IN THE

TENTH COURT OF APPEALS

No. 10-13-00313-CR

HOWARD HARRIS, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 12-02272-CRF-85

MEMORANDUM OPINION

A jury found Appellant Howard Harris, Jr. guilty on two counts of aggravated 

sexual assault of a child. Because the jury found as true the enhancement paragraph 

alleging a prior conviction of aggravated sexual assault of a child, Harris received an 

automatic life sentence on each count. See TEX. PENAL CODE ANN. § 12.42(c)(2), (g)(1). 

Asserting two issues, Harris appeals. We will affirm.
Harris v. State Page 2

We begin with Harris’s second issue, which asserts that the evidence is 

insufficient. The Court of Criminal Appeals has expressed our standard of review of a 

sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support 

a conviction, a reviewing court must consider all of the evidence in the 

light most favorable to the verdict and determine whether, based on that 

evidence and reasonable inferences therefrom, a rational fact finder could 

have found the essential elements of the crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 

13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the 

responsibility of the trier of fact fairly to resolve conflicts in the testimony, 

to weigh the evidence, and to draw reasonable inferences from basic facts 

to ultimate facts.” Jackson, 443 U.S. at 319. “Each fact need not point 

directly and independently to the guilt of the appellant, as long as the 

cumulative force of all the incriminating circumstances is sufficient to 

support the conviction.” Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). 

In August of 2011, M., the victim, was age 15, and she made an outcry of sexual 

abuse by Harris, her uncle, that allegedly occurred approximately three years before her 

outcry. At the time of trial, M. was age 17. She said that when she was around age 12, 

she spent a lot of time with her younger cousin K.H. and Harris.

M. testified that the first incident happened at the time of a large family 

gathering at another uncle’s house with several other children, aunts, and uncles in the 

summer of 2008. She said that, at the time of the incident, she was alone in the living 

room and asleep on the couch. The other children were in the bedroom, and the adults 

were outside. Harris came inside, woke her up, and told her that when he returned, he 

wanted her to be naked. Harris went outside but soon came back in and locked the 

door. He asked M. why she was not naked, and when she did not respond, he took her 
Harris v. State Page 3

near the kitchen, pulled her pants down, and began to have intercourse with her. It was 

not long before someone knocked on the door, and Harris then ran to the bathroom. M. 

unlocked the door and one of her aunts was there. M. then returned to the couch, and 

she was too scared to tell her aunt what had just happened. 

M. said that, on another occasion that summer, she and her cousin K.H. went to 

the apartment of Meca, Harris’s girlfriend, to do laundry. M. and K.H. were in Meca’s 

bedroom watching television. Later that night, when the power went out, Harris got in 

bed between M. and K.H., and after K.H. went to sleep, Harris woke up M. and told her 

to come to the living room with him. M. said that she followed him and sat on the 

couch. Harris then told her not to tell anyone about their relationship because it would 

hurt his relationship with his brother, M.’s father. M. testified that Harris then pulled 

down his pants and asked her to perform oral sex, which M. did and then returned to 

the bedroom. Harris told her that he would kill her if she ever told anyone.

M.’s mother testified that in 2011, she took M. to the doctor for her annual 

checkup. After her checkup, M. started crying and told her mother that Harris had 

“messed” with her. M.’s mother then contacted the police. Detective Chris Loup of the 

Bryan Police Department was assigned the case, and he arranged for M. to be 

interviewed at the child advocacy center.

Harris argues that the evidence is insufficient because there was no physical 

evidence and because M.’s trial testimony differed in some respects from what she had 

said in her interview at the child advocacy center. Harris asserts that M. testified that 

when Harris first approached her, she was on the couch, but in the interview she said 
Harris v. State Page 4

that they were in the bathroom. At trial, she said that Harris made a second advance at 

her on the first occasion after her aunt had left, but she did not mention that in the 

interview. And lastly, he asserts that in the interview, M. said that her grandmother 

picked her up from Meca’s apartment the next day, but at trial she said that her aunt 

picked her up.

An aggravated sexual assault conviction may rest solely on the testimony of a 

child victim. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2014) (requirement 

that victim inform another person within one year does not apply to person under 17 at 

time of offense); see Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978); Abbott v. 

State, 196 S.W.3d 334, 341 (Tex. App.—Waco 2006, pet ref’d). Moreover, the jury is the 

exclusive judge of the facts, the credibility of the witnesses, and the weight to be given 

to the witnesses’ testimony. Jaggers v. State, 125 S.W.3d 661, 672 (Tex. App.—Houston 

[1st Dist.] 2003, pet. ref’d). As the reviewing court, we “should not substantially intrude 

upon the jury’s role as the sole judge of the weight and credibility of witness 

testimony.” Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The jury can 

choose to believe all, some, or none of the testimony presented by the parties. Chambers 

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). By finding Harris guilty, the jury 

obviously believed the victim’s testimony. Viewing all the evidence in the light most 

favorable to the verdict, we conclude that a rational trier of fact could have found that 

Harris committed the offenses of aggravated sexual assault of a child beyond a 

reasonable doubt. We overrule the second issue.
Harris v. State Page 5

In his first issue, Harris contends that the trial court abused its discretion by 

excluding evidence that M. was diagnosed with a sexually transmitted disease and 

made her outcry immediately after the diagnosis and that there were discrepancies 

about M.’s history of sexual partners. Harris asserts that, from M.’s medical records, 

before M.’s chlamydia diagnosis, she told the nurse practitioner that she had had one 

sexual partner in the last six months, that she had had three total partners, and that she 

had never had sex with anyone who had ever been in prison or jail. Harris claims that 

after the chlamydia diagnosis a week later, M. made her outcry and also changed her 

story in her interview at the child advocacy center, saying there that she had had only 

two partners and that one was Harris, who had previously been in prison.

