Opinion filed May 22 , 2014



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 12

- 00 102

- CR

__________ BLAINE JASON KINSEY , Appellant

V

.
THE STATE OF TEXAS , Appellee

On Appeal from the 13th District Court

Navarro County, Texas

Trial Court Cause No. 33 , 117

M E M O R A N D U M O P I N I O N The jury found Blaine Jason Kinsey guilty of sexual assault and assessed punishment at confinement for ten years and a fine of $10,000

. See T EX

. P ENAL C ODE A NN

. § 22.011 (West 2011 ). The trial court suspended the imposition of the2 sentence and placed Appellant on comm unity supervision for ten years. We
affirm. Appellant raises four issues on appeal but does not challenge the sufficiency
of the evidence

. Nevertheless, because we find that the trial court erred in the admission of certain evidence, we will review the testimony and evidence in some
detail for use in our harm analysis.
S.C. report ed that
, in the evening hours of May 2, 2010, Appellant sexually
assaulted her. S.C. testified that she was twenty

- eight ye ars old

. She was married
, but she and her husband had been separated for five years. S.C. and her husband were the parents of three children; the children live d with their father.
S.C. told the jury that she first met Appellant i n April 2010

. S he was living
with her cousin Zach and his wife Amanda at that time

. Tim Kristin was Zach and
Amanda’s next

- door neighbor. On the da y that Appellant and S.C. f irst met, S.C. was visiting at Tim’s house and Appellant stopped by

. The full extent of S.C. ’s testimony about the remainder of that evening is that
, later in th e evening
, Appellant gav e her his cell phone number and told her that
, if she “wanted to hang out or anything [,] that [she] could call him

. ” Contrary to Appellant’s description of the events of that first meeting, she, in effect, told the jury that it was not until a few days later that she first we nt to Appellant’s house . She also testified that she never had consensual sex with Ap pellant. Appellant’s version of what transpired on the night of that first meeting is somewhat different, as are Appellant and S.C. ’s versions of what happened between that first meeting in April and their last meeting i n the evening hours of May 2, 2010. Appellan t testified that a t the time of the incident made the basis of this case, he was a paramedi c for the City of Mexia

. Appellant was divorced. His

ex

- wife, the mother of h is children
, had custody of the children
, and Appellant had standard visitation rights with the m

.3 The first weekend in April 2010 at the end of a visitation period, Appellant
returned the children to their mother around 6:00 or 6:30 in the evening

. He testified that after he dropped his childr en off with their mother, he passed by
his friend Tim’s house. Tim and a friend, Terry, were sitting outside
, an d Appellant stopped . While Appellant was there
, a young lady came out of Tim’s
house ; she was introduced to Appellant as S.C. They all sat around and visited and
drank beer for about one or one and one

- half hours

. At some point in time
, Terry left, Tim had to finish mow ing, and Appellant and S.C. continued to visit

. Appellant testified that a s he and S.C. were visiting, Appe llant asked her whether she wanted to go get something to eat, have drinks, or “even go

. . . to my ho use and watch a movie.” According to Appellant, S.C. told him that she had rather go to his house because it would be c heaper on both of them

. He walked her
to Amanda’s house and visited with Amanda and Zach while S.C. went into the house and changed clothes. S.C. came out of the house in about thirty minutes
, and they left and went to Appellant’s house

. According to Appellant’s testimony about that first meeting, when he and
S.C. got to hi s house, they sat outside and dr a nk beer, listen ed to music
, and talk ed
for about an hour

. Their conversation advanced fr om “flirtatious” to sexual

. He
testified that a t one point in time, S.C. looked at him and asked him what was on his mind. He asked her whether she really wanted to know, and when she said that she did, he leaned in and kissed her; s he kissed him back . Appellant told the jury that at some point in t he conversation that night S.C. told him that she did not wear
underwear and that he took that as a sexual advance toward him . They went in to the house

. After they went inside, Appellant got some beer from the refrigerator
, and they began to w atch a mov ie

. About fifteen to twenty minute s into the movie, Appellant said that he and S.C. “started kissing and fondling one another. ” In the4 proc ess, he removed her shirt and asked her whether “she wanted to carry this any further? If she wanted to go back to the bedroom and she immediately got up and
walked back to my bedroom.” They went to the bedroom and removed their clothing, and according to Appellant , he started “perf orming oral sex on her.” Appellant’ s t estimony was that t hey then “had sex” for thirty

- five to forty

- five
minutes and
, after about thirty minutes of conversation
, “ had sex again.” S.C. stopped him during the second time because she thought that he had torn her in the vaginal area. He looked
, and they both had some blood on them . They cleaned each other up, got dressed
, and returned to the living room; they watched TV for a
while and t alked

. S.C. decided it was time for her to go
, and Appellant took her
home.
On cross

- examination by the State, Appellant testified that he asked S.C. whether it was okay to not wear a condom and that S.C. said it was okay . Contrary to S.C.’s testimony t hat Appellant gave her his cell number at that first meeting and then left, Appellant told the jury that within two to three hours after he and
S.C. first met, they had oral sex as well as consensual sexual intercourse and that he ejaculated into her.
Some few days after that first meeting at Tim’s house
, according to S.C. ’s testimony, she texted Appellant and asked him whether he wanted to go hear Amanda sing; he agreed

. S.C. testified that it turned out that Amanda was not going to sing until later that evening and that S.C. and Appellant went to his house to watch a movie and hang out until time for Amanda to sing

. Amanda testified that
, on occasion
, she would sing in public with a friend

. Per arrangements between S.C. and Appellant, Amanda took Appellant and S.C. with her to a place called “Fat Daddy’s” in Waxahachie ; she was to sing at “Fat Daddy’s.” According to Appellant
, t hey were there a few hours , drinking beer and listening to people sing
, and then they left. Amanda testified that o n the way back5 to her house , they stopped by a Taco Bell to get something to eat ; that
, when they got bac k to her house, she went inside; and that Appellant and S.C. stayed outside

. Amanda also testified that S.C. came in and asked whether Appellant could come in and hang out a while. Amanda told her that it was too late. S.C. went outside to tell Appellant ; he left and S.C. came in

