No. ______________

In the

Court of Criminal Appeals

At Austin 



No. 01-12-01125-CR

In the

Court of Appeals

For the

First District of Texas

At Houston



No. 1068173

In the 209th District Court

Of Harris County, Texas



GARY WAYNE WILSON

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S PETITION FOR DISCRETIONARY REVIEW



DEVON ANDERSON

District Attorney 

Harris County, Texas 

JESSICA AKINS

Assistant District Attorney 

Harris County, Texas 

1201 Franklin, Suite 600 

Houston, Texas 77002 

Telephone: 713.755.5826 

Fax: 713.755.5809 

akins_jessica@dao.hctx.net 

Counsel for Appellee 

ORAL ARGUMENT REQUESTED

PD-1662-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 12/29/2014 4:04:18 PM

Accepted 12/30/2014 10:46:11 AM

ABEL ACOSTA

CLERK
i

IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. APP. P. 68.4(a), a complete list of the names of all 

interested parties is provided below.

Victim:

K.M., a child victim under the age of 14

Counsel for the State:

Devon Anderson, District Attorney of Harris County

Jessica Akins, Assistant District Attorney on appeal

Paul Fortenberry & Lisa Bailey, Assistant District Attorneys at trial

1201 Franklin, Suite 600, Houston, Texas 77002

Lisa McMinn, State Prosecuting Attorney

P. O. Box 13046, Austin, Texas 78711

Appellant or criminal defendant:

Gary Wayne Wilson

Counsel for Appellant:

Charles Hinton, Ken Goode  Counsel at trial 

Charles Hinton, Counsel on appeal

P.O. Box 53719, Houston, Texas 77052

Trial Judge:

Honorable Michael T. McSpadden, Presiding Judge
ii

TABLE OF CONTENTS

IDENTIFICATION OF THE PARTIES ..............................................................................iii

INDEX OF AUTHORITIES...................................................................................................iii

STATEMENT REGARDING ORAL ARGUMENT..........................................................1

REASONS FOR REVIEW........................................................................................................1

STATEMENT OF THE CASE................................................................................................ 2

STATEMENT OF THE PROCEDURAL HISTORY ........................................................ 2

STATEMENT OF FACTS ....................................................................................................... 2

FIRST GROUND FOR REVIEW..........................................................................................4

The First Court of Appeals erred by utilizing the constitutional 

harm standard when evaluating an evidentiary ruling. 

SECOND GROUND FOR REVIEW.................................................................................... 7

The First Court of Appeals erred in finding the excluded 

character evidence was appellant’s only defense and so vital to his 

defense that the exclusion was harmful under the constitutional 

standard. 

CONCLUSION .........................................................................................................................10

CERTIFICATE OF SERVICE ............................................................................................... 11

CERTIFICATE OF COMPLIANCE .................................................................................... 11
iii

INDEX OF AUTHORITIES

CASES

Potier v. State, 

68 S.W.3d 657 (Tex. Crim. App. 2002)........................................................................5, 6

Ray v. State, 

178 S.W.3d 833 (Tex. Crim. App. 2005).......................................................................5, 6

Wheeler v. State, 

67 S.W.3d 879 (Tex. Crim. App. 2002)............................................................................4

Wiley v. State, 

74 S.W.3d 399 (Tex. Crim. App. 2002)....................................................................5, 8, 9

Wilson v. State, 

No. 01-12-01125-CR, 2014 WL 6601218 

(Tex. App.—Houston [1st Dist.] Nov. 20, 2014, pet. filed)............................ 2, 3, 4, 6

RULES

TEX.R.APP. P. 66.3(c).................................................................................................................1

TEX.R.APP. P. 66.3(e).................................................................................................................1

TEX.R.APP. P. 68.2(a)...............................................................................................................2

TEX.R.APP. P. 68.4(a)................................................................................................................ i

TEX.R.APP. P. 68.4(d)................................................................................................................1
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 68.4(d), the State requests oral argument. 

Argument in this case is necessary because the court of appeals’ opinion is in 

conflict with at least two decisions from this Court, Ray v. State, 178 S.W.3d 833, 

835 (Tex. Crim. App. 2005) and Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 

2002) (erroneous evidentiary rulings rarely rise to level of denying fundamental 

constitutional right to present meaningful defense). And the First Court utilized 

dicta from this Court’s opinion in Wheeler to support its conclusion that the trial 

court abused its discretion in excluding character evidence. Wheeler v. State, 67 

S.W.3d 879, 882 (Tex. Crim. App. 2002). 

REASONS FOR REVIEW

This petition for discretionary review should be granted because the court 

of appeals has issued an opinion in conflict with decisions from this Court. See 

TEX. R. APP. P. 66.3(c). Further, the justices on the panel of the First Court of 

Appeals have disagreed on a material question of law necessary to the court’s 

decision. See TEX.R.APP. P. 66.3(e). 
2

STATEMENT OF THE CASE

Appellant was charged by indictment with the felony offense of aggravated 

sexual assault of a child. (CR 17). The jury found appellant guilty as charged in 

the indictment and sentenced him to confinement for life in the Institutional 

Division of the Texas Department of Criminal Justice. (CR VIII 2047, 2049). 

STATEMENT OF THE PROCEDURAL HISTORY

On November 20, 2014, a panel of the First Court of Appeals issued a 

published opinion reversing this conviction and remanding the case for a new trial. 

See Wilson v. State, No. 01-12-01125-CR, 2014 WL 6601218 (Tex. App.—Houston [1st 

Dist.] Nov. 20, 2014, pet. filed). The opinion was authored by Justice Higley, and 

joined by Justice Jennings. Id. Justice Sharp filed a dissenting opinion. Id. The 

State’s petition for discretionary review is timely filed. See TEX.R.APP. P. 68.2(a).

STATEMENT OF FACTS

The child victim in this case, K.M., testified that he was just six years old 

when appellant began to physically and sexually assault him. (RR IV 134, 154). 

K.M. described how appellant had the opportunity to abuse him over several years 

when appellant began dating K.M.’s mother and then moved in with the family. 

(RR IV 94-161). 
3

K.M. testified appellant physically beat him several times, by punching him 

in the chest, stomach and face. (RR IV 96). He also testified appellant beat him 

with a belt buckle, wooden paddle and metal clothes hanger, causing him pain. 

(RR IV 96-99, 142-144). And on at least three occasions, appellant threatened to 

kill K.M.’s father if K.M. told anyone about the abuse. (RR IV 100). 

K.M. explained the physical abuse turned sexual. The first time, appellant 

pulled K.M. close to him while wrestling and forced his penis inside K.M.’s anus, 

causing K.M. to cry out from the physical pain. (RR IV 105-113). On another 

occasion, appellant surprised K.M. in the shower. (RR IV 115-124). K.M. testified 

appellant forced him down on his knees, grabbed his head and tilted it back, and 

forced his penis inside K.M.’s mouth. (RR IV 119-122). Appellant then instructed 

K.M. to move his head up and down until appellant ejaculated. (RR IV 122-123). 

