be introduced during the guilt/innocence portion of the trial to show
the defendant acted in conformity with his criminal nature. This is because
evidence of extraneous offenses is inherently prejudicial, tends to confuse
the issues in the case, and forces the accused to defend himself against
charges which he had not been notified would be brought against him. . . .

....

We have consistently acknowledged that the introduction of
extraneous offenses to the jury is inherently prejudicial, and hence, harms
the defendant, because it requires the defendant to defend against not only
the offense charged but also his uncharged actions. The admission of
extraneous offenses also prejudices the defendant because of the jury’s
natural inclination to infer guilt to the charged offense from the extraneous
offenses. . . .

. . . [T]he unlimited introduction of extraneous offenses similar to the
charged offense harms a defendant because the jury will inevitably presume
guilt from the extraneous offenses to the charged offense. We have
subsequently found in a number of cases that the admission of extraneous
offenses similar to the charged offense, and admitted without limiting
instructions, harmed the defendant because the jury was allowed to convict
on the assumption that the defendant was acting in conformity with a criminal
character.95

Because extraneous offense evidence carries with it the inherent risk that a defendant may

be convicted because of his propensity for committing crimes generally—i.e., his bad

character—rather than for the commission of the charged offense, courts have historically

been reluctant to allow evidence of an individual’s prior bad acts or extraneous offenses.96

In the instant case, the jury heard significant discussion of Lopez’s extraneous acts

95
871 S.W .2d 726, 738-39 (Tex. Crim . App. 1994) (footnotes and internal quotations om itted).

96
Owens, 827 S.W .2d at 914.

38
from the State, and, as a result, from Lopez. From the beginning of Lopez’s trial, the State

established its intent to make the extraneous acts an issue by referring to them during

opening statement, wherein the jury was informed that Lopez “repeatedly had anal sex with

Jeremiah without using any kind of protection,” and that Lopez “did not tell Jeremiah Avalos

that he was HIV positive.” This required Lopez to rebut the extraneous acts during his

cross-examination of the State’s first witness, Karen Garcia, who testified that Avalos had

always been aware of Lopez’s HIV status. The State’s fifth witness was Avalos, who

testified about the extraneous acts over Lopez’s objection. Avalos’s testimony relating to

the extraneous acts consisted of the following:

Q [THE STATE]. Okay. And let me ask you, when you began engaging in
anal sex with [Lopez], did he like to use a condom?

A. There was [sic] no condoms used.

Q. Okay. He did not use a condom?

A. Huh-uh.

Q. Okay. You never used a condom with him?

A. I’m pretty—say like maybe once, twice, but never consistently throughout
the relationship.

Q. Okay. Why didn’t he use a condom, did he ever tell you?

A. It was never brought up. It was just from the get-go never done, so just
never did it.

Q. Okay. When he was performing oral sex on you, were you wearing a
condom?

A. No, ma’am.

Q. Did there come a time in your relationship after you were having anal and
oral sex with him that he told you or did you ever learn he was HIV positive?

39
A. No, ma’am.

Q. Okay. When did you finally learn he was HIV positive?

A. The way it came about was we were in my bedroom, me, my mother and
my brother, and my brother had blurted out that [Lopez] had AIDS and, I
don’t know, it came to a shock because he never told me. I found out
through my brother because my cousin is his sister’s best friend and that’s
how it came across each other that he had AIDS and it got back to me.

Q. Okay. Did you confront the defendant?

A. Yes, ma’am. I confronted him about it. He never told me yes or no. It
was just understood that he did. Never apologized or nothing like that for it,
so. . .

Q. Okay. When you learned he was HIV positive, did you assume that you
were HIV positive?

A. Yeah. I thought my life was ruined after that. I mean, there was no need
for me to go get tested or nothing like that ’cause I was with him for so long.
I thought, hey, I already been in here for three years already, I know I have
it. I mean, there was a lot of unprotected sex between us, so I just thought
I had it. And due to my best friend, she told me that just go get tested.

....

Q. Okay. So did you then continue to be with him—

A. Yes, ma’am.

Q. —thinking you must be HIV positive, too?

A. Yes, ma’am.

Q. What were the exact words you used with me about how you felt about
yourself?

....

A. That my life was over. There was nothing else looking forward to, just
belong with him, I mean. I don’t remember my exact words, but I know it was
pretty much to the effect of nothing else left to live for. I mean, it was over.