. Appellant ’s version of the events of the days after their first meeting is tha t he and S.C. communicated by text message and by phone calls . On April 12
, he
was at work when S.C. asked him whether he wanted to get together with her the next day, his day off ; tha t was also the day that they were going to hear Amand a sing. He did, and he picked her up aro und noon that next day

. They went to his
house to f inish watching the movie they had started watching earlier. Appellant
testified that t hey did not have sex that day . After the movie
, Appellant and S.C.
went to Amanda’s house. Appellant, S.C. , and Amanda rode in Amanda’s vehicle
from there to Fat Daddy’s in Waxahachie , the place where Amanda was supposed to sing

. There were different versions about what happened after they returned to Amanda’s from Fat Daddy’s. We have already related Amanda’s testimony about the events that occurred after they had returned to her house. S.C. recalls that the evening ended differently than the testimony from Appellant would indicate. S.C. testified that Appellant asked her to go home with
him and also asked whether she want ed to do something else . She told him that she was going inside and going to bed, and that is what she did; he went home. On the other hand, Appellant testified that
, when they arrived at Amanda’s
house
, S.C. asked him to stay outside. He said that S.C. went in to the house and
that
, after about five minutes, she came back out of the house and asked him whether he wanted to spend the night there. Appellant’s testimony was that he6 declined because he had t o go to work the next morning and did not have any extra

un iforms with him. Appellant said that he and S.C. continued to communicate by text and by an occasional phone call

. About a week before a festival known as “Derrick Days,”
S.C. contacted him t o see if he wanted to go to the festival w ith her. He declined. Appellant had a girlfriend at the time
, and he testified that he was trying to hide
from her the fact that he was seeing S.C . He further testified that
, for abou t a week
, S.C. did not res p ond to his calls or to his texts . Later, on April 30
, Appellant

rec eived a text from S.C. in w hich she gave him a new cell phone number. They began commun icating again

. Appellant testified that on May 2, 2010, he went fishing with his children. They fis hed until around 3:30 or 4:00 in the afternoo n and went back to his house
so that the children could clean up and get ready to return home to their mother

. S.C. also had gone fishing that day. She was fishing with Zach, Zac h ’s friend Sean Hughes
, an d Zac h’s oldest son . Both Appellant and S.C. agree that they texted back and forth quite a bit that day while they were fishing and that they were

te x ting about getting together later after Appellant had t a k en his children home

. Although they agreed on the l anguage used in the multiple texts exchanged that day, Appellant and S.C. disagree d on the co ntext and on the meaning of the content. In one of the text messages from Appellant to S.C. , he gave her some options for their evening together. One of those options was to go for drinks
, and
the other was: “O r we can just go to my house, get naked and freaky in the bed the

rest

— or [sic] the night.” She responded, “Aww, okay.” S.C. testified that the reply to Appellant was a sarcastic one. She intended it to be a message meaning
, “H ere we go again

. ” S.C. said that Appellant knew what she meant.
S.C. testified that this was not the first time that Appellant had made such comments to her. And, when h e had made sexually suggestive remarks to her7 before
, she t old Appellant that she wa s aggravated by those types of remarks

. However, when Appellant had made those remarks before, S.C. assumed that he had been drinking or that he was just trying to be funny

. Although contested by Appellant
, S.C. cl aimed that
, in between tho se messages , he phoned her to say that he was “just kidding and that he wo uldn’t do anything like that.” She told him on the phone that “it wasn’t going to happen ” and asked “ if he was okay with just having drinks. ” He also wrote, “I’m just playing with you honestly.” She responded, “It’s cool. ” Appellant asked if s he was “up for that last idea .” She responded, “Whatever. Sure.” He testified that “the last idea” referred to the one
about getting “naked and freaky in the bed. ” Appellant also took the “Aww, okay” response to mean that S.C. wanted to have sex because they had already had sex
twice

. She thought that the “last idea” referred to the fact that they wou ld have
drinks. Later, she texted him a “winkie face” emoticon

. Appellant concluded that
there were at least two consents for sex

— three
, if one cou nts the “winkie face.” When Appellant to ok his children to their mother’s house at the end of the
visitati on on May 2, he knew that S.C. had not yet returned home from the fishing trip. He decided to stay and have dinner with his children, his ex

- wife
, and her boyfriend
, and after dinner
, he went to Amanda’s house to meet S.C

. Later, he went to the lake to pick her up from the place where she was fishing. They went to the Taco Shop to get S.C. something to eat
, and then they went to his house to

wat ch a movie

. S.C. testified as to her recollection of the events that took place in the evening hours of May 2 after they arrived at Appellant’s house. When they got back to Appellant’s house, they went in; Appellant drank some beer and t hen went
to shower . She testified that
, while Appellant showere d, she watched a movie

. When Appe llant came out of the shower, he sat down on the couch next to her; she moved away from him . He “scoot ed ” closer to her, and he kissed her. She again8 moved away from Appellant, and she let him know that she “didn’t want that.” Appellant became angry and began to yell. He told S.C. that he had taken her “fat
f ' ing” cousin and her for drinks and had bought them food and that s he should kiss
him . Appellant finally trap ped her between him and the armrest of the sofa. He was on top of her. He had his fore arm across the top pa rt of her chest and had one leg on the couch and one leg on the floor; he was trying to get her pan ts unbuttoned . While Appellant was attempting to unbutton S.C.’s pants, she was saying “no” and trying to get her legs up and in betwee n Appellant and her. She
was not able to accomplish that. Appellant had trouble getting S.C.’s pants unbuttoned

— the pants had double
buttons

— and Appellant got up so that he could get her pants off her. When he got up, he let her go
, and she tried to get away. But he grabbed her

— at first by her jeans and then by the hair on the back of her head. She was on her knees trying to
crawl off the couch. He had a lready begun to hit her, and as she tried to crawl away, he began to hit her head on the wooden part of the c ouch . During S.C.’s testimony, she looked at the photo of the couch and living room and made the comment to the jury that a table had been moved, “it was in a different spot” on the night of the alleged assault. In another part of her testimony , she said, “That stuff
was not on that couch.” S.C. also testified that there had been a blanket on the
couch that “was out like