K.M. estimated that appellant sexually abused him between two to five 

times per month, from 2002-2004, causing him physical and emotional pain. (RR 

IV 105, 124-132, 136-138, 153, 156). K.M. told the jury appellant eventually became 

more violent and progressed to using duct tape to bind K.M.’s hands and ankles so 

he could anally rape and physically assault K.M. (RR IV 148-153). 

K.M.’s sister, who lived in the home with appellant and K.M., testified at 

trial she witnessed appellant both physically and sexually assault K.M. See Wilson, 

2014 WL 6601218 at *1. Dr. Donaruma examined K.M. after he disclosed sexual 
4

abuse and discovered a healing tear around K.M.’s anal opening, which was 

consistent with sexual assault of the anus. Id. 

FIRST GROUND FOR REVIEW

The First Court of Appeals erred by utilizing the constitutional harm 

standard when evaluating an evidentiary ruling. 

In his sole issue on appeal, appellant complained the trial court abused its 

discretion by excluding evidence of his good character for moral and safe conduct 

around young children. See Wilson, 2014 WL 6601218 at *2. At trial, appellant 

offered evidence from nine people who testified they each had a good opinion 

concerning appellant’s character in regard to the moral and safe conduct around 

children. (RR V 61-70). Because appellant did not provide any authority for the 

admission of the evidence, the trial court excluded it. (RR V 59-60). 

In its opinion, the Court of Appeals noted that appellant conceded two of 

the witnesses could not offer relevant testimony, so the Court limited its analysis 

to the admissibility of character evidence from seven of the witnesses. See Wilson, 

2014 WL 6601218 at *3-4. The First Court utilized dicta from the Wheeler opinion 

to hold the trial court abused its discretion in excluding this evidence. See Wilson, 

2014 WL 6601218 at *4; Wheeler v. State, 67 S.W.3d 879, 882 (Tex. Crim. App. 2002). 
5

And upon appellant’s suggestion, the Court further held the exclusion of 

this evidence should be reviewed for constitutional harm, rather than nonconstitutional harm. Wilson, 2014 WL 6601218 at *4-5. Under that standard, the 

First Court held the trial court’s error was harmful and the Court remanded the 

case for a new trial. Id. at *6-7. Justice Sharp dissented, agreeing that although it 

was error to exclude the evidence, the proper analysis was for non-constitutional 

harm, and under this standard, the error was harmless. Id. at *7-10. 

The improper exclusion of evidence may raise a constitutional violation in 

two circumstances: 1) when an evidentiary rule categorically and arbitrarily 

prohibits the defendant from offering relevant evidence that is vital to his defense; 

or 2) when a trial court erroneously excludes evidence that is vital to the case, and 

the exclusion precludes the defendant from presenting a defense. Ray v. State, 178 

S.W.3d 833, 835 (Tex. Crim. App. 2005). 

But neither of those circumstances is present. Wiley v. State, 74 S.W.3d 399, 

405 (Tex. Crim. App. 2002) (erroneous evidentiary rulings rarely rise to level of 

denying fundamental constitutional right to present meaningful defense). Thus, 

the Court of Appeals erred in relying on the second circumstance. The dissenting 

opinion from Justice Sharp is consistent with authority from this Court. See Potier 

v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002); Ray, 178 S.W.3d at 836 (exclusion of 
6

testimony from an eyewitness to the crime was reviewed for non-constitutional 

error). 

 This Court granted review in Potier to clarify the use of harm standards 

when evidence supporting the defendant’s claim of self-defense was erroneously 

excluded. Potier, 68 S.W.3d at 657. In that case, the trial court excluded testimony 

of rumors that the defendant and his neighbor had heard from other individuals in 

the neighborhood that the victim intended to kill him on the day of the shooting. 

Potier, 68 S.W.3d at 658. This Court held the exclusion of some self-defense 

evidence did not prevent the defendant from presenting a defense in his murder 

trial, and thus, did not amount to constitutional error. Id. at 657. This Court 

further reasoned, under the non-constitutional harm standard, that the trial 

court’s error in excluding the evidence was harmless because the defendant was 

able to convey his theory of the case through other evidence. Id. at 666. This Court 

noted, “Exclusions of evidence are unconstitutional only if they “significantly 

undermine fundamental elements of the accused’s defense.” Id. 

The record in this case clearly demonstrates appellant was not relying on his 

good character to defend himself against the sexual assault allegations. 

Appellant’s defense at trial was that K.M. was a manipulative child with severe 

mental problems who fabricated the allegations. Wilson, 2014 WL 6601218 at * 7-8 

(Sharp, J., dissenting). Appellant’s trial counsel thoroughly explored K.M.’s 
7

behavioral and psychiatric issues during the cross-examination of the State 

witnesses. Wilson, 2014 WL 6601218 at * 7-8 (Sharp, J., dissenting). Because the 

excluded character evidence was not the linchpin of appellant’s defense, the Court 

of Appeals erred by reviewing the case for constitutional harm. See Potier, 68 

S.W.3d at 666; Ray, 178 S.W.3d at 836. 

SECOND GROUND FOR REVIEW

The First Court of Appeals erred in finding the excluded character evidence 

was appellant’s only defense and so vital to his defense that the exclusion was 

harmful under the constitutional standard. 

Even assuming the constitutional standard is appropriate, the Court of 

Appeals erred in their harm analysis. 

At trial, appellant’s defense was that K.M. fabricated the offense. Appellant 

focused on the inconsistencies in K.M.’s testimony and his mental instability, 

basically characterizing him as a manipulative liar. In fact, appellant’s own trial 

counsel did not seem overly concerned with presenting the character evidence and 

never gave the impression it was vital to his client’s defense. 

After the State rested its case-in-chief, appellant’s trial counsel asked to 

make a proffer of testimony. (RR V 59). Defense counsel stated that he had nine 

witnesses who could testify regarding their opinion of appellant’s character as to 
8

his moral and safe conduct around children. (RR V 59). The trial judge then 

inquired about the law pertinent to appellant’s theory of admissibility: 

THE COURT: Is there a case specifically on moral and safe conduct 

around children?

MR. HINTON: Judge, I don’t have a case here. And I’m not taken by 

surprise by this because several days earlier both you and the prosecutor 

put me on notice that he would object to it and that you were most 

likely going to overrule it. So, I’m not put on surprise. I just wanted to 

make the proffer of proof and the Court rule on it and then — I'm sorry 

— and then the Court rule on it.

THE COURT: Okay. The proffer will not be allowed. (sic) (RR V 60). 

Appellant’s trial counsel openly admitted the trial judge had previously 

requested legal authority from him on this issue and after several days, he failed to 

provide it. (RR V 60). In the offer of proof, appellant called nine witnesses, all of 

which possessed the same good opinion concerning appellant’s character with 

regard to his moral and safe conduct around children. (RR V 61-70). 

At most, the additional character evidence simply furthered appellant’s 

theory, that he was not the type of person who would commit this crime. The 

Court of Appeals’ decision to hold the exclusion of this evidence harmful is 

inconsistent with authority from this Court. See Wiley, 74 S.W.3d at 405. 