Q. Okay. So you continued to be in a relationship with him?

40
 A. Uh-huh, yes, ma’am.

Q. Okay. And at some point, did you finally go to be tested for HIV?

A. Yes. At the end of our relationship, I did do that and it came out negative.
So I knew it was finito with him.

Q. Okay. Were you surprised that you were negative?

A. To the point of tears.

Q. Okay. And how many times would you go to re-test yourself?

A. Every three to four months, and then after a year passed, the—one of the
workers over there had told me I could come back every six months because
the results were coming out pretty much clear.

Q. Okay. Did one of the workers kind of tell you to calm down?

A. Uh-huh.

Q. That you didn’t have to go that much to be tested?

A. Yes, ma’am.

Lopez then sought to rebut the extraneous acts through his cross-examination of

Avalos and his own direct examination, wherein Lopez sought to establish that his HIV

status was always known to Avalos. Lopez continued to rebut the extraneous acts during

closing argument, at which point his counsel told the jury:

Jeremiah Avalos. Now, here we have unrequited love, or, perhaps, lust. I
don’t know. But he’s so oblivious to [Lopez]’s illness that he’s never noticed
the medications in his refrigerator, or is it just that he doesn’t use butter?
You know, I don’t know. But you remember how he said, you know, gosh,
you know, occasionally he would use a condom. Now, ladies and
gentlemen—well, rephrase that, ladies, if you could not bear children and all
of a sudden your husband said he was going to use a condom, wouldn’t light
bulbs go off? Would you have some questions? Would you wonder why?
But, apparently, that escapes Avalos’ attention.

As I said, this is unrequited love. [Lopez] was rejected by Jeremiah

41
 or Jeremiah—[Lopez] rejected Jeremiah and now he’s going to pay him
back. . . .

The State then responded to Lopez’s closing by discussing the extraneous acts in its

rebuttal closing argument, stating:

Jeremiah was a virgin to anal sex, and he was a virgin to gay sex, until the
defendant. Jeremiah, told us that the defendant did not tell him, at first, that
he was HIV positive and has unprotected sex with Jeremiah without telling
Jeremiah that he was HIV positive. As you recall, Jeremiah had to hear, I
believe, through a cousin. And when he confronted the defendant, the
defendant said, Oh, — didn’t really say much.

Jeremiah, at that point, being the naive 17, 18 year old that he was,
decided, I must also be HIV positive, because we’ve had anal sex so many
times without a condom. So, at that point, he just didn’t get tested, until they
broke up, and then he was tested and he was very lucky and was not HIV
positive. But this defendant even lied to Jeremiah.

We first observe that the extraneous acts clearly prejudiced Lopez by forcing him

to defend against the offenses charged and the uncharged actions. Time was spent

rebutting the extraneous acts during Garcia’s, Avalos’s, and Lopez’s testimony, as well as

during closing argument. Rebutting the extraneous acts to this extent was necessary

because the State essentially presented Avalos as Lopez’s second victim. The State

questioned Avalos about the emotional toll placed upon him as a result of Lopez’s failure

to disclose his HIV status. Avalos told the jury that he felt his “life was ruined,” his “life was

over,” “[t]here was nothing else to look forward to,” and “nothing else to live for.” The

State’s questioning prompted Avalos to testify that he was “[t]o the point of tears” when he

learned he did not have HIV, but was plagued with worry during the time he continued to

be retested for the virus. During closing argument, the State portrayed Avalos as one of

Lopez’s victims, describing him as a “naive 17 or 18 year old” who “was a virgin to gay sex,

until the defendant.”

42
 Second, the State’s actions created the very real possibility that a juror would lose

sight of specific issues he or she was called upon to decide, and would instead convict and

punish Lopez for the extraneous acts.97 Lopez’s extraneous acts gave the jury two things

to consider: (1) the harm that was (and could have been) inflicted upon Avalos; and (2)

the harm that could be inflicted upon others should Lopez continue to have consensual sex

without a condom while failing to inform his sexual partners of his HIV status. The State

brought the latter consideration to the forefront of the jury’s attention at two points in its

closing argument. The first point occurred when the State raised the improper jury

argument discussed earlier, wherein the State suggested that Lopez had sexually

assaulted John because of a failed sexual encounter with someone earlier that day. This

argument invited the jury to speculate that Lopez engages in casual sexual encounters,

which would in turn invite the jury to speculate as to whether Lopez would silently subject

his partners to the risk of contracting HIV. The second point in the closing was more direct;

it was the final message the State had for the jury: “Lastly, the very last thing I’d like to

leave with you is that your guilty verdict will keep this predator, chicken hawk off our streets

and prevent him from further contributing to the increase in the epidemic of AIDS.”