. . . he had slept on it or something.” She testified that the blanket that was on the couch on the night of the assault was not in the photograph that was taken later by law enf orcement personnel

. S.C. said t hat the next thing she remembered after Appellant hit her head on the wooden part of the couch was that she had been turned over and that he “had
had s ex with me, and was getting off of me.” She had neither her pants nor panties

on; they had been removed . Appellant had his penis inside her vagina; she had not consented to that. Appellant got two wash cloths, cleaned himself with one, and9 gave the other one to S.C. for her t o use to clean herself . He used his, but she did
not use hers

. S.C. told the jury that she was afraid, “freaking out.” She did not know w hat he was going to do . Appellant kept mumbling that he did not know w hat he was going to do . She told him that “ it was okay” and asked if he would just take her
home. She told him t hat she “wasn’t mad or anything . . . that it was fine.” She said that she just w anted to go home. According to S.C., Appellant did not want to take her to Zach and Amanda’s
“because th ey would know that someth ing had happened.” She could tell that she had blood on her, that she had been injured, and that her shirt had been torn. She told Appellant that she would just tell everyo ne that she had fallen . She was desperate an d just wante d to “get out of t here” and “ge t away from him.” She
assured him tha t she would not say anything . S.C. testified that, after the assault, Appellant threatened her. He told her what he did for employment and said that it would be a shame if something wer e to happen to other people who lived in the
house. She took that as a threat that he was c apable of carrying out . She was more
afrai d than she was in pain . She finally got him to agree to take her to Hughes’s
house

. S.C. felt safe with Hughes, a man with whom she had had a one

- time sexual
encounter and with whom she was now just friends. This is the same Hughes who
was a friend o f Zach and Amanda and with whom S.C. had been fishing on the
date of the alleged assault . S.C. testified that she wanted A ppellant to drop her off at the corner close to Hughes’s house so that she could just run in but that Appellant said he did not want to do that because it would make it look like he ha d done something wrong

. Appellant ’s version of the events of that even ing was as follows: when S.C.
and he arrived at his house, they went in
, and he got some beer from the10 refri gerator. They began to watch the movie
, and at some point, they began kissing and “caressing.” He told S.C. that he was going to take a shower because he had been fishing all day and was “ pretty nasty.” There is no testimony that S.C. cleaned up or showered. Appellant said that he showered, put on a pair of basketball shorts
, and returned to the living room. When he came back into the living room, S.C. was lying on the couch and was covered with a brownish

- colo red blanket that is shown
in a photo that the law enforcement officers to ok of his living room and couch

. He uncovered her and started kissing her. H e unbuttoned her pants ; they “ slid her pants off her legs” ; and he performed oral sex on her. After tha t, they had sexual
intercourse ; he ejaculated into her again

. Appellant told the jury that after they had sexual intercourse, h e “wiped [himself] off, and she

- - I gave her a rag and she wiped herself off” and that they got dressed and began having a conversation . During the conversation, S.C. ’s demeanor changed “a whole bunch
, ” and she seemed sad. She either told him that she was sad because of her gr andmother’s recent death, or she had told him about the death earlier and he just assumed that was why she was sad. At any rate, Appellant testified that he expressed his sorrow to her

. After twenty

- five to thirty minutes, S.C. told him that she wanted A ppellant to take her to a friend’s house. The friend was going to give her a ride to a new job the following morning . As they drove there, he noticed that she “jus t wasn’t acting right.” Appellant told the jury that , when they got to the friend’s house, as S.C. got

out of his pickup , she leaned in and either hugged him or kissed him and said that
sh e would call him later

. It took a while for anyone to come to the door and let
S.C. in. Appellant offered to let her use his phone to call and let her frien d know she was there (the battery had gone down on her phone). She declined
, and in a11 short while
, someone let her in and Appellant left. He noted that the time on the
clock in his pickup was 10:49 p.m. when he let her out

. They never spoke again

. S.C. testified that w hen she and Appellant arrived at Hughes’s house, she got out of Appellant’s pickup , went to Hughes’s door
, and began banging on it. Hughes finally came to the door. He had a gun with him when he answered the door; i t was “the middle of th e night
, ” and Hughes’s two children live d with him. According to S.C. , when Hughes answered the door, he looked at her and said, “What the hell happened to you?” He wanted to know whether Appellant had hurt
her. S.C. told the jury that she was afraid because Hughes still had the gun and Appellan t was still sitting in his pickup . Therefore, she told Hughes that she had fallen. As soon as she was inside the house, S.C. locked the door and told Hughes what had happened , that Appellant “ did this to [her]

. ” Hughes would not allow S.C. to take a shower or to clean up. She did
, however, change her shirt and wash her face as much as she could until Hughes told her to stop and to call the police

. Hughes testified before th e jury. He had known Amanda f or about fourteen

years . He knew S.C. through Zach and Amanda and had known her for one and

one

- half to two years. He and S.C. had a one

- t ime sexual encounter.
Around midnight on the night of the offense, Hughes’s son woke him up and
told him that someone was knocking on the door . When Hughes went to the door and opened it, S.C. was standing there and was covering her face with her hand

. When S.C. came into the house , Hughes could see that her face was “pretty bloodied up” and that her shirt was torn . She had blood on her clo thes and looked “rough.” Hughes told the jury that S.C. “was terrified,” “ scared.” After S.C. told him what had happened, Hughes called Amanda so that Amanda could come and
take S.C. to the hospital. S.C. “was bleeding pretty bad.” Amanda came and took
S.C. to the hospital

. Hughes did not see S.C. anymore tha t night.12 Amanda testified that
, between 11:00 and 12:00 on the night of the alleged

o ffense, she received a telephone call from Hughes regarding S.C . She said she got dressed and drove to Hughes’s house

. W hen she got there
, she noticed that
S.C. “looked horrible.” S.C. ’s face was bloody ; one side of her face was puffy ; her clothes were ripped ; “and she was sitting on the couch bawling her eyes out.”
Amanda made sure that S.C. did not wash anything . Amanda put the shirt that
S.C. had worn in a plastic bag and took S.C. to the hospital