In Wiley, this Court reviewed an arson conviction where the trial court

excluded evidence that indicated an alternate perpetrator may have committed the 

offense. Id. at 408. The defendant claimed two pieces of evidence should have been 
9

admitted with regard to the fire at his restaurant: 1) his statement to an insurance 

investigator that on the day of the fire he saw an unruly customer, whom he had 

kicked out of the restaurant the previous night, nearby watching the fire burn, 

and; 2) a statement from a witness who saw that customer acting crazy and 

destroying property at the restaurant the night before the fire. Id. at 403. 

This Court noted the defendant was able to present other evidence to 

further his defense that he was not the fire starter, specifically evidence that he 

had received an arson threat from a disgruntled employee. Id. at 402. Thus, this 

Court opined that while the trial judge’s ruling did effectively preclude appellant 

from presenting some of his evidence that another person committed the offense, it 

did not violate his constitutional right to present a defense. Wiley, 74 S.W.3d at 

408 (emphasis in original). 

Similarly, appellant’s character references in this case simply furthered his 

defensive theory that he was not the type of person to commit this offense. It was 

only some evidence. And none of it was direct evidence regarding the charged 

offense. The Court of Appeals erred in determining the exclusion of this evidence 

was harmful. Wiley, 74 S.W.3d at 408. 

Review of the Court of Appeal’s opinion in this case is necessary, as Gary 

Wilson v. State is a published opinion that is in conflict with several decisions from 

this Court. 
10

CONCLUSION

It is respectfully requested that this petition be granted, the Court of 

Appeals’ judgment on this issue be reversed, and the conviction be affirmed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Jessica Akins

JESSICA AKINS

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

akins_jessica@dao.hctx.net

713.755.5826

TBC No. 24029415
11

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been sent to the 

following addresses:

Charles Hinton Lisa C. McMinn

Attorney at Law State Prosecuting Attorney

P.O. Box 53719 P. O. Box 13046

Houston, Texas 77052 Austin, Texas 78711

chashinton@sbcglobal.net Lisa.McMinn@SPA.texas.gov

/s/ Jessica Akins

JESSICA AKINS

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

akins_jessica@dao.hctx.net

713.755.5826

TBC No. 24029415

CERTIFICATE OF COMPLIANCE

 This is to certify that this computer-generated document has a word count 

of 2633 words, based upon the representation provided by the word processing 

program that was used to create the document.

/s/ Jessica Akins

Date: 12/29/2014
12

APPENDIX A
13

2014 WL 6601218

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN 

RELEASED FOR PUBLICATION IN THE 

PERMANENT LAW REPORTS. UNTIL RELEASED, 

IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas,

Houston (1st Dist.).

Gary Wayne WILSON, Appellant

v.

The STATE of Texas, Appellee.

No. 01–12–01125–CR. | Nov. 20, 2014.

Synopsis

Background: Defendant was convicted in the 209th 

District Court, Harris County, of aggravated sexual 

assault of a child. Defendant appealed.

Holdings: The Court of Appeals, Higley, J., held that:

[1] district court abused its discretion in excluding 

evidence of seven witnesses who were prepared to testify 

that defendant had a good character regarding moral and 

safe conduct around children;

[2] erroneous exclusion of testimony was constitutional 

error; and

[3] error was not harmless.

Reversed and remanded.

Sharp, J., dissented and filed opinion.

West Headnotes (18)

[1] Criminal Law

Defendant preserved for appellate review 

whether trial court abused its discretion in 

excluding evidence of his good character for 

moral and safe conduct around young children 

in trial for aggravated sexual assault of a child, 

where defendant informed court he would 

present testimony of his family and friends 

concerning such character, court sustained 

State’s objection to evidence, and defendant 

made an offer of proof informing court of 

substance of excluded evidence. Rules 

App.Proc., Rule 33.1(a)(1)(A); Rules of Evid., 

Rule 103.

Cases that cite this headnote

[2] Criminal Law

Court of Appeals reviews a trial court’s decision 

to admit or exclude evidence under an abuse of 

discretion standard.

Cases that cite this headnote

[3] Criminal Law

Court of Appeals will not reverse a trial court’s 

ruling admitting or excluding evidence unless 

that ruling falls outside the zone of reasonable 

disagreement.

Cases that cite this headnote

[4] Criminal Law

An accused in a criminal case is permitted to 

introduce evidence of a specific good-character 

trait to show that it is improbable that he 

committed the charged offense, when that 

character trait is relevant to the offense. Rules of 

Evid., Rule 404(a)(1)(A).

Cases that cite this headnote

[5] Criminal Law

Trial court abused its discretion in excluding 

evidence of seven witnesses who were prepared 

to testify that defendant had a good character 

regarding moral and safe conduct around 

children in trial for aggravated sexual assault of 

a child; witnesses knew defendant during time 

period in question and would testify that they 

had seen defendant around young children on 

many occasions, and testimony was directly 

relevant to offense with which defendant was 

charged. Rules of Evid., Rule 404(a)(1)(A).

Cases that cite this headnote
14

[6] Rape

A defendant charged with aggravated sexual 

assault is entitled to proffer evidence of his good 

character or propensity for moral and safe 

relations with small children or young boys. 

Rules of Evid., Rule 404(a)(1)(A).

Cases that cite this headnote

[7] Criminal Law

Excluding evidence of a defendant’s good 

character or propensity for moral and safe 

relations with small children or young boys in 

trial for aggravated sexual assault is an abuse of 

discretion. Rules of Evid., Rule 404(a)(1)(A).

Cases that cite this headnote

[8] Criminal Law

Generally, the erroneous admission or exclusion 

of evidence is nonconstitutional error that must 

be disregarded unless the error affects 

defendant’s substantial rights. Rules App.Proc., 

Rule 44.2(b).

Cases that cite this headnote

[9] Criminal Law

Erroneous exclusion of evidence can rise to the 

level of constitutional error, requiring appellate 

court to reverse a conviction unless the court 

determines beyond a reasonable doubt that the 

error did not contribute to conviction, when the 

excluded evidence forms such a vital portion of 

the case that exclusion effectively precludes the 

defendant from presenting a defense. Rules 

App.Proc., Rule 44.2(a).

Cases that cite this headnote

[10] Criminal Law

Erroneous exclusion of evidence can rise to the 

level of constitutional error, requiring appellate 

court to reverse a conviction unless the court 

determines beyond a reasonable doubt that the 

error did not contribute to conviction, when a 

state evidentiary rule categorically and 

arbitrarily prohibits the defendant from offering 

relevant evidence that is vital to his defense. 

Rules App.Proc., Rule 44.2(a).

Cases that cite this headnote

[11] Criminal Law

While erroneously excluding testimony that 

would incrementally further the defendant’s 

defensive theory is not constitutional error 

requiring appellate court to reverse a conviction 

unless the court determines beyond a reasonable 

doubt that the error did not contribute to 

conviction, excluding evidence that goes to the 

heart of the defense is. Rules App.Proc., Rule 

44.2(a).