Third, it is conceivable that the jury improperly relied on the extraneous

acts—specifically, Lopez’s practice of not using a condom during sexual activity with

Avalos—to find beyond a reasonable doubt that Lopez did not use a condom in the course

of sexually assaulting John. The State sought to prove to the jury that Lopez failed to wear

a condom during the sexual assault in order to establish the aggravated element of the

97
See Montgomery, 810 S.W .2d at 397.

43
charged offenses. And the State’s direct examination of Avalos—composed of five

questions relating to Lopez’s condom usage with Avalos—clearly demonstrated the State’s

intent to utilize the extraneous acts to accomplish this objective.

Fourth, Lopez’s alleged failure to inform Avalos of his HIV status prior to engaging

in sexual activity evidenced Lopez’s reckless disregard for human life in the course of

satisfying his sexual desires—a reflection undiminished by the fact that Avalos did not

acquire HIV.98 Once the extraneous acts were before the jury, the State emphasized

Lopez’s disregard by having Avalos testify that he never received an apology from Lopez,

and by later repeating that testimony during closing argument. Placed in the context of a

trial for aggravated sexual assault of a child, such evidence was calculated to weigh heavily

on the jurors’ minds.99 Under the facts of this case, the admission of Avalos’s testimony

regarding the extraneous acts, admissible for no other purpose than character conformity,

may have had the practical effect of prejudicing any defense raised by Lopez regarding

John’s credibility. Such an effect would have been detrimental to Lopez, who sought to

discredit John at trial by pointing out factual variances in his outcries, and by suggesting

that John was motivated to fabricate the assault to avoid being schooled in the Alternative

Education Program.

Fifth, the extraneous acts adversely affected Lopez’s credibility because the acts

reflected Lopez’s capacity to lie. The State made sure to remind the jury in its closing that

Lopez “even lied to Jeremiah.” This point was significant for the State in discrediting

98
See also Atkins, 2008 Tex. App. LEXIS 5407, at *22.

99
See Blakeney v. State, 911 S.W .2d 508, 517 (Tex. App.–Austin 1995, no pet.).

44
Lopez, for if Lopez was capable of lying to his long-term partner on a matter that put his

partner’s life at jeopardy, the jury could infer that Lopez was more than capable and willing

to lie to them about the charges against him. The extraneous acts indicated to the jury that

Lopez is not truthful when his sexual activity is at issue.

The significance of this final point, however, is arguably mitigated by the fact that

the jury had reason to question Lopez’s truthfulness even if the extraneous acts were not

admitted. Garza, the investigator, testified that he interviewed Lopez in the course of his

investigation, from which he obtained a written statement from Lopez stating the following:

I have been asked if I know a young man by the name of [John] and
I do not know who that person is. I was told that he has made an allegation
that in June 2004 I gave him a ride in my white Dodge Intrepid from a bus
stop to some friends’ house on Franklin Street in Corpus Christi. I was also
told that [John] later called my cell phone and asked me to go pick him up.
I was told that he stated I took him to an apartment (either 2016 or 2006) at
the Sutton Place Apartments where I gave him some liquor. He claims that
he passed out and I had oral sex with him and possibly anal sex.

I do not recall the name of [John] and I do not remember meeting
anyone by that name. I would never pick someone up who I have never met
before from a bus stop. I am not in the habit of doing that. I did not have
oral sex or anal sex with [John] or anyone else. . . .

. . . I date girls and I do not go out with guys. I do not know why this
person would say that I did this to him because I did not do this to him. I did
stay in apartment #1705 at the Sutton Place Apartments. The apartment
was being leased by my friend, Karen Garcia. During the month of June
2004 I would occasionally go and spend the night. She later let me take over
the lease on the apartment. I began to live there permanently about mid July
2004. . . .

Lopez testified at trial that he lied about his sexual preference in the statement because

he did not know Garza and he is a private person. Lopez also testified that, at the time the

statement was made, he did not remember hanging out with John, nor fully moving into the

Sutton Place Apartments in June 2004 (rather than “mid July”), because more than three

45
months had transpired since those events. In addition to the statement, Lopez’s cell

phone records revealed that, on the night in question, outgoing calls were made from his

phone late into the night. Lopez, however, testified that he went to sleep before those calls

were made, and neither he nor John claimed responsibility for the calls.