. The State introduced the medical records from Navarro Regional Hospital
that pertained to the event . Also, Debbie Teague Grant, a registered nurse and certified sexual assault nurse examiner, testified as did Dr. Robert Phillips. Grant was on duty in the emergency room when Amanda broug ht S.C. in. Dr. Phillips was the emergency room physician on duty at the t ime . Both Grant and
Dr. Phillips detailed the history given to them by S.C. and the bruises, sc rapes, contusions, abrasions
, and other injuries they found on S.C. ’s body. A rape kit was performed. Dr. Phillips testified that the results of the exam could be from a sexual assault or not, but it was his opinion that S.C. ’s condition was consistent with the alleged assault

. Grant also testified that the examination was consis tent with the history of assault given by S.C. and that , based upon what she saw and what S.C. told her, she was of the opinion that t his was a sexual assault. On the night of the alleged assault, Todd Henkel, a patrol deputy for the Navarro County Sheriff ’s Office, was dispatched to Navarro Regional regarding a
sexual assau lt complaint . He met with S.C. and noted that she had an injury to her lip, an injury to the side of her face, and “bruises to her arms and stuff.” S.C.

name d Appellant as her assailant. On May 3, 2010, S c ott Stephens was working as a detective for the Navarro County Sheriff ’s Office. He and Detect ive Sergeant Hank Bailey went to Appellant’s house to talk to him about the alleged assault. They knocked on the13 doors to the house
, but no one was there . Through the back door
, they could see a laundry basket that contain ed what appeared to be the wash cloths that S.C. had
desc ribed to them . The officers obtained a search war rant. The following morning
, th ey execu ted the warrant and also arre sted Appellant

. The day after the arrest, Detective Stephens saw S.C. again. She told him
that there had been no other se xual encounters with Appellant . She also showed him additional bruises that had just begun to show. D etec tive Stephens testified
that S.C.’s injuries were consistent with the allegations that S.C. had made. Four days after she was examined at Navarro Regional, she was seen by
Dr. Kim Evans, an OB/GYN . Dr. Evans testified that when she first saw S.C. , s he appeared dis he v e led, very emotional
, and at time s tearful . She seem ed “appropriately upset” for someone who had made a claim of sexual assault

. Dr. Evans desc ribed the bruises, lacerations
, and sc ratches that she found

“ throughout ” S.C. ’s body. She als o found excoriations or sc ratches to S.C. ’s perineum

. Even after four days, t hose sc ratches were consistent with the sexual
assault that S.C. reported . Dr. Evan s ’s assessment w as “adult sexual abu se.” “The exam findings were

- - are highly suggestive of and can be consistent with the alleged se xual assault.” Dr. Evans also told the jury that the sc rapes to the perineum could be consisten t with either consensual or non consensual sex. Appellant called Dr. Tiffany Gab b l e, an OB/GYN, to testify . She review ed the medical records from Navarro Regional as well a s Dr. Evans’s records

. Dr. Gab b le disagreed with Dr. Phillips’s findings, with Grant’s findings
, and with Dr. Evans’s findings. She saw nothing in any of the records that would indicate
that a sexual ass ault had occurred . The injuries in t he photographs were superficial; the m ajority of the bruises were old; and the sc ratches did not look like
assaultive sc ratches . The injuries to S.C. ’s lip, according to Dr. Ga b ble, were14 nothing more than classic he rpes lesions , which bleed easily . She did not see any
excoriation s in the photograph of S.C. ’s perin eum

. Dr. Phillips later testified again. Among other things, he said the injuries
that he saw to S.C. ’s lip were inconsistent with a herpes outbreak, but consistent

w ith a traumatic injury . There is very little bleeding when a lesion ruptures

. Dr. Evans also testified that any herpes involvement was no t related to this
incident

. Mary Ann Bell
, a licensed professional counselor who began treating S.C. in
December 2010 , testified for the State

. Bell explained the symptoms of post

traumatic stress disorder (PTSD) and said that S.C. exhibited many of them
, such as difficulty in falling or staying asleep; nightmares and flashbacks; anxiety attacks; increas ed irritability; exaggerated startle response; fear ( often stays in the
house with the blinds closed because of fear ) ; avoidance (tries to avoid thinking or talking about the event and keeps herself busy in an effort to do that); difficulty recalling certa in aspects of the event; and a numbing of her emotions (if one stays busy, one does not have to feel). In addition to his own testimony, A ppellant presented wit nesses who
testified to his reputation as a truthful and peaceful person. He also called a
witness who testified that S.C. had a reputation as being an untruthful person.
T o show that S.C. ’s injuries were related to an earlier incident, Appellant
introduced Na v arro Regional emergenc y room records from April 20, 2010. On that date, S.C. was attempting to take a picture down from the wall and she fell
some five feet from a dresser to the floor. Dr. Phillips compared those records with the injuries found during S.C. ’s May 2 emergency room visit. He testified that there was no correlation between the April 20 injuries and the May 2 injuries

. In his first issue, Appellant challenges the trial court’s decision to admit evidence that Bell had diagnosed S.C. as suffering from PTSD. Appellant15 concedes that “the evidence of the counselor’s diagnosis of PTSD was relevant” in this case “because consent was an issue” but argues that it was an abuse of
di sc retion in light of Rule 403 to allow “this prejudicial evidence in this case.” Appel lant argues that
, because S.C. ’s “ credibility was the sole issue in this

case ,” Bell’s testimony “ that [ S.C. ] was diagnosed with PTSD was extremely prejudicial and was the kind of testimony that was impossible to rebut.” A trial court’s ruling on the admissibility of evidence is reviewed for an
abuse of di sc retion. De La Paz v. State , 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We will uphold a trial court’s ruling if it is correct under “any theory of law applicable to the case.” Romero v. State , 8 00 S .W.2d 539, 543 (Tex. Crim. App. 1990). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the da nger of unfair prejudice.” T EX

. R. E VID

. 403.