Cases that cite this headnote

[12] Criminal Law

Erroneous exclusion of testimony from 

defendant’s family and friends concerning his 

good character regarding moral and safe conduct 

around children was constitutional error, and 

thus appellate court was required to reverse 

conviction for aggravated sexual assault of a 

child unless court determined beyond a 

reasonable doubt that the error did not contribute 

to conviction; the only witness for defendant 

during guilt-innocence phase of trial was his 

biological daughter who testified that she and 

defendant’s biological son lived with defendant 

off-and-on during time in question, no 

identifiable defensive theory was developed 

during cross-examination of State’s witnesses, 

defendant’s closing argument consisted solely of 

urging jury to consider that State had not carried 

its evidentiary burden, and defendant’s 

credibility and character were pivotal matters. 

Rules App.Proc., Rule 44.2(a); Rules of Evid., 

Rule 404(a)(1)(A).

Cases that cite this headnote
15

[13] Criminal Law

The mere fact that there is other evidence that 

could support a conviction does not establish 

that a constitutional error is harmless; instead, if 

there is a reasonable likelihood that the error 

materially affected the jury’s deliberations, then 

the error is not harmless beyond a reasonable 

doubt. Rules App.Proc., Rule 44.2(a).

Cases that cite this headnote

[14] Criminal Law

When determining whether a constitutional error 

is harmless, the reviewing court should 

calculate, as nearly as possible, the probable 

impact of the error on the jury in light of the 

other evidence. Rules App.Proc., Rule 44.2(a).

Cases that cite this headnote

[15] Criminal Law

A court of appeals reviewing a cold record is ill 

suited to make determinations of credibility 

much less to weigh them.

Cases that cite this headnote

[16] Criminal Law

The jury is in the best position to judge the 

credibility of a witness because it is present to 

hear the testimony, as opposed to an appellate 

court who relies on the cold record.

Cases that cite this headnote

[17] Criminal Law

Court of Appeals must afford almost complete 

deference to a jury’s determination of 

credibility, and the jury is the sole judge of what 

weight to give such testimony.

Cases that cite this headnote

[18] Criminal Law

Constitutional error in excluding testimony from 

defendant’s family and friends concerning his 

good character regarding moral and safe conduct 

around children was not harmless in trial for 

aggravated sexual assault of a child, even 

though victim testified about assaults and 

victim’s sister testified that she saw defendant 

rape victim on one occasion; victim had a 

history of lying and being manipulative and was 

diagnosed with mental disorders and suffered 

hallucinations, sister could have had motivations 

to testify other than to give an unaltered account 

of what she observed, doctor who performed 

victim’s physical examination following his 

outcry testified there were multiple possible 

explanations of what caused healing tear around 

his anal opening, and another doctor testified 

there may have been more than one thing that 

could have caused victim’s psychological 

characteristics that were prevalent in victims of 

sexual abuse. Rules App.Proc., Rule 44.2(a); 

Rules of Evid., Rule 404(a)(1)(A).

Cases that cite this headnote

On Appeal from the 209th District Court, Harris County, 

Texas, Trial Court Case No. 1068173.

Attorneys and Law Firms

Charles Hinton, Houston, TX, for appellant.

Devon Anderson, District Attorney—Harris County, 

Texas, Jessica Akins, Assistant District Attorney, 

Houston, TX, for Appellee.

Panel consists of Justices JENNINGS, HIGLEY, and 

SHARP.

OPINION

LAURA CARTER HIGLEY, Justice.

*1 Appellant, Gary Wayne Wilson, was charged by 

indictment with aggravated sexual assault of a child.1 The 

jury found him guilty and assessed punishment at life 

imprisonment. In one issue on appeal, Appellant argues 

that the trial court abused its discretion by excluding 

evidence of his good character for moral and safe conduct 
16

around young children.

We reverse and remand for a new trial.

Background

KM’s parents separated around early 2001, when KM was 

almost four years old. After the separation, KM, his older 

brother, his older sister, and his younger brother lived 

with their mother. Some time after the separation, KM’s 

mother started dating Appellant. Appellant moved in with 

KM and his family in 2002. KM made the outcry of 

sexual abuse six months later.

KM’s father testified at trial that, early in his youth, KM 

had been a happy child. He testified that this behavior 

started to change around the time that Appellant moved in 

with KM’s family. Over time, KM has been diagnosed 

with multiple psychological disorders, including attention 

deficit hyperactivity disorder, bipolar disorder, and posttraumatic stress disorder. KM has been prescribed 

medication for his disorders and has been admitted into 

psychological treatment centers numerous times in his 

childhood. A doctor from one of these facilities testified 

that KM suffered hallucinations, including voices telling 

him to hurt his mother. By the age of 15—his age at the 

time of trial—KM had been charged with multiple crimes, 

including assault of his sister and making a terroristic 

threat. KM’s father acknowledged that KM had a history 

of being manipulative and telling lies.

KM testified at length and in detail about the sexual 

assaults to which he described Appellant subjecting him. 

He testified that Appellant sexually assaulted him two to 

five times every month from the time Appellant moved in 

with the family until October 2005, when KM was 

removed from the home. He described six of those 

instances in detail. In addition, KM testified about 

physical abuse he suffered from Appellant. KM and his 

sister both testified that Appellant would regularly walk 

around the house naked, would have sex with KM’s 

mother in front of the children, and would leave 

pornographic magazines lying around the house. KM 

testified that Appellant threatened to kill KM and his 

father if KM ever told anyone about the abuse.

KM’s sister testified that she once saw Appellant sexually 

assaulting KM by penetrating KM’s anus with 

Appellant’s penis. She testified that Appellant threatened 

to kill her and her father if she told anyone about what she 

saw. She also witnessed Appellant physically assault KM 

on multiple occasions.

After he made his outcry about sexual assault, KM was 

given a physical examination. Dr. M. Donaruma testified 

for the State about the results of the examination. She 

testified that KM’s physical examination was “an 

abnormal anal exam” with the discovery of “a healing tear 

around his anal opening” that “would be consistent with a 

sexual assault of the anus.” She also testified that there 

were multiple possible explanations of what caused the 

tear and that it is commonly “unlikely” to see an injury as 

the result of a sexual assault of the anus because the anus 

can typically accommodate objects the size of a penis.

*2 Dr. L. Thompson, the director of therapy and 

psychological services at the Harris County Children’s 

Assessment Center, testified as the State’s expert about 

certain psychological characteristics that were prevalent 

in victims of sexual abuse. These characteristics included 

sleep difficulties, appetite difficulties, anxiety disorders, 

and interpersonal difficulties. The record established that 

KM suffered from a number of the characteristics 

described by Dr. Thompson. Nevertheless, Dr. Thompson 

was careful to explain that “although there might be a 

higher incidence of [a] certain problem in people who 

have been [sexually] abused, there may be more than one 

thing that could cause that particular problem.”