E. Was the Error Harmful?

“We are not concerned here with whether there was sufficient evidence on which

[Lopez] could have been convicted without the evidence complained of. The question is

whether there is a reasonable possibility that the evidence complained of might have

contributed to the conviction.”100 As the United States Supreme Court explained in

Kotteakos v. United States:

[I]f one cannot say, with fair assurance, after pondering all that happened
without stripping the erroneous action from the whole, that the judgment was
not substantially swayed by the error, it is impossible to conclude that
substantial rights were not affected. The inquiry cannot be merely whether
there was enough to support the result, apart from the phase affected by the
error. It is rather, even so, whether the error itself had substantial influence.
If so, or if one is left in grave doubt, the conviction cannot stand.

The Supreme Court has defined “grave doubt” to “mean that, in the judge’s mind, the

matter is so evenly balanced that he feels himself in virtual equipoise as to the

harmlessness of the error.”101 If the reviewing court is unsure whether the error affected

the outcome, the court should treat the error as harmful, that is, as having a substantial

and injurious effect or influence in determining the jury’s verdict.102

Due to the five aforementioned concerns and the reasoning expressed therein, we

100
Fahy v. Connecticut, 375 U.S. 85, 88 (1963).

101
O’Neal v. McAninch, 513 U.S. 432, 434 (1995).

102
Id.

46
have a “grave doubt” that the jury’s guilty verdict was free from the substantial influence

of the extraneous acts. The evidence of guilt in this case is not overwhelming—there was

no physical evidence and Lopez and John were the only witnesses to the alleged assault.

The record reveals that while the jury was deliberating Lopez’s guilt or innocence, two jury

notes were sent to the trial court requesting guidance on the meaning of “reasonable

doubt”—possibly reflecting the difficulty some jurors had in finding Lopez guilty. In this

case, as in almost any case, “[i]t is difficult to determine what evidence influenced the jury

in reaching [its] criminal verdict, without such a judicial incursion into the mental processes

of jurors.”103 This reality, coupled with the extraneous acts’ great potential to disrupt the

juror’s orderly evaluation of the evidence, causes us to seriously question whether the

jurors were properly able to apply law to facts in order to reach a just verdict.104

Finally, while in no way attempting to impugn the integrity of the
prosecuting attorneys throughout the State of Texas, holding such error
harmless under the circumstances in the record before us could be
interpreted as a signal to even the most well-intentioned prosecutor that,
given the inherent subjectivity of harmless error analysis, any alleged
perpetrator of such a repulsively violent crime deserves to be prosecuted as
aggressively as the “law allows.” We cannot deny nor fault this type of
prosecutorial rationalization, but neither can we permit this Court to be an
indirect participant in it.105

Unsure whether the erroneous admission of the extraneous acts affected the jury’s

verdict, we are obligated to treat the error as harmful. Lopez’s third issue is therefore

103
Alvarado v. State, 775 S.W .2d 851, 857 (Tex. App.–San Antonio 1989, pet. ref’d).

104
See generally Harris v. State, 790 S.W .2d 568, 587-88 (Tex. Crim . App. 1989) (“[T]he reviewing
court should focus not on the weight of the other evidence of guilt, but rather on whether the error at issue
m ight possibly have prejudiced the jurors’ decision-m aking; it should ask not whether the jury reached the
correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a
verdict.”).

105
Bishop, 837 S.W .2d at 436-37 (citation om itted).

47
sustained.

V. CUMULATIVE HARM

The court of criminal appeals has stated that “[a] number of errors may be found

harmful in their cumulative effect.”106 In the instant case, we have already ascertained that

the error raised in Lopez’s third issue, by itself, creates a “grave doubt” as to whether the

jury’s guilty verdict was free from the substantial influence of that error. Nevertheless, we

observe that this doubt becomes more grave when we consider the cumulative harm of the

errors discussed in Lopez’s first, third, and fifth issue.

VI. CONCLUSION

“Society wins not only when the guilty are convicted but when criminal trials are fair;

our system of the administration of justice suffers when any accused is treated unfairly.”107

With this tenet in mind, we reverse the trial court’s judgment and remand the case for a

new trial.108

LINDA REYNA YAÑEZ,
Justice

Publish. TEX . R. APP. P. 47.2(b).
Opinion delivered and filed this the
26th day of March, 2009.

106
Feldman v. State, 71 S.W .3d 738, 757 (Tex. Crim . App. 2002).

107
Brady v. Maryland, 373 U.S. 83, 87 (1963).

108
Our disposition obviates the necessity for discussion of Lopez’s second and fourth issue. These
issues, which concern the denial of a m otion for new trial and an error at the punishm ent phase of Lopez’s
trial, would neither add to our cum ulative harm analysis, nor afford Lopez any greater relief than already
afforded herein.

48