‘ Unfair prejudice ’ does not, of course, mean that the evid ence injures the opponent’s case

— the central point of offering evidence. Rather it refers to ‘ an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’” Cohn v. State , 849 S.W.2d 817, 820 (Tex. Crim. App. 1993) (quoting Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 403.2 (1988) )

. Appellant did not challenge the expert’s qualifications at trial, and he does not do so on appeal. The State designated Bell as an expert witness prior to trial, and Appellant took Bell on voir dire outside the presence of the jury. Appellant
asked about Bell’s experience, her education, and whether she had ever been f ired. At the conclusion of the voir dire, Appellant objected “under Rule 403” and argued
that Bell’s te stimony was offered “to put [ S.C. ’ s] testimony up there twice” and that “this is just a way to bring in hearsay evidence and to re

- emphasize the16 emotion al impact of this alleged crime.” The trial court overruled the objectio n and allowed Bell to testify. Appellant obtained a running objection. According to Bell, PTSD is diagnosed when the f ollowing symptoms are present: (1) a life

- threatening event ; (2) recurrent recollections of the event; (3) persistently avoiding things that trigger memories of the event; and (4) anxiety brought o n by thinking about the event. Bell testified that S. C. suffered from PTSD; that, among other things, she suffered from nightmares, anxiety attacks, increased irritability, avoidance issues, and fear; and that these symptoms are
consistent with the sexual assault the victim had desc ribed. On cross

- examinati on, Bell agreed that she could not say what caused the PTSD but could testify as to the symptoms she observed. Bell admitted that she does not investigate the cause but
relies on what the patient tells her. Bell told the jury that she studies the patient ’s outward appearance and what is happening “on the inside and being familiar with seeing this several times over and over again as far as what really is a sympt om and what is not a symptom.” Although relevance has been conceded, we note that Bell’s exper t testimony
was relevant to the issue of consent as circumstantial evidence that S.C. suffered
from some kind of trauma. Although Appellant contends that this testimon y was “extremely prejudicial,” he fails to explain how evidence that the victim suffered
from PTSD is unfairly prejudicial. By its nature, the evidence against an accused is prejudicial, but to be inadmissible, it must encourage a verdict on an improper
basis. See Cohn , 849 S.W.2d at 820 . Appellant also argues that Bell’s testimony is “impossible to rebut because an alleged victim cannot be compelled to submit to an examination by a defense expert .” However, Appellant fails to explain what he would hope to gain through an additional exp ert assessment. We find no basis for the exclusion of this otherwise relevant and admissible expert testimony. Bell did not express an opinion on whether she believed S.C.17 was telling the truth or whether S.C. could be believed. Bell t old the jury what she
observed and explained that these symptoms were consistent with trauma based on her experiences with patients suffering from PTSD. Bell also agreed that this was her opinion and conceded that ano ther expert might reach a different conclusion.
Her te stimony did not cross the line between assisting the trier of fact and attempting to replace the jury’s role as decision maker. Accordingly, we cannot conclude that the trial court’s decision to admit Bell’s testimony was an abuse of
disc retion. Appellan t’s first issue is overruled. In his second issue on appeal, Appellant maintains that certain testimony from Detective Stephens regarding the disposal of a blanket and S.C.’s panties was inadmissible hearsay

. We have noted that S.C. testified that
, at the time of the assault
, there was a
blanket that was out on the couch “like [ Appellant ] had slept on it or something. ” At trial, a photograph of Appellant’s living roo m was admitted into evidence. S.C. looked at the photograph and testified that the blanket that was on the couch the night of the assault was not there. T he photograph shows two folded blankets on opposite ends of the couch , but S.C. testified that the blanket that was on the couch that night was not in the picture that the officers took later

. Appellant testified, however, that the two blankets in the photograph were still at his house on the day
of trial and that those we re the only blan kets that he ever owned. At trial, S.C. was never asked if she knew what happened to th at blanket

. During cross

- examination of Detective Stephens, defense counsel established that the officers did not find blood in Appellant’s pickup , on his couch, or anywhere else in his house. Detective Stephens also agreed that it was no t unusual to put a used washcloth in a dirty clothes hamper. After defense counsel
establish ed that there was no investigation to determine whether anyone else18 caused S.C. ’s injuries, the following exchange occurred between Appellant’s lawyer and Detective Stephens : Q. You know, if a guy w as covering up a sexual assault would h e tend to leave the evidence just lying around? A. I wouldn’t, but, you know, I can’t answer for him. Q. Well, let’s say a guy had sexually a ssaulted a girl and she cleaned herself up with a rag, do you think he just goes, so, okay, we’ll just put them in the dirty clothes hamper and wait for the cops to find it. Does that seem normal? A. Normal, no, but. Q. Okay. W ould it seem normal for , I mean, we’ve heard testimony that [ Appellant ] , that [ Appellant ] drov e [ S.C. ] to Sean Hughes’s house, and waited there for the light to come on and the door to open so that she could go in the house. Does a guy who just sexually assaulted a girl sit around and wait so somebody can identify his truck? A. I, you know, I wouldn’t, but. Q. You wouldn’t, would you? A. No. After Appellant vigorously challenged the evidence as showing nothing more than consensual sex because a guilty person would have tried to hide or clean up any evidence, the State attempted to establish that Appellant had disposed of a certain item of evid ence in the case . The State began its redirect examination of Detective Stephens by asking him whether S.C. had told him that there was a blanket covering the cou ch during the assault

. Detective Stephens answered affirmatively. He also testified that S. C. told him that the panties that she wore that night were missing. Detective Stephens testified that the police did not find any women’s panties and that “the blanket [ S.C. ] desc ribed to us was not there.” The State asked, “What did [ she ] say the de fendant did with the blanket?” Appellant’s attorney objected to the question as calling for hearsay . The trial court19 overruled the objection. Detective Stephens then told the jury that S.C. told him that Appellant put the blanket “in a black trash bag” a nd that, “when he left the residence, he took it with him and put it in the trunk.” 1
We review a trial court ’ s decision to admit or exclude evidence under an
abuse of disc retion standard. Montgomery v. State , 810 S.W.2d 372, 391 (Tex.
Cr im. App. 1991)

. We will reverse a trial court ’ s ruling only if it is outside the “zone of reasonable disagreement.” Id. With some exceptions and exemptions, an

out

- of

- court statement that is offered to prove the truth of the matter asserted is
inadmissi ble hearsay. T EX

. R. E VID

. 801(d)
, 802. On appeal, t he State argues that Appellant “clearly opened the door to hearsay testimony regarding the Appellant removing evidence from the sc ene of
the crime.” The State contends that it “was entitled to question the detective about what his investigation turned up regarding the removal of evidence” after Appellant “elicited testimony regarding what a sexual offe nder may do in the
situation.” We disagree.
Even if we assume that testimony about whether App ellant had taken steps to dispose of potential evidence was not relevant (which we do not hold because, to the contrary, it was relevant ) , Appellant’s cross

- examination of Detective Stephens might have made it relevant. But it did not invite otherwise inadmissible hearsay
testi mony on that issue. See Kipp v. State , 876 S.W.2d 330, 337 (Tex. Crim. App. 1994) (“‘Opening the door’ or ‘inviting’ testimony that would otherwise pertain to an inadmissible subject matter does not mean that such testimony is ne cessarily
‘invited’ into evidence in any form, including hearsay.”)