For his case-in-chief, Appellant sought to present nine 

witnesses to testify about Appellant’s character regarding 

moral and safe conduct around children. These witnesses 

were two of Appellant’s daughters, his son, his brother, a 

friend, a nephew-in-law, his current girlfriend, his 

girlfriend’s mother, and a niece. The State objected that 

the testimony was improper bolstering and was not 

relevant. The trial court sustained the objections and 

denied the request to allow the people to testify.

Appellant presented the testimony of the nine witnesses in 

an offer of proof. All nine people testified that they had 

seen Appellant around young children on many occasions, 

that they had “an opinion regarding [Appellant’s] 

character regarding moral and safe conduct around 

children,” and that their opinion of Appellant’s character 

was “good.”

Exclusion of Evidence

In his sole issue, Appellant argues that the trial court 

abused its discretion by excluding evidence of his good 

character for moral and safe conduct around young 

children.

A. Preservation

[1] As an initial matter, the State argues that Appellant 

failed to preserve this issue for appellate review. As the 

State correctly points out, the Texas Rules of Appellate 

Procedure require,

(a) In General. As a prerequisite to presenting a 

complaint for appellate review, the record must show 

that:
17

(1) the complaint was made to the trial court by a 

timely request, objection, or motion that:

(A) stated the grounds for the ruling that the 

complaining party sought from the trial court with 

sufficient specificity to make the trial court aware of 

the complaint, unless the specific grounds were 

apparent from the context....

TEX.R.APP. P. 33.1(a)(1)(A) (emphasis added). The 

State argues that, because Appellant failed to present the 

trial court with relevant case law supporting his position 

that the testimony he sought to have admitted was 

admissible after the trial court asked him if he had such 

case law, Appellant failed to preserve the issue for 

appellate review.

The State misconceives what constitutes “the complaint” 

as provided in rule 33.1. A stated intent to present 

evidence is not a “complaint.” Appellant informed the 

trial court he would present the testimony of people 

concerning his “character regarding moral and safe 

conduct around children.” It was the State that objected to 

this evidence, arguing that it constituted improper 

bolstering and was not relevant. These objections are “the 

complaint[s] made to the trial court by a timely request, 

objection, or motion.” Id. The trial court sustained those 

objections, and the Appellant now “present[s] those 

complaint[s] for appellate review.” Id.

*3 The State’s reliance on rule 103 of the Texas Rules of 

Evidence is similarly misplaced. Rule 103 provides,

(a) Effect of Erroneous Ruling. Error may not be 

predicated upon a ruling which admits or excludes 

evidence unless a substantial right of the party is 

affected, and

(1) Objection. In case the ruling is one admitting 

evidence, a timely objection or motion to strike 

appears of record, stating the specific ground of 

objection, if the specific ground was not apparent 

from the context....

(2) Offer of proof. In case the ruling is one excluding 

evidence, the substance of the evidence was made 

known to the court by offer, or was apparent from 

the context within which questions were asked.

TEX.R. EVID. 103 (emphasis added).

The State argues that Appellant failed to satisfy the 

requirements of rule 103(a)(1). By its plain language, 

however, it is apparent that rule 103(a)(1) only applies to 

evidence that was admitted. TEX.R. EVID. 103(a)(1). 

Appellant’s evidence was excluded. Accordingly, rule 

103(a)(1) does not apply. Instead, for excluded evidence, 

rule 103(a)(2) applies, requiring Appellant to make an 

offer of proof, informing the court of the substance of the 

excluded evidence. TEX.R. EVID. 103(a)(2). Appellant 

made just such an offer of proof.

We hold the issue has been preserved for review.

B. Error

[2] [3] Next, we consider whether the trial court abused its 

discretion by excluding the requested evidence. We 

review a trial court’s decision to admit or exclude 

evidence under an abuse of discretion standard. Shuffield 

v. State, 189 S.W.3d 782, 793 (Tex.Crim.App.2006). We 

will not reverse a trial court’s ruling unless that ruling 

falls outside the zone of reasonable disagreement. Torres 

v. State, 71 S.W.3d 758, 760 (Tex.Crim.App.2002).

[4] Generally, “[e]vidence of a person’s character or 

character trait is not admissible for the purpose of proving 

action in conformity therewith on a particular occasion.” 

TEX.R. EVID. 404(a). “However, an accused in a 

criminal case is permitted to introduce evidence of a 

specific good-character trait to show that it is improbable 

that he committed the charged offense, when that 

character trait is relevant to the offense.” Melgar v. State,

236 S.W.3d 302, 306–07 (Tex.App.-Houston [1st Dist.] 

2007, pet. ref’d) (citing TEX.R. EVID. 404(a)(1)(A)).

[5] Appellant asked the trial court to allow nine people to 

testify about Appellant’s character. During the offer of 

proof, all nine people testified that they had seen 

Appellant around young children on many occasions, that 

they had “an opinion regarding [Appellant’s] character 

regarding moral and safe conduct around children,” and 

that their opinion of Appellant’s character was “good.” 

The State objected that the testimony was improper 

bolstering. The trial court denied the request to allow the 

people to testify as identified. On appeal, Appellant 

acknowledges that two of the people presented to testify 

did not know Appellant during the time period in question 

and, accordingly, their opinion about Appellant’s 

character regarding conduct around children would not be 

relevant. Appellant argues, however, that the remaining 

seven people should have been allowed to testify.

*4 [6] [7] A defendant charged with aggravated sexual 

assault is “entitled to proffer evidence of his good 

character (or propensity) for moral and safe relations with 

small children or young [boys].” Wheeler v. State, 67 

S.W.3d 879, 882 (Tex.Crim.App.2002) (citing Tex.R. 

Evid. 404(a)(1)(A)). Excluding such evidence is an abuse 

of discretion. See Thomas v. State, 669 S.W.2d 420, 423–

44 (Tex.App.-Houston [1st Dist.] 1984, pet. refd) 

(reversing judgment based on exclusion of good-character 

evidence).

Appellant was charged with aggravated sexual assault of 

KM. The seven witnesses in question were prepared to 

testify that Appellant had a good character regarding 

moral and safe conduct around children. This is 
18

permissible under rule 404 and directly relevant to offense 

with which he had been charged.

We hold the trial court abused its discretion by excluding 

this evidence.

C. Type of Error

Having determined that the trial court’s ruling was error, 

we must consider whether the error was harmful. See

TEX.R.APP. P. 44.2. Different types of error, however, 

have different standards of review for harm. See id. So we 

must determine what kind of error was committed.

In general, errors in criminal cases are divided between 

constitutional errors and non-constitutional errors. See id.

For constitutional errors, “the court of appeals must 

reverse a judgment of conviction or punishment unless the 

court determines beyond a reasonable doubt that the error 

did not contribute to the conviction or punishment.” 

TEX.R.APP. P. 44.2(a). For non-constitutional errors, any 

error “must be disregarded” unless the error affects 

Appellant’s substantial rights. TEX.R.APP. P. 44.2(b).

[8] [9] [10] [11] “Generally, the erroneous admission or 

exclusion of evidence is nonconstitutional error....” 

