### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

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ON REMAND

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NO. 03-0 3 -00 030 -CR

Da vid Wa yne Ca se y, Jr . , A ppe lla nt

v . The State of Texas, App ellee

FR OM T HE C R IM IN A L D IS T R IC T C OU R T OF D A L L A S C OU N T Y NO. F -00 3697 8-S H , HO NORAB LE JANICE L. WARDER , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N Appellant Da

vid Way ne Casey , J r., wa s t ri ed for sex ual assault ag g ravated by the administration of gamma hy droxy buty rate (GHB ). See Tex. Pena l Code Ann. § 22.021(a) (1)( A)(i) , (2)( A) (v i ) (W es t S upp. 2006). The jur y convicted him of the lesser inc luded offe nse of se x ual assault, for w hich i t as s essed a twenty -y ear prison term. Se e id . § 22.011(a) (1)( A). On or igina l submissi on, this Court found that the evidence was leg all y and factually sufficie nt to sustain the jury ’s ver dict, but we re verse d the j udg ment of convic tion after c oncluding that the trial cour t erre d by admitting ce rtain photogr aphs in evidenc e and c ommenting on the w eig ht of the evide nce in the jury char g e. Cas e

yv . S tat e , 160 S.W .3d 218, 230 (Tex. App.—Austin 2005) ( Casey I ). The c ourtThe o t h er man was Scott Cannon, who wa s jointl y tried with appe llant. The jury found 1 C a n n o n n o tg u i l t y. 2 of cr iminal a

ppeals g rante d the State’s petition f or discre tionary

revie w, re verse d our judg ment, and
rema nded the cause to us for consider ation of appe llant’s rema ining points of er ror. Cas e yv . S tat e , 215 S.W .3d 870, 887 (Tex. Crim. App. 2007) ( Casey II ). I n the points of err or not previously discussed, appellant contends that the tria l court abused its discre tion by

excluding evide nce of

fered to impeach the c omplaining witness, by excluding evide nce a

n d limit ing de fense questioning pe rtinent to his defensive the ory , and by
re fu sin g to p e rm it h is m oth e r t o te sti fy a t the punis hme nt sta g e be c a us e sh e he a rd

c los inga rgume nts
a t th e g uil t sta g e . He a lso c on te nd s tha t his tri a l couns e l re nd e re d ine ff e c tiv e a ssi sta

nc e . We wi ll
overr ule these c ontentions and aff irm the conviction.
Backg ro und The c omplainant, K.T., wa s employ ed as a “shot g irl” at a Dallas topless club. She
was a cquainted w ith appellan t , h av i n g b ee n introduced to him by her boy friend. O n the nig ht of Ap ri l 24 , 2 00 0, K. T. wa s n ot w or kin g , b ut s he we nt t o the c lub wh e re sh e wa s join e d b y a pp e lla nt. Af te r a bo ut a n ho ur , sh e a c c e pte d a

pp e lla nt’ s inv itatio n to g o to his re sid e nc e a nd watc h v ide os wi th him and some of his frie nds. K.T. testified that at appellant’s house, she was surreptitiously drug g ed and, while unconscious, sexually assaulted by

appellant a

nd another

man. A bottle containing GHB 1 and photogr aphs of K.T. unconscious and naked wer e found in a ppellant’s residenc e duringa police
s e a r c h t h e f

o l l o w i n g d a y.3 The de fense offe re d ev i d ence that K.T. broug ht the GHB with her to appe llant’s
re sid e nc e a nd

ha d c on su me d it

vo lun tari ly . T he de fe ns e a lso asse rt e d th a t K .T . e ng a g e d in
consensua l sex ual interc ourse with appe llant and ac cused him of sex ual assault in order to hide the truth from her

boy friend. A complete summar

y of the ev i d en ce can be found in the pre vious opinions. See Casey II , 215 S.W. 3d

a t 87 5- 78 ; Casey I

, 160 S.W .3d at 221-23. In this opini on, we will discuss the evidenc e in g reater de tail only as nec essar

y to addre ss the points of error
. Cro ss- Exa minatio n of

Compla ina nt I n p oin t of

e rr or six, a pp e lla nt c on te nd s th a t th e tr ial c ourt imp ro pe rl y

lim ite d h is
cross-e x amination of K.T. by ref using to a l l o w h i m t o question her r eg ardingher history of employ ment at topless clubs and he r familiarity with drug u s e at those clubs. In an off er of proof outside the jury ’s pre sence , K.T. said that she ha d worke d as a da ncer at a number of topless c lubs in the Dallas a