. As the Fourteenth Court of Appeals has held, relevance and hearsay present different considerations.
Daniels v. State , 25 S.W.3d 893, 898 (Tex. App.

— Houston [14th Dist.] 2000, no

1 The evidence shows that Appellant was driving a pickup. Although the record indicates that S

. C

. told Detective Stephens that Appellant put the trash bag in the “trunk
, ” we are assuming that “trunk” in the record should actually read “truck.”20 pet.). The court must view the admissibility of the evidence through two different
lens es . First, was the door opened to allow otherwise and theretofore non relevant
evidence? Second , was the witness testifying from personal knowledge or is there an exception under the rules ? Id. Here, even if Appellant “ opened the door ” to make otherwise non relevant testimony then relevant , the testimony nevertheless was inadmissible hearsay. The State could have recalled S.C. , and she c ould have
testif ied as to the relevant fact of what she personally observed about the disposal
of the blanket ; the State did not do that

. Instead, the State offered , and the trial court admitted, inadmissible hearsay evidence from Detective Stephens concerning
S.C. ’s out

- of

- court statement. The statement was clearly offered to prove the truth of the matter asserted: that Appellant had disposed of the blanket. We have already noted that Detective Stephens testified that S.C. had told him the panties she wore that night were missing

. However , as far as the disposal of any pan t i es by Appellant is concerned, t he State’s question to Detective Stephens inquir ed only about the trash bag and the blanket, not about a trash bag
and mi ssing panties

. After the detective was allowed to testif y as to the hearsay
statement about what Appellant did with the blanket , Appellant’s attorney asked Detective Stephens: “Now let’s say that , let’s say that a person sexually assaults

some body on a blanket and then gives somebody a rag, a rag to clean up wi th, does it make any sense that that person would take the, take the trouble to take the blanket and put it in a black trash bag, and take some underwear and put it in a black trash bag , but then leave the rags that had been, that the person had cleaned

up with just sitting in the hamper?” (emphasis added). Counsel for Appellant
continued , “I mean, typically, especially a person who supposedly had already
hidden underwear and hidden a blanket . . . . ” (emphasis added). As we have
noted
, though S.C. migh t have told law enforcement officers earlier that Appellant disposed of her panties in a trash bag, neither Detect ive Stephens nor anyone else21 had testified to the disposal of S.C. ’s panties

. The only reference to that came when Appellant’s lawyer asked t he question s that we have just quoted.
W e hold that the trial court erred when it admitted th e testimony about the
removal of the blanket over Appellant’s hearsay objection , but the objectionable testimony did not include any testimony about panties

. Having determined that the
trial court erred as to the blanket , we must determine whether Appellant was sufficiently harmed by the admission of the hearsay testimony. See T EX

. R.
A PP

. P. 44.2(b).
The er roneous admission of evidence constitutes non constitutional error. Kirby v. Sta te , 208 S.W.3d 568, 574 (Tex. App.

— Austin 2006, no pet.) ; see Casey v. State , 215 S.W.3d 870, 885 ( Tex. Crim. App. 2007)

. Non constitutional error requires reversal only if it affects the substantial rights of the accused. See
T EX

. R. A PP

. P . 44.2(b) ; Barshaw v. State
, 342 S.W.3d 91, 93 (T ex. Crim. App. 2011)

. When we a ssess potential harm, our focus is not on whether the outcome of the trial was proper despite the error but
, rather
, on whether the error had a substantial or injurious effect or influence on the jury ’ s verdict. Barshaw
, 342
S. W.3d at 93

– 94. We re view the entire record to asc ertain the effect or influence of the wrongfully admitted evidence on the verdict. Id. at 93; see Coble v. State , 330 S.W.3d 253, 280 ( Tex. Crim. App

. 2010) (in conducting harm analysis “we examine the entire trial record and calculate, as much as possible, the probable impact of the error upon the rest of the evidence”). We consider all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged error, and how the evidence might be considered in
connection with other evidence in the case. Barshaw
, 342 S.W.3d at 94. We may also consider the jury i nstructions, the parties ’ theories of the case, closing22 arguments, voir dire, and the extent to which the State emphasized the error. Id. ; Morales v. State
, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)

. We mu st reverse a conviction for non constitutional error if we have “grave
doubt” about whether the result of the trial was free from the substantial influence
of the error. Barshaw
, 342 S.W.3d at 94. “‘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 harml essness of the error.’” Id. (quoting Burnett v. State , 88 S.W.3d 633, 637

– 38 (Tex. Crim. App. 2002) ). “ [I]n cases of grave doubt as to harmlessness the [appellant] must win.” Id. Ne ither the State nor the appellant
has the burden to show harm. Rather, it is our duty as an appellate court, after an appropriate review, to assess harm. Johnson v. State , 43 S.W.3d 1, 5 (Tex. Crim. App. 2001). Appellant argues that
, because the jury had to decide whether to believe Appellant or S.C. , “the mere suggestion that Appellant disposed of possibly incriminating evidence that might have contained blood could have tipped the

sc ales against Appellant.” We agree that the jury was the judge of the credibility
of the witnesses and of the weight t o be given to their testimony. But here , the jury had many opportunities to exercise that judgment as to S.C. and Appellant and to
many other witnesses throughout the trial of this case. We will use the phrase that many of the cases use and note that th is is not the typical “ he said, she said” case of sexual assault when the only witnesses are the two parties involved. For example, the court in Hammer wrote: “Sexual 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, sc ientific, or other corroborative evidence.”
Hammer v. State , 296 S.W.3d 555, 561

– 62 (Tex. Crim. App. 2009). Referring to
Hammer , the court in Sandoval said, “The only direct evidence of the sexual23 assault w a s [the alleged victim’s] account in her testimony. The State presented no corroborative evidence.” Sandoval v. State
, 409 S.W.3d 259, 290 (Tex. App.