Melgar, 236 S.W.3d at 308. Erroneous exclusion of

evidence can rise to the level of constitutional error, 

however, when the excluded evidence “forms such a vital 

portion of the case that exclusion effectively precludes the 

defendant from presenting a defense.” Potier v. State, 68 

S.W.3d 657, 665 (Tex.Crim.App.2002).

2

“Trials involving 

sexual assault may raise particularly evidentiary and 

constitutional concerns because the credibility of both the 

complainant and defendant is a central, often dispositive 

issue.” Hammer v. State, 296 S.W.3d 555, 561 

(Tex.Crim.App.2009). While excluding testimony that 

would “incrementally” further the defendant’s defensive 

theory is not constitutional error, excluding evidence that 

“goes to the heart of the defense” is. See Ray v. State, 178 

S.W.3d 833, 836 (Tex.Crim.App.2005) (holding 

erroneously excluding testimony that incrementally 

furthers defense is non-constitutional error); Wiley v. 

State, 74 S.W.3d 399, 405 (Tex.Crim.App.2002) (holding 

erroneously excluding testimony that “goes to the heart of 

the defense” is constitutional error).

[12] Appellant argues that the testimony of his family and 

friends concerning his character was his only defense and 

that, accordingly, its exclusion amounts to constitutional 

error. We must agree.

*5 Appellant presented one witness during the guiltinnocence phase of the trial. He presented his biological 

daughter, who testified that she and Appellant’s biological 

son lived with Appellant off-and-on during the time in 

question. No further testimony was presented. While 

Appellant cross-examined many of the State’s witnesses, 

no identifiable defensive theory was developed in the 

course of the cross-examination. Appellant’s closing 

argument consisted solely of urging the jury to consider 

that the State had not carried its evidentiary burden. 

Appellant’s counsel even implored the jury to consider 

the difficulty of how Appellant could “defend [himself] 

against that kind of allegation.”

A review of the record indicates, then, that Appellant’s 

sole available defense was the testimony of his friends 

and family that such actions are not in keeping with his 

character. That testimony did not only go to the heart of 

his defense, see Wiley, 74 S.W.3d at 405; it was the sum 

total of his defense. Additionally, Appellant’s credibility 

and character are pivotal matters in this case. See 

Hammer, 296 S.W.3d at 561. Accordingly, we hold that 

the exclusion of the evidence was constitutional error.

D. Harm

[13] [14] When an error is determined to be constitutional 

error, “the court of appeals must reverse a judgment of 

conviction or punishment unless the court determines 

beyond a reasonable doubt that the error did not 

contribute to the conviction or punishment.” TEX.R.APP. 

P. 44.2(a). The mere fact that there is other evidence that 

could support conviction does not establish that the error 

is harmless. McCarthy v. State, 65 S.W.3d 47, 55 

(Tex.Crim.App.2001). Instead, “[i]f there is a reasonable 

likelihood that the error materially affected the jury’s 

deliberations, then the error is not harmless beyond a 

reasonable doubt. The reviewing court should calculate, 

as nearly as possible, the probable impact of the error on 

the jury in light of the other evidence.” Id.

[15] [16] [17] As we have noted, trials concerning allegations 

of sexual assault depend heavily on credibility 

determinations between two competing claims of what 

happened. See Hammer, 296 S.W.3d 561–62. This case is 

no different. It is well acknowledged, however, that a 

court of appeals reviewing a cold record is ill suited to 

make determinations of credibility much less to weigh 

them. See Lancon v. State, 253 S.W.3d 699, 705 

(Tex.Crim.App.2008). “The jury is in the best position to 

judge the credibility of a witness because it is present to 

hear the testimony, as opposed to an appellate court who 

relies on the cold record.” Id. As a result, we must “afford 

almost complete deference to a jury’s” determination of 

credibility, and “the jury is the sole judge of what weight 

to give such testimony.” Id.

[18] KM testified at length and in detail about the sexual 

assaults to which he described Appellant subjecting him. 

The record also established, however, that KM had a 

history of lying and of being manipulative. He has been 

diagnosed with attention deficit hyperactivity disorder, 

bipolar disorder, and post-traumatic stress disorder. The 

record established that he suffered hallucinations, 
19

including voices telling him to hurt his mother.

*6 KM’s sister testified that she saw Appellant rape KM 

on one occasion. But we cannot exclude the possibility 

that she could have motivations to testify other than to 

give an unaltered account of what she observed, a matter 

that could be informed by determinations of credibility.

Other than the testimony of KM and his sister, there is 

little evidence in the record identifying Appellant as the 

perpetrator of the sexual assaults with which he was 

charged. There was testimony from other witnesses 

concerning KM’s outcry, but the veracity of those outcry 

statements ultimately return to determinations of KM’s 

credibility.

Dr. Donaruma testified that KM’s physical examination 

following his outcry was “an abnormal anal exam” with 

the discovery of “a healing tear around his anal opening” 

that “would be consistent with a sexual assault of the 

anus.” But she also testified that there were multiple 

possible explanations of what caused the tear and that it is 

commonly “unlikely” to see an injury as the result of a 

sexual assault of the anus because the anus can typically 

accommodate objects the size of a penis. Even if we 

determined that a jury would conclude that the evidence 

was indicative of a sexual assault, however, this evidence 

would not compel the conclusion that Appellant 

committed the assault.

Similarly, Dr. Thompson testified about certain 

psychological characteristics that were prevalent in 

victims of sexual abuse. These characteristics included 

sleep difficulties, appetite difficulties, anxiety disorders, 

and interpersonal difficulties. The record established that 

KM suffered from a number of the characteristics 

described by Dr. Thompson. Nevertheless, Dr. Thompson 

was careful to explain that “although there might be a 

higher incidence of [a] certain problem in people who 

have been [sexually] abused, there may be more than one 

thing that could cause that particular problem.”

We endeavor to emphasize that we do not assert that 

KM’s testimony—or the testimony of any witness 

presented by the State—was motivated by anything other 

than a sincere desire to describe the events as they

actually happened. Nothing in this opinion is meant to 

impugn the motives or intentions of KM. The physical 

and emotional difficulties he has suffered are apparent 

from the record, and we do not make light of them or 

castigate him because of them.

Instead, our concern lies with our very inability to make 

such determinations concerning any of the testifying 

witnesses in the presence of a cold record. Credibility 

determinations are wisely entrusted to the trier of fact for 

this very reason. None of the evidence directly identifying 

Appellant as the perpetrator of sexual assault was free 

from the need of credibility determinations.

Just as we cannot assess matters concerning the credibility 

of the State’s witnesses presented at trial, we likewise 

cannot assess how the jury would have assessed the 

credibility of the seven witnesses offered by the defense 

to testify on Appellant’s good character regarding moral 

and safe conduct around children. A jury swayed by the 

credibility of these seven witnesses and with questions on 

the credibility of the State’s witnesses certainly could be 

materially affected in their deliberations. See McCarthy,

65 S.W.3d at 55 (holding error is not harmless beyond a 

reasonable doubt if there is reasonable likelihood that 

error materially affected jury’s deliberations). Because we 

cannot make this determination, we are required to 

reverse and remand for a new trial.

