dissenting.
I respectfully dissent from the majority’s disposition of the appellant’s contentions regarding the severance issue. Armando Simon, by his ninth and tenth points of error, and Angela Simon, by her second, seventh, eighth, and sixteenth points of error, contend that the trial court erred in refusing to grant their motions for severance. I agree and would reverse both convictions.
The record before us does not contain a transcript of any pretrial hearing on appellants’ motion for severance. Thus, it could be argued, as the majority holds, that the severance complaints were waived, because there is no showing that evidence was presented in support of the motions to sever before the trial commenced. See Tex. Code Crim.P. art. 36.09 (Vernon 1981). But the majority ignores the critical fact that the State does not contend now, nor did it contend at trial, that the complaints were waived, and both motions to sever were urged and frequently reurged, without objection, during the course of the two-week joint trial. The record reflects that both the trial court and the State were fully aware of the contents and nature of the motions to sever, and, as evidence was adduced and the motions were reurged, the court continuously considered the motions presented. At no point did the trial court complain that it did not have enough evidence on the motions before it, pursuant to art. 36.09, Tex.Code Crim.P. For the majority to overrule the appellants’ severance complaint on this tenuous ground, which the State itself did not urge, is a triumph of formalism over substantive due process. During the latter stages of the guilt phase of trial, the court finally overruled both motions. The record indicates that the trial court did not overrule the motions on the ground that they were untimely, or that it had heard no evidence, but rather because the circumstances did not require separate trials. I will consider the appellants’ respective motions for severance, therefore, in the light of the evidence in the record at the time they were denied during trial.
In their motions to sever, both appellants essentially assert that their defenses are so antagonistic that a joint trial would be prejudicial and unfair. Angela Simon’s motion asserts that most of the alleged sexual incidents concern only Armando Simon’s activities and that her defense would be prejudiced by evidence relating solely to *326those incidents. Armando Simon’s motion alleges, inter alia, that a joint trial would be prejudicial because Angela Simon’s diary, if admitted into evidence, would be considered by the jury as Angela Simon’s confession that both appellants participated in sexual activities with the complainant.
A portion of the diary written by Angela was admitted in support of her defensive theory that she was not a party to the offense, and that she was not aware of any sexual relationship between her husband and the complainant. Her testimony attempted to explain statements made in the diary as the product of a wife’s emotional state of jealousy of the attention being paid to the complainant, and her distress at a perceived diminished attention to herself. She testified in effect that she did not know of any sexual liaison between her husband and the complainant, and that she believed that no such relationship existed. However, the diary statements themselves, admitted into evidence, are equally subject to the interpretation that such a relationship in fact existed and that she was aware of it. Although her testimony tended to exculpate both defendants, the statements in the diary — hearsay as to Armando, beyond any question — could reasonably be read as directly implicating Armando in the offense for which they were both charged. See United States v. Romanello, 726 F.2d 173, 179 (5th Cir.1984).
Another instance demonstrating prejudice to both parties was the admission of certain photograph albums. These albums contained a number of pictures of nude, unidentified females, described as Armando’s former girlfriends before his marriage. Some of these pictures also depicted Armando nude, engaging in sexual conduct with various females. Later pictures included Angela semi-nude. Two pictures displayed Angela and another nude woman, and one picture portrayed them in a position suggesting sexual conduct between the two. The albums were admitted as evidence of the means used to induce the complainant, who testified that they had made her curious, eventually to engage in sexual relations with Armando. Although I tend to agree with the trial court’s threshold determination that the evidence was relevant, albeit peripherally, to the question of inducement, and thus pertinent to the charge against Angela under the law of parties, the probative value of the pictures appears to be slight compared to the subtle but influential prejudice caused in the course of trial by their admission. Cf. Lewis v. State, 676 S.W.2d 136, 140 (Tex.Crim.App.1984). None of the pictures are alleged to protray underage or non-consenting women, which would tend to make Armando’s commission of the offense more probable. See, e.g., Williams v. State, 662 S.W.2d 344, 347 (Tex.Crim.App.1983). The pictures are, perhaps, not inflammatory, but I think it fair to say that they are prejudicial.
However, of more serious concern is the potential inflammatory effect caused in particular by the photographs of Angela with another woman. In the course of trial, the prosecutor introduced hearsay testimony that Armando had told a third party that his wife was a bisexual and “that she once got a feather up her nose and had to go to Houston.” 1 An objection was sustained on the basis that such hearsay was irrelevant, and the court gave an instruction to the jury to disregard the statement.
Later in the course of trial, the subject again arose. Angela testified that she was not bisexual and attempted to explain that the picture was taken at a moment when she was trying to climb over the woman to escape the camera. On cross-examination, the prosecutor attempted to impeach Angela by questions regarding alleged homosexual activities with other women, subsequent to the arrest for the instant offense. The questions were, at first, permitted for *327the limited purpose of determining credibility. Further objections were sustained, and one instruction to disregard was given. In a lengthy conference out of the presence of the jury, the trial court observed the pre-existing link with the photographs introduced by the State. The court also observed that the prosecutor was introducing evidence of dubious relevance that was “inflammatory as hell,” at the risk of “trying everybody’s character in this case.” The trial judge clearly stated his reasons for sustaining the defense objection to the prosecutor’s questions about homosexual activities, but no instruction appears to have been given to the jury when it returned.