— Austin 2013, no pet.). Although the jury did hear two basically diametrically opposed versions of the event from Appellant and from S.C. , those versions were not unaided by physical, sc ientific, or other corroborative evidence. Here, there were more than twenty witnesses who testified and over eighty exhibits that were admitted for the jury’s consideration. In this opinion, w e have reviewed in some detail the evidence that the jury heard and do not find it necess ary to repeat that evidence here. The inadmissible testimony was but a small part “of a large amount of evidence presented that the jury could have considered in assessing” the parties’ credibility. Schutz v. State , 63 S.W.3d 442, 446 (Tex. Crim. App. 20 01). In our review, “t he focus on credibility “ is significant, but it is not conclusive.” Id

. When we consider all the evidence that was admitted at trial, the nature of the evidence supporting the verdict, the character of the alleged error, how the ev idence might be considered in
connection with other evidence in the case
, the parties ’ theories of the case, closing arguments, voir dire, and the extent to which the State emphasized the error , we cannot say that the error had a substantial or injurious effect or influence on the jury’s verdict

. 2 We do not have “grave doubt” about whether the result of this trial was free from any substantial influence resulting from this one error. We hold that the erroneous admission of the hearsay evidence about the blanket was harmless. Appellant’s second issue on appeal is overruled.

2 We do not be lieve that we may consider in our analysis eit her affidavits or testimony of a juror offered at the hearing on the motion for new trial in this regard as violating Rule 606(b), discussed more fully later in this opinion. T EX

. R. E VID

. 606(b). Even if we could, a different result would not be demanded because of the conflicting nature of the proffered testimony at the hearing on the motion for new trial.24 Appellant complains in his third issue that the trial court erred when it denied Appellant’s motion for new trial based on jury misc onduct. He alleges that a juror slept through criti cal portions of the trial. Appellant argues that, because he had a constitutional right to a fair and impartial trial and because a sleeping juror deprived him of that right, he is entitled to a new trial under Rule 21.3(g). T EX

. R.
A PP

. P. 21.3(g).
We review the denial of a motion for new trial for an abuse of disc retion.
Holden v. State , 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). The determination
of historical fact s and assessment of witness credibility are within the trial court’s
disc retion. Hughes v. State , 24 S.W.3d 833, 842 (Tex. Crim. App. 2000) (citing
Sneed v. State , 670 S.W.2d 262, 266 (Tex. Crim. App. 1984)). We consider the evidence in the light most favorable to the trial court’s ruling. Webb v. State , 232 S.W.3d 109, 112 (Tex. Cri m. App. 2007). Rather than substituting our judgment for that of the factfinder, we must determine whether the trial court’s ruling was arbitrary or unreasonable. Holden , 201 S.W.3d at 763. We must uphold the trial court’s ruling if it is within the zon e of reasonable disagreement. Webb , 232
S.W.3d at 112. A trial court abuses its dis retion when it denies a motion for new trial only when no reasonable view of the record could support the trial court’s ruling. Holden , 201 S.W.3d at 763. The party who moves for a new trial has the burden of proving juror misc onduct. Hughes
, 24 S.W.3d at 842. A mistrial is appropriate in “extreme circumstances” for incurable and highly prejudicial errors. Ocon v. State , 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). If sleep by a juror constitutes such “ misc onduct that the defendant did not receive a fair and impartial trial,” the defendant must be granted a new trial.
T EX

. R. A PP

. P. 21.3 (g). A new trial “is appropriate only if the defendant was deprived of his Fifth Amendment due process rights or his Sixth Amendment right to an impartial jury.” United States v. Freitag , 230 F.3d 1019, 1023 (7th Cir.25 2000). Whether a trial court should grant a new trial because of a sleeping juror depends on whether the juror “miss ed large portions of the trial or [whether] the portions mis sed were particularly critical. ” Freitag , 230 F.3d at 1023. At the hearing on the motion for new trial, Appellant called several witnesses. Alternate Juror Janet Barba explained that she sat next to the sleeping juror throughout the trial. Barba tes tified that she observed the juror with her eyes shut, that her head was nodding, and that she was breathing li ke a person who was asleep. Barba said that the juror “would snore intermittently and then it woul d
wake her and she would . . . straighten back up and then she would doze off again.” When asked whether she remembered “any sp ecific key points that [the juror ] was asleep during,” Barba said that the juror was asleep “at various times” during the victim’s testimony, and she later told the court that “to be asleep during any portion of [the testimony] regardless of who is testify ing wo uld have been wrong ” (emphasis added). Barba agreed that the juror slept through “a larg e portion” of the trial, but she was never asked to give any other examples of what the juror
missed. On cross

- examination, Barba admitted that she was not pres ent during deliberations, that she did not know how much of the evidence the juror comprehended or what role the juror played in deliberations, and that she never
disc ussed with the juror what the juror heard and did not hear. Nancy Harrist, a legal assistant to Appellant’s trial counsel, testified that
, when she saw the j uror during trial, the juror was slumped in her chair with her chin down and her eyes closed. Harrist agreed with Appellant’s counsel that the juror appeared to be asleep for a larg e portion of the trial, but Harrist never explained how often she observed the juror sleeping, how long the juror sle pt , or what the critical parts were that the juror missed. Harrist also remembered that the trial ended early one day so that the juror co uld go to a doctor’s appointment and agreed that a medical condition could explain her postur e during trial. Harrist also26 admitted that the defense never talked to the juror after trial to determ ine how much of the evidence the juror comprehended, nor did she talk to the other jurors
to determine how much the juror contributed to the deliberation p rocess. Appellant also called the bailiff and the court coordinator as witnesses