*7 We sustain Appellant’s sole issue.

Conclusion

We reverse and remand for a new trial.

Justice SHARP, dissenting from the judgment.

DISSENTING OPINION

JIM SHARP, Justice.

*7 Gary Wayne Wilson was convicted of aggravated 

sexual assault of a child, and the jury assessed his 

punishment at life imprisonment.1 Wilson’s position 

before this Court is that the trial court erred by excluding 

the testimony of his friends and family regarding his 

character for moral and safe conduct around young 

children and that the error deprived him of his only 

meaningful defense. I concur that the trial court’s 

exclusion was error and that Wilson preserved this 

argument for our review, however, I do not believe the 

error is constitutional error such that Wilson was deprived 

of a fair trial, and respectfully dissent.

Non–Constitutional Error

It is well-established that the erroneous admission or 

exclusion of evidence is generally considered nonconstitutional error. Melgar v. State, 236 S.W.3d 302, 308

(Tex.App.-Houston [1st Dist.] 2007, pet. Ref’d). The 

erroneous exclusion of evidence, however, can rise to the 

level of constitutional error under very limited 

circumstances, including when the excluded evidence 

“forms such a vital portion of the case that exclusion 
20

effectively precludes the defendant from presenting a 

defense.” Potier v. State, 68 S.W.3d 657, 665

(Tex.Crim.App.2002). Cases involving such 

constitutional errors are rare exceptions to the rule. See id.

at 663 (“Erroneous evidentiary rulings rarely rise to the 

level of denying the fundamental constitutional rights to 

present a meaningful defense.”)

The excluded evidence in this case consists of opinion 

testimony from seven of Wilson’s family members and a 

close friend (Wilson’s two daughters, a son, a niece, a 

nephew, his brother, and his brother’s girlfriend) who 

would have testified that they had a “good” opinion 

concerning Wilson’s character in regard to his moral and 

safe conduct around children. The majority states that:

A review of the record indicates, 

then, that [Wilson]’s sole available 

defense was the testimony of his 

friends and family that such actions 

are not in keeping with his 

character. That testimony did not 

only go to the heart of his defense. 

See Wiley, 74 S.W.3d at 405. It was 

the sum total of his defense. 

Additionally, [Wilson]’s credibility 

and character are pivotal matters in 

this case. See Hammer, 296 S.W.3d 

at 561. Accordingly, we hold that 

the exclusion of the evidence was 

constitutional error.2

I strongly disagree that Wilson’s sole available defense at 

trial was that the acts alleged were “not in keeping with 

his character.” Wilson’s defense, as illustrated by the 

record, was that K.M. was a manipulative child with 

severe psychiatric issues who was fabricating these 

allegations of abuse. When the complainant testifies that 

the defendant sexually assaulted him, as in this case, the 

defensive theory that “sexually assaulting young boys is 

not in keeping with my character” is a natural corollary to 

the theory that “the duplicitous and mentally disturbed 

boy is fabricating these claims of abuse”—the latter 

theory is the one Wilson advanced at trial. One theory is 

intrinsically linked with the other.

*8 The boy’s lengthy history of behavioral, legal, and 

psychiatric problems were extensively explored during 

Wilson’s cross-examination of his father and K.M.’s 

doctors.3Indeed, Wilson’s jury argument highlighted the 

unreliability of K.M.’s testimony, and maintained, as 

such, that the State had failed to carry its evidentiary 

burden. Thus, it is evident from the record that the 

proffered testimony from Wilson’s family and closefamily friends regarding his character for moral and safe 

conduct around young children did not constitute the 

“sum total of his defense.” It is further evident that this 

evidence would, at most, have only “incrementally” 

advanced Wilson’s defensive theory of fabrication by 

indirectly attacking K.M.’s credibility. See Ray v. State,

178 S.W.3d 833, 836 (Tex.Crim.App.2005) (holding 

erroneously excluding testimony that incrementally 

furthers defense is non-constitutional error). Moreover, 

the fact that Wilson was unable to present positive 

character testimony does not necessarily mean that the 

error was of a constitutional magnitude, especially in such 

a case as this with physical and corroborating evidence. 

See, e.g., Hammer v. State, 296 S.W.3d 555, 561–62 

(Tex.Crim.App.2009) (stating that credibility of 

complainant and defendant “is a central, often dispositive, 

issue” in sexual assault trials because “[s]exual assault 

cases are frequently ‘he said, she said’ trials in which the 

jury must reach a unanimous verdict based solely upon 

two diametrically different versions of an event, unaided 

by any physical, scientific, or other corroborative 

evidence.”) (emphasis added).

As such, I would hold that the exclusion of the proffered 

testimony, while erroneous, is non-constitutional error 

and, therefore, subject to Rule 44.2(b) analysis.

Harm Analysis: Non–Constitutional Error

Non-constitutional error must be disregarded unless the 

error affects the defendant’s substantial rights. See

TEX.R.APP. P. 44.2(b). A substantial right is affected 

when an error has a substantial and injurious effect or 

influence in determining a jury’s verdict. King v. State,

953 S.W.2d 266, 271 (Tex.Crim.App.1997); see also 

Solomon v. State, 49 S.W.3d 356, 365 

(Tex.Crim.App.2001) (stating that such error is harmless 

if, after reviewing entire record, reviewing court has “fair 

assurance that the error did not influence the jury, or had 

but a slight effect”). Accordingly, a criminal conviction 

should not be overturned based upon non-constitutional 

error absent “grave doubt” by the reviewing court that the 

result of the trial was free from the substantial effect or 

influence of that error. See Burnett v. State, 88 S.W.3d 

633, 637–38 (Tex.Crim.App.2002). “Grave doubt” means 

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.” Id.

Our assessment of harm resulting from a nonconstitutional error examines the entire record and we 

“calculate, as much as possible, the probable impact of 

the error upon the rest of the evidence.” Coble v. State,

330 S.W.3d 253, 280 (Tex.Crim.App.2010). To be 

considered, among other relevant factors, is the testimony 

or physical evidence admitted for the jury’s consideration, 

the nature of the evidence supporting the verdict, the 

character of the alleged error and how it might be 

considered in connection with other evidence in case. 

Barshaw v. State, 342 S.W.3d 91, 94 

(Tex.Crim.App.2011).

*9 Despite the majority’s protestations to the contrary, the 
21

direct and circumstantial evidence supporting the jury’s 

verdict in this case is extremely strong, if not 

overwhelmingly so. See Motilla v. State, 78 S.W.3d 352, 

357 (Tex.Crim.App.2002) (stating overwhelming 

evidence of guilt is one factor for court to consider when 

assessing harm resulting from non-constitutional error). 