Harris contends that this evidence was admissible under Rule of Evidence 

412(b)(2)(C), which provides: 

(b) Evidence of Specific Instances. In a prosecution for sexual assault or 

aggravated sexual assault, or attempt to commit sexual assault or 

aggravated sexual assault, evidence of specific instances of an alleged 

victim’s past sexual behavior is also not admissible, unless:

.... 

(2) it is evidence: ... (C) that relates to the motive or bias of the 

alleged victim; ...

TEX. R. EVID. 412(b)(2)(C).

Harris’s theory is that, because M. did not want her mother and family to know 

that she had had a recent sexual partner, M. had a motive to place blame on Harris for 

her chlamydia diagnosis. According to Harris, M. allegedly knew that Harris had a 
Harris v. State Page 6

sexually transmitted disease,1 and to protect herself from punishment for her sexual 

activity and chlamydia diagnosis, M. fabricated her allegations against him.

We review a trial court’s ruling on the admissibility of evidence for abuse of 

discretion. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an 

abuse of discretion standard, an appellate court should not disturb the trial court’s 

decision if the ruling was within the zone of reasonable disagreement.” Bigon v. State, 

252 S.W.3d 360, 367 (Tex. Crim. App. 2008).

First, we agree with the State that M.’s alleged inconsistent statements about the 

number of her sexual partners is not evidence of “specific instances” of sexual behavior 

that would implicate Rule 412. Moreover, M. did not testify about her sexual history, so 

the prior alleged inconsistent statements would not even be admissible under Rule 613. 

The trial court therefore did not abuse its discretion in excluding evidence of M.’s 

alleged inconsistent statements about the number of her sexual partners.

Second, regarding the exclusion of evidence of M.’s chlamydia diagnosis that she 

received just before making her outcry, we will assume without deciding that evidence 

of M.’s chlamydia diagnosis could be evidence of a specific instance of her past sexual 

behavior.

2

Rule 412 creates “an extremely high hurdle” for the admissibility of evidence of 

specific instances of an alleged victim’s past sexual behavior. Todd v. State, 242 S.W.3d 

126, 129 (Tex. App.—Texarkana 2007, pet. ref’d). In addition to meeting the rule’s 

 

1

In arguing for admissibility, Harris asserted to the trial court that he was diagnosed with herpes in 2007 

and that “everyone” in the family knew that he had a sexually transmitted disease.

2 Harris did not introduce or proffer evidence that chlamydia is transmitted only sexually, nor did he 

introduce or proffer evidence that he did not have chlamydia at the time of the alleged assaults.
Harris v. State Page 7

requirements, the proposed evidence must demonstrate a “definite and logical link” 

between the victim’s past sexual behavior and the alleged motive or bias. See id.; 

Stephens v. State, 978 S.W.2d 728, 734-35 (Tex. App.—Austin 1998, pet. ref’d). 

In this case, we agree with the State’s argument that Harris’s theory for the 

admissibility of M.’s chlamydia diagnosis is merely speculative. First, other than his 

attorney’s argument to the trial court during the offer of proof, there is no record 

evidence that M. knew that Harris had a sexually transmitted disease such that she 

could place blame on him for her chlamydia diagnosis three years after he allegedly 

sexually assaulted her. 

Next, there is no evidence that M. was seeking to hide her sexual activity from 

her parents and family, no evidence that M.’s parents were unaware that she was 

sexually active, and no evidence that her parents would punish her for being sexually 

active and contracting chlamydia. Finally, and perhaps most importantly, there is no 

evidence that M. blamed Harris for her contraction of chlamydia. Harris’s theory that 

M. fabricated her sexual assault allegations against him to explain her contraction of 

chlamydia is merely speculative; there is no evidence to support it, much less a “definite 

and logical link” to support its admissibility. See Stephens, 978 S.W.2d at 734-35; Cooper 

v. State, 959 S.W.2d 682, 684 (Tex. App.—Austin 1997, pet. ref’d); see also Nevelow v. State,

No. 14-10-00332-CR, 2011 WL 2899377, at *6 & n.4 (Tex. App.—Houston [14th Dist.] July 

21, 2011, pet. ref’d) (mem. op., not designated for publication). The trial court did not 

abuse its discretion in excluding the evidence of M.’s chlamydia diagnosis. We overrule 

issue one. 
Harris v. State Page 8

The trial court’s judgment is affirmed.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed December 11, 2014

Do not publish

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