. The court coordinator, Melissa Butler, testified that she was in the courtroom sporadically and saw that the juror’s “head was down, [and] her eyes we re closed.”
Butler had the opportunity to observe the juror only a couple of times each day; the juror did not appear to be asleep every time. Butler also testified that she
remembered the juror going to the doctor one afternoo n during the trial. The bailiff, Calvin Gray, testified that the juror “appeared to doze off during the t rial
several different times.” But Gray admitted that he did no t know and merely
assumed that she was sleepi ng because her eyes were shut. Gray noticed that the juror app eared to be sleeping on three or four occasions for one to two and one

- half
minutes at a time. Gray and Butler both testified that the juror was ne ver left sitting in the jury bo x when the jury was dismissed. Although it appears from our review of the record that the juror was “nodding off” and “dozing off” during trial, it is not clear how much of the
evidence she failed to hear because she was slee ping. Butler only observed the juror a couple of time s each day, and Gray only observed her sleeping three or four
times over the course of the trial. Although Barba testified that the juror missed a large portion of the trial
, Barba did not explain what she believed was a large portion or give an amount of time that the juror was asleep, and as an alternate juror, she was not present during deliberations to know the ex tent of the juror’s participation. We conclude that the record does not establish that the juror missed large portions of the trial. See Menard v. State , 193 S.W.3d 55, 60 (Tex. App.

— Houston [1st Dist.] 2006, pet. ref’d ) (concluding that evidence that a juror sporadically closed his eyes for short periods does not show that the juror missed27 large portions of the trial). Moreover, Barba informed the trial court and the bailiff
that the juror was sleeping, so the trial co urt was in a position to monitor and
observe her attentiveness. See Dickerson v. State , 87 S.W.3d 632, 641 (Tex. App.

— San Antonio 2002, no pet.) (“The trial court is in the best position to observe the demeanor of the jurors.”). We cannot conclude that t he trial court’s ruling was outside the zone of reasonable disagreement ; consequently, we hold that
the trial court did not abuse its disc retion when it denied Appellant’s motion for
new trial . Appellant’s third issue is overruled.
In his fourth issue on appeal, Appellant asserts that the trial court erroneously denied his motion for new trial based on a second claim of juror
misc onduct. He alleges that the verdict was not a fair expression of the jurors’ opinion because they made “an agreement to exchan ge a guilty vote for the promis e of probation on punishment.” Further, Appellant claims that an Allen 3 charge given to the jury by the trial court caused a hold

- out juror to change his mind from “not guilty” to “guilty. Appellant presented an affidavit that indicate d
that the juror agreed to change his vote to guilty after the other jurors agreed that Appellant would be granted probation and not be s ent to prison. At the hearing on the motion for new trial, Appellant offered a recording of his lawyer’s phone
conversation with the hold

- out juror as well as the testimony of the hold

- out juror.
The trial court was of the opinion that Rule 606(b) prohibited that testimony.
T EX

. R. E VID

. 606( b ). We agree. We employ a two

- part test to determine whether jury misc onduct has
occurred . First, we must determine whether there was misc onduct, and second, we
then asse s s harm. Sc halk v. State , 767 S.W.2d 441, 454 (Tex. App.

— Dallas 1988), aff ’ d , 823 S.W.2d 633 (Tex. Crim. App. 1991).

3 Allen v. United States , 164 U.S. 492 (1896).28 Allegations of jury misc onduct that are predicated upon the jury’s consideration of punishment during guilt/innocence deliberations are often improper attempts to “impeach” the verdict by considering the thought processes of the jurors. Id. Nonetheless, jurors should consider o nly the evidence adduced at
trial so that a fair and impartial verdict can be reached according to the law free from improper influence from irrelevant and prejudicial matters not relating to

gu ilt, innocence, or punishment. Id. Thus, we must first determi ne whether Appellant was attempting to improperly impeach the jury’s verdict or was properly demonstrating jury misc onduct. Rule 606(b), entitled “Inquiry Into Validity of Verdict or Indictment,” delineates the following circumstances under which jurors can testify as witnesses: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment. Nor may a juror’s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to

serve.
T EX

. R. E VID

. 606(b). Moreover, the Rules of Appellat e P rocedure mandate that a defendant must be granted a new trial when the verdict has been decided by lot or in a manner other than a fair expression of the jurors’ opinion. T EX

. R.
A PP

. P. 21.3(c). Regardless of Rule 21.3(c), Rule 606(b) limits the manner of proof to that
other than testimony o f a juror. T EX

. R. E VID

. 606(b); Hicks v. State , 15 S.W.3d 626, 630 (Tex. App.

— Houston [14 th Dist.] 2000, pet

. ref’d) ; Hines v. State , 3 S.W.3d 618, 621

– 22 (Tex. App.

— Texarkana 1999 , pet

. ref’d)

. The rule contains29 two exceptions: outside influence and juror qualifi cation

. T EX

. R. E VID

. 606(b). Specifically, an “ Allen charge” is not an outside influence for purposes of Rule 606(b). Franks v. State , 90 S.W.3d 771, 801

– 02 (Tex. App.

— Fort Worth 200 2 ) , pet. ref’d, untimely filed
, 97 S.W.3d 584 ( Tex. Crim. App. 2003 ). Neither of those exceptions is applicable to Appellant’s other arguments here. Appellant urges this c ourt to also consider the constitutionality of
Rule 606 (b) as applied to this case. That issue has been decided adversely to Appell ant ’s argument

. See Glover v. State , 110 S.W.3d 549 ( Tex. App.

— Waco
2003 , pet

. ref’d )

. 4 We have considered all facets of Appellant’s fourth issue on appeal
, and it is
overruled. The judgment of the trial court is affirmed.

JIM R. WRIGHT
CHIEF JUSTICE May 22, 2014
Do not p ublish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

4 This case has been transferred to us from the Tenth Court of Appeals in Waco pursuant to an order of the Texas Supreme Court under the authority of Section 73.001 of the Texas Government Code. T EX

. G OV ’ T C ODE A NN

. § 73.001 ( West 2013). In accordance with Rule 41.3 of the Texas Rules of Appellat e Procedure, we are required to follow the precedent of the Waco court. T EX

. R. A PP

. P. 41.3.