dissenting.
The majority overrules the appellant’s first two points of error based on its conclusion that whether one is a pedophile or has a sexual preference for small children are not “character traits.” This conclusion, however, is unsupported by any specific authority and deprives appellant of his right to put on a complete defense. The trial court erred in refusing to allow appellant to elicit testimony as to his reputation for being a “non-pedophile” and not having a sexual preference for children, and that error was made harmful by the state’s improper argument to the jury. Therefore, I respectfully dissent.
The Error
A defendant in a criminal proceeding is entitled to due process of law, due course of law, and a fair trial. See U.S. Const. art. 5, 14; Tex. Const, art. 1 § 19. Inherent in these rights is the right to present a defense by calling witnesses and presenting evidence. See Washington v. State, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
In the present case, the only issue before the jury was whether appellant sexually assaulted the children. While the state presented physical evidence that the children had been sexually assaulted, there was no physical evidence identifying or eliminating appellant as the person responsible for the assault. The only evidence specifically implicating appellant in the sexual assault of the children came from the testimony of the children themselves. In presenting his defense, appellant was faced with the difficult task of trying to prove a negative. In other words, he had to try to convince the jurors that, despite the testimony of the children, he had not sexually assaulted them. Given the lack of physical evidence, appellant had nothing to rely on other than his own testimony and the testimony of others as to his character and reputation. Understandably, appellant chose to make his character and reputation an issue in the case, as is his right under Tex.R. Evid. 404. After offering his own testimony, appellant attempted to present character evidence that he did not have a reputation for being a pedophile or having a sexual preference for small children, thus making it unlikely that he committed the sexual assaults. The trial court, however, refused to ahow appellant the opportunity to present this evidence which was crucial to his defense, and, despite appellant’s complaints, the majority now upholds the trial court’s limitation of appellant’s defense. I cannot agree.
The majority admits that “whether appellant is a ‘non-pedophile’ is pertinent to the offense charged.” However, the majority’s holding is based on an unsupported assertion that being a non-pedophile is not a “character trait.”1 Not only is this assertion unsupported by any authority, but more importantly, it flies directly in the face of logic. Under the majority’s analy*523sis, the following illogical results would occur: (1) testimony about a defendant’s reputation for sobriety would be allowed, while testimony that the defendant had a reputation for not drinking alcohol would be excluded; (2) a defendant on trial for fraud could put on a witness to testify about his reputation for honesty and fair dealing, but not his reputation for not lying to or cheating those he dealt with; (3) someone charged with murder could bring in witnesses to testify as to his reputation for peacefulness, but would be denied the opportunity to ask the same witnesses about his reputation for being non-violent towards others. All of these situations have one thing in common — they are distinctions without a difference. So too is the majority’s analysis in the present case. Under this same majority’s express holding in In the Matter of G.M.P., it is reversible error for the trial court, in a sexual assault case, to exclude testimony that the defendant has a reputation for the safe and moral treatment of children. 909 S.W.2d 198, 207-208 (Tex.App.—Houston [14th Dist.] 1995, no pet.). Yet under the same circumstances in the present case, the trial court does not err when it excludes testimony that the appellant has a reputation for not being a pedophile and not having a sexual preference for children. And what reason is appellant given for this denial of his due process rights— that, while “undoubtedly” pertinent, not being a pedophile and not having a sexual preference for children does not fall into the majority’s definition of a “character trait.”2 I believe that the majority would be hard pressed to find anyone who would agree that not being a pedophile and not having a sexual preference for children do not qualify as positive character traits. Simply put, there is no relevant distinction between the “safe and moral treatment of children” and not being a pedophile or not having a sexual preference for children. While there may be a slight distinction in form, that distinction does not justify ignoring the substance of what was asked and depriving appellant of a well-established due process right.
As stated earlier, the lack of physical evidence directly implicating or exonerating appellant of sexual assault forced appellant to base his entire defense on his testimony and the testimony of others as to his character and reputation. Given the lack of authority directly addressing the issue, the question of whether “not being a pedophile” and “not having a sexual preference for children” qualify as “pertinent character traits” under rule 404(a)(1) is, at best, a close call. While the majority errs of the side of upholding the trial court, I would instead err on the side of upholding the appellant’s due process rights. Therefore, I would find that the trial court erred in excluding the testimony offered by appellant.
The Harm
One need look no further than the State’s final argument to find harm. After the trial court refused to allow the appellant to present testimony that he had a reputation for not being a pedophile and not having a sexual preference for young children, the court overruled the appellant’s objection to the State’s characterization of the appellant as a pedophile. The harm in this situation is so evident that it cannot be ignored. What is remarkable about the majority opinion is the inconsistency of its holding. On one hand, the majority condones the trial court’s denial *524of appellant’s attempt to put on testimony that he is not a pedophile and does not have a sexual preference for young children. Then, they immediately turn around and hold that the State’s argument that appellant is a pedophile was not improper because there was testimony that he sexually assaulted three young boys— thus making it a reasonable deduction from “the evidence.” Unfortunately for the appellant, however, the trial court precluded him from including as part of “the evidence” testimony that was critical and relevant to his defense. Therein lies the harm — the jury convicted the appellant without having heard all of the evidence. The trial court’s actions violated appellant’s due process rights by preventing him from presenting a complete defense, and the judgment should be reversed and remanded for a new trial.
. The only authority cited by the majority are "examples” of character testimony allowed'by other courts. These cases, however, provide no authority for the majority’s assertion that "being a non-pedophile is not a ‘character trait.’ "
. It is interesting to note that the State does not even make the argument that the majority relies on today. In fact, the implicit language of the State’s brief does not support the majority’s conclusion that whether one is a pedophile is not a character trait. In its brief, the State argues that "[a]t the time the appellant’s brother testified, the State had not made a claim that the appellant was a pedophile; therefore, whether or not he was a pedophile was not a 'pertinent trait’ of the appellant’s character at the time that appellant’s brother testified.” It is hard to ignore the fact that the Slate essentially concedes that being a pedophile is a character trait, but argues that the trait was not a "pertinent trait” under rule 404 at the time the testimony was offered.