K.M. testified with specific and graphic detail about four 

different violent sexual assaults by Wilson, as well as 

various other instances of physical abuse. According to 

K.M., Wilson became more violent with him as time went 

on and even began using duct tape to physically restrain 

the young boy while the abuse was occurring.4

Perhaps more importantly, K.M.’s testimony is 

corroborated by his sister, who testified that she observed 

Wilson physically and sexually abuse K.M. on several 

occasions. Like K.M., she was able to describe the sexual 

assault she witnessed with specific detail for the jury. In 

particular, K.M.’s sister testified that one day she was 

walking down the hallway of their house and noticed that 

K.M .’s bedroom door was slightly ajar. She looked in 

and saw K.M. lying face-down on the floor, naked, 

flailing his arms, with Wilson on his knees behind K.M., 

hunched over the boy’s body. She heard her brother 

yelling for Wilson to get off him, and she saw Wilson 

pinning K.M. down by holding his arms down, while he 

moved his body back and forth on top of K.M. She 

testified that her initial failure to disclose this sexual 

assault was due to Wilson’s threat to kill her and her 

father if she did. She also corroborated K.M.’s testimony 

about Wilson’s other sexually inappropriate behavior 

while living with them and their mother that at an expert 

characterized as “grooming” (i.e., that Wilson walked 

around the house naked, had sex with their mother in 

front of them, and that Wilson kept pornographic 

magazines in the bathroom and on the living room coffee 

table).

Both K.M. and his sister’s testimony was further 

corroborated by Dr. Donaruma, a child abuse pediatrician, 

who discovered an anal tear in the course of her 2006 

examination of K.M. consistent with sexual abuse. 

Donaruma explained that such injuries are not only 

uncommon but consistent with repeated anal sexual 

assault over a number of years. On cross-examination, Dr. 

Donaruma testified that although there could be multiple 

explanations for the oval tear that she described, given the 

“absence of a history of constipation, encopresis, or 

painful defecation,” K.M.’s injury was “highly suspicious 

for the occurrence of penetrating anal trauma.” 

(emphasis added).

K.M.’s father and his elementary school counselor5also 

testified that K.M. began to act out at school and 

demonstrate significant behavioral problems beginning in 

kindergarten/first grade—when Wilson began living with 

the family. This evidence corroborates K.M.’s testimony 

that he started acting out at school when he was in 

kindergarten and first grade as a result of the sexual and 

physical abuse he was experiencing at home by Wilson. 

Specifically, K.M.’s guidance counselor testified that 

towards the end kindergarten and beginning of his first 

grade year, K.M., who had previously never exhibited 

behavioral problems in the classroom, began to get very 

angry, very easily and was prone to emotional, violent 

outbursts (e.g., kicking and screaming or pushing chairs). 

These behavioral problems escalated to the point where 

he would run out of the classroom and onto the 

playground and, if already on the playground, runaway 

from school altogether. In October 2005, after she saw 

bruises on K.M.’s back and legs and scratches on his neck 

and ear lobes, the counselor contacted CPS. K.M., in 

second grade at the time, testified that he had confided 

Wilson’s physical abuse to the counselor.6

*10 The psychiatric testimony as to the improvement of 

K.M.’s attitude and behavior once he moved out of the 

home he shared with his mother and Wilson also supports 

this claim; as do K.M.’s PTSD diagnosis, history of 

suicidal ideations at the tender age of seven or eight,7the 

testimony of his father and two other treating 

therapists/psychologists8about his behavioral and 

interpersonal problems, and the testimony of Dr. 

Thompson that PTSD can be a sign of sexual abuse and 

that sexually abused children exhibit characteristics such 

as depression, suicidality, and interpersonal difficulties 

and often have problems dealing with authority figures. 

The evidence corroborating K.M.’s and his sister’s 

testimony regarding the sexual abuse is abundant.

Absolutely crucial to note is that Wilson’s character is not 

critical to the disposition of the present case because this 

is no simple “he said, she said” casehere, there is evidence 

of an anal injury consistent with sexual abuse (“highly 

suspicious for the occurrence of penetrating anal 

trauma,”) and other corroborating testimony from K.M.’s 

father, sister, elementary school counselor, therapists, and 

doctors. Cf. Hammer, 296 S.W.3d at 561–62 (stating that 

credibility of complainant is important in sexual assault 

trials because “[s]exual assault cases are frequently ‘he 

said, she said’ trials in which the jury must reach a 

unanimous verdict based solely upon two diametrically 

different versions of an event, unaided by any physical, 

scientific, or other corroborative evidence.”) (emphasis 

added). Sexual assault cases rarely have such compelling 

corroborating evidence.

After reviewing the entire record in this case, including 

the ample evidence supporting the jury’s verdict, I have 

“fair assurance” that the exclusion of Wilson’s good 

character evidence “did not influence the jury, or had but 

a slight effect.” After applying the proper nonconstitutional harm analysis, I would hold that the 

erroneous exclusion of the testimony from seven of 

Wilson’s close family and friends was non-constitutional 

error and does not require reversal. Accordingly, I would 

affirm the trial court’s judgment.
22

Footnotes

1 See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (Vernon Supp.2014).

2 It can also rise to the level of constitutional error “when a state evidentiary rule categorically and arbitrarily prohibits the defendant 

from offering relevant evidence that is vital to his defense.” Ray v. State, 178 S.W.3d 833, 835 (Tex.Crim.App.2005). This 

circumstance is not applicable to our current analysis, however.

1 See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (West Supp.2014).

2 I also note that the majority’s application of constitutional harm analysis in this case effectively creates an impossible test under 

which no constitutional error could ever be considered harmless when issues of witness credibility and reliability are involved. The 

majority reasons that as an appellate court with nothing but a cold record, it cannot “assess how the jury would have assessed the 

credibility of the seven witnesses offered by the defense to testify on [Wilson]’s good character regarding moral and safe conduct 

around children,” and therefore, it cannot “determine[ ] beyond a reasonable doubt that the error did not contribute to [Wilson’s] 

conviction or punishment.” Despite the acknowledgement that a cold record is ill suited for determinations of credibility, the 

majority opinion nevertheless discounts the testimony of K.M.’s sister and the State’s other witnesses and even goes so far as to 

suggest that K.M.’s sister “could have motivations to testify other than to give an unaltered account of what she observed, a matter 

that could be informed by determinations of credibility.”

3 Wilson could have cross-examined K.M. and further developed this defensive theory, but did not.

4 K.M. described one occasion for the jury when Wilson tied K.M.’s hands together with duct tape and bound the first or second 

grader to the frame of his bed so that he could not escape Wilson’s violent sexual assault.

5 The majority omits mentions of testimony from K.M.’s elementary school counselor, which corroborates K.M.’s and his father’s 

testimony.

6 Six months later, in March 2006, K.M. told his therapist that Wilson had sexually assaulted him.

7 K.M.’s psychiatrist testified that K.M. was hospitalized, in part, because the seven or eight-year-old boy had reported having 

suicidal ideations (i.e., wanting to kill himself) and hearing voices telling him to hurt his mother.

8 In particular, therapist Sherry Taylor who began treating K.M. in January 2006 and clinical psychologist Lisa Matthews who 

treated K.M. in 2012.

End of Document © 2014 Thomson Reuters. No claim to original U.S. Government Works.