The trial record demonstrates that the appellants’ concerns that a joint trial would be prejudicial were justified. A great deal of the evidence presented by the State did relate solely to the sexual activities of the complainant and Armando Simon, all of which occurred outside the presence of Angela Simon. Also, when Angela Simon offered her diary into evidence, to show that she had not voluntarily encouraged the complainant to become sexually involved with her husband, her memoirs were moderately exculpatory as far as she was concerned, but they clearly constituted prejudicial hearsay as to Armando Simon, tending to show his sexual involvement with the complainant.
I recognize that the trial court’s ruling, which denied both motions for severance, must be upheld unless a clear abuse of discretion is shown. Robinson v. State, 449 S.W.2d 239, 240 (Tex.Crim.App.1969). The appellants are required to clearly demonstrate that they were prejudiced in order to establish an abuse of discretion. Foster v. State, 652 S.W.2d 474, 477 (Tex.App.—Houston [1st Dist.] 1983), aff'd, 693 S.W.2d 412 (Tex.Crim.App.1985).
The record indicates that the trial court gave thoughtful and continuing consideration to the appellants’ motions for severance, and that the court earnestly tried to prevent prejudice to one or the other of the appellants, by frequently giving admonitory instructions to the jury. Thus, the question presented is whether the record, considered in its entirety, shows that notwithstanding these instructions, the jury was probably unable to keep separate the evidence relevant to each of the appellants and to render a fair and impartial verdict as to each of them. See United States v. Welch, 656 F.2d 1039, 1053-54 (5th Cir.1981).
Considering all the circumstances before us, I conclude that the record does demonstrate such prejudice and that both convictions should be reversed. My conclusion is not based on any single portion of the case, but on the cumulative effect of various testimony and evidence presented. Under the cumulative effect of various statements by one defendant against the other and of evidence directed against only one or the other defendant, but not both, the admonitory instructions may well have lost their meaning and effectiveness. A very substantial probability exists that the evidence of the offense charged became submerged and confused in the evidence of an unusual sexual lifestyle, to the extent that a fair and impartial determination of the guilt or innocence of either defendant was adversely affected.
Nowhere is this probability more clearly illustrated than in the following portion of the prosecution’s final argument:
Members of the jury, there’s no better example, none whatsoever, of the openness of this particular marriage as it dealt with the topics of sexuality as these photo albums did. That is indicative, that is reliable evidence of how they felt about sex and sexuality and the place it had in their lives. Its place is among the photographs of friends, relatives and events, that’s the place that it occupies, and I’m not singling it out just because it exists, I’m singling it out to provide you with evidence of the intent, from the evidence, of the continuing course of conduct of Armando and Angela Simon and you know that, you knew it when you saw the photographs the first time. You knew what kind of people you were dealing with when you saw that and you know it’s trash and it’s trash that doesn’t *328belong in a photo album with other family pictures.
There’s been a great deal of cross-examination and even some argument about love and sex, passion and sex, I guess that ignores the many marriages in our community where sex is involved, but there’s no longer any love and I have another fear about promiscuity; if you look at the Court’s charge, it’s [sic] con-nates [sic] consenting to sexual intercourse with a variety of partners. Where does a separated and divorced woman or man fit in? Are they promiscuous?
The phrase, “Normal jealous wife” was used. I submit, members of the jury, that we are not dealing with the normal man or woman standard. I submit that, from the evidence in this case, that you cannot apply — you cannot apply what is normal, what is accepted, what you normally accept as standards of conduct. You cannot apply that to Angela and Armando Simon because of the evidence in this case. It doesn’t apply. The photo albums are concrete proof that the defendants don’t treat the act of sexual intercourse and they don’t treat nudity in the same light as you and I, the normal person. You and I, the normal person, they give it more significance, more special treatment in their minds than you or I.
They’re are [sic] not held — the photographs are not held in the same regard as you and I. Wouldn’t it be the normal person’s standard, the normal person’s course of conduct, to take that picture of Armando and who else, and those two persons, Angela and that other female who were escaping from the camera and if you truly do not want anyone to see it, you put all of them in one particular album where you are certain no one will handle it or see it or knows where it is, but you don’t sprinkle it throughout your family albums.
And trying to analyze, not only before trial, but in trying to analyze all of the evidence presented, I submit that, from the facts, it is clear that we really are dealing with totally, a lifestyle of Angela and Armando Simon that is reflected in the albums, the gag gifts, the cards, the teenaged girls, the games they played with teenagers and the deviations, their favorite movies, their fantasies, they permeated their entire lifestyle and helps you decide specifically and accurately what their intent was when they involved themselves with D_to the very end. It helps you to do that and you do not have to be ignorant of that, you do not have to ignore it and you do not have to assume that if you single out each of the other items, that it simply washes away the ugliness in this particular trial and a lifestyle that’s not normal, a lifestyle that’s not accepted.
******
It’s [gone] the other way. It cuts the other way. There’s a burden, but you know, there’s a burden far higher than the burden I have, beyond a reasonable doubt. If you want to know that burden, it’s the burden to be truthful. It’s not in the Court’s charge, but when you get over here to this lady and you raise your right hand and you swear to God to that oath, that burden is a lot higher than mine and I submit too, Angela Simon didn’t make it. I submit that the Bible to [sic] Angela and Armando Simon lived by is the photo albums, that’s the truth they swear by, that’s the truth they use to encourage young girls in our community to involve themselves in—
[DEFENSE COUNSEL FOR ANGELA SIMON]: Your Honor, I’m going to object to him talking about young girls. The indictment talks about D_ H_and I object to him going outside the record in that regard.
THE COURT: I overrule that.
Go ahead.
[PROSECUTOR]: That’s their truth and that’s the truth that’s woven into the fabric of their existence just like the threads that are engrained, that generally pulls everything and holds everything together, whether it be Christmases that you recall as I do, or gag gifts, or photo albums or diary writings; that’s the threads by which they exist, it’s the axis *329by which their world turns and I didn’t create it and you didn’t create it.
As illustrated, the cumulative admixture of prejudicial facts relating to the sexual lifestyle of the appellants, and the specific accusation of appellants’ sexual assault of a child, so blurred the actual legal issues in the case, and the defense of each appellant became so antagonistic to the other, as to deprive each appellant of an independently fair and impartial trial. I conclude that this calculated confusion so significantly undermined the reliability of the factfind-ing process as to vitiate the fundamental fairness of the trial.
The record shows that during the course of trial, it became increasingly difficult, if not impossible, for the jury to collate and appraise the independent evidence against each defendant, solely upon that defendant’s own acts. It seems equally highly improbable that the jury was able to keep separate the evidence relevant to each defendant, and not relate it to the co-defendant, so as to be able to render a fair and impartial verdict as to each defendant, independently. See United States v. Welch, 656 F.2d at 1053-54. The record demonstrates such clear and harmful prejudice to both defendants that an abuse of discretion is shown, requiring me to dissent from the majority’s refusal to sustain Armando Simon’s points of error 9 and 10, and Angela Simon’s points of error 2, 7, 8, and 16.
In other points, the appellants contend that the court erred in allowing Angela Simon to introduce her diary into evidence over Armando Simon’s objection; in unfairly imposing upon the appellants' counsel an election, either to call all three defense witnesses examined by the court in-camera regarding complainant’s prior sexual activity, or suffer a ruling that none of the witnesses would be permitted to testify; in admitting prejudicial conversations by third-party witnesses with Armando or Angela Simon, that constituted hearsay as to one or the other appellant; in admitting into evidence photograph albums containing pictures of Armando Simon and nude women, that were not relevant to the issues in the case; and in permitting the State to go into matters on cross-examination that were beyond the scope of the direct examination and that allegedly prejudiced the appellants’ cases.
The cumulative effect of these matters, when considered in light of the circumstances relating to the appellants’ motions to sever, obviously created a trial atmosphere that was prejudicial to both appellants, and thus is related to the fundamental issue of whether the appellants received a fair and impartial trial. In my judgment, the refusal of the trial court to grant the severance generated such confusion, prejudice, and irrelevance as to contaminate the entire trial beyond remedy.
Considering the prosecutor’s incendiary summation, it seems appropriate, but perhaps trite, to observe that we must fastidiously preserve the distinction between sin and crime at peril of losing our secular democracy. The Texas judicial system does not consist of ecclesiastical tribunals established or operated to preserve traditional lifestyles, social and theological orthodoxy, or to punish sin or heresy, but rather of secular courts committed to the pursuit of justice by application of the law, through rules of evidence, in fair and impartial trials. Reprehensible or shocking conduct should be condemned in any civilized society, certainly, but it is not ipso facto punishable unless specifically defined as criminal by our Penal Code. Sexual assault of a child should be and is clearly criminal, whereas “hedonism” is not, and the line between the two cannot constitutionally be blurred. It is specific crime, precisely defined, not hedonism or sin or unorthodoxy, that our Texas courts are authorized to adjudicate and punish.
For the reasons stated, I would reverse the judgment of the trial court and remand the cause for a new trial.
. The trial record suggests that this statement was interpreted figuratively to mean, in essence, seized of an impulse or desire, arising from bisexuality, which was somehow alleviated by a trip to Houston. On the contrary, the briefs suggest a literal interpretation of removal of a foreign object at a Houston hospital; however, the jury was not privy to the latter interpretation.