rea . Asked if it is common for topless danc ers to use dr ug s or alcohol, she answe red, “The re’ s alway s a person that do[es] , y es, i t’s not the m ajority , no.” K.T. de nied eve r using GHB
or seeing another woman voluntarily take GHB , but she said that she had se en women g et sick af ter
me n “ pu t st

uf f in the ir dr ink s a t the ta

ble .” Th e tr ia l c ourt ru le d that the de fe ns e c ou ld a sk K. T. if she broug ht the GHB to appellant’s house, but could not “g o further into that line of questioning.” Appellant ar g ues t hat t he dis allowed testim ony “wa s rele vant t o the defensive theor y that K.T. voluntarily

inge sted GHB , knowing it would cause unconsciousness, a nd consente d to any sexual acts with [ appellant].” He urg es that the excluded evidenc e “tende d to prove K.T. br oug ht GHB to Casey ’s home and, c onsequently , consente d to the sex, a contested fa ct.”4 We find no reve rsible error in the trial c ourt’s ruling . The fa ct of K.T.’ s employ ment at a topless club wa s known to the jury . Fa r fr om supporting appellant’s defensive theor y , the offe r of proof ref lects that K.T. de nied using GHB , denied that it was c ommonly used b y dance rs at topless clubs, and denie d ever seeinga woman voluntar ily take it. L ater , in answer

to a question by de fe ns e c ouns e l in the jur

y ’s pr e se nc e , K .T . te sti fi e d th a t w ome n g ive n G HB “ us ua lly e ith e r p a ss o ut, they don’t reme mber what happene d, or t heir body reje cts it, or i f y ou don’t mix it—if y ou g ive them too much they

just die.” The challeng ed ruling has not bee n shown to have unr easona bly hindere d appellant’ s ability to present his def

ense. In fac t, by

convicting appellant of

the lesser included off

ense of sexual assault, the jury

nece ssarily

found that appellant did not administer GHB t o K.T., or at l east that the State failed to prove that he did. Any err or in the trial court’ s ruling w as har mless. See Tex. R. App. P. 44.2(b). Point of error six is overrule d.
Testim ony Regarding C

om plainan t’s Motive I n point of err or four , appellant c ontends that the trial cour t er re d b y excluding evidenc e reg arding the re lationship between K .T. and he r boy friend, Christopher Nunn. Nunn date d K.T. off and on duringthe two y ear s prec eding the alleg ed offe nse. After awakening at appe llant’s residenc e on the morningof April 25, K.T. drove to N unn’s apar tment a nd told him that appe llant ha d s e xua lly

a ssa ult e d h e r. Nunn

too k K .T . to the ho sp ita l. Nunn ha d in tr od

uced K.T
. to a

pp e lla nt, bu t he la te r a dv ise d h e r t o avo id h im. Although K .T. and Nunn w ere not dating in April 2000, K.T. testified that she a nd Nunn had onc e5

d i s c u s s e d m a r r i a g e a n d t h a t s h e s t i l l l o v e d h i m . S h e a c kn o w l e d g e d

t h a tN u n n “ w o u l dn ’ tb e h a p p y” if he le a rn e d th a t sh e ha d s e xua l in te rc ours e wi th a pp e lla nt. Appellant conte nds that the trial court abused its di scre tion by ref using to pe rmit the defe nse to question Nunn about incidents that occur red in 2001, about a y ear

afte r the a lleg ed sexual assault. Se e Bu rd

e n v . S tat e , 55 S.W.3 d 608 , 6 15 (T e x. Cr im. Ap p. 20 01 ) ( statin g tha t de c isi on to exclude evidenc e is revie wed for abuse of discre tion). I n an off er of proof, Nunn te stified that on tw o o c c a sio ns , K .T . c a me to h is r e sid e nc e a nd wou ld n ot l e a ve , f

or c inghim

to c a ll the po lic e to have her removed. Appe llant urg ed that this testimony showed that K.T. w as “te naciously holding on to this man” and was admissible to show her motive to falsely acc use appe llant. The cour t found that the testimony

was irr eleva

nt beca use the incide nts refe rre d to ha ppened one y ear

afte r the a lleg ed of fe ns e a nd a ft e r K .T . h a d ma de he r a c c us a tio ns a g a ins t a pp e lla nt. The trial c ourt could re asonably conclud e that because the incidents at Nunn’ s residenc e took place long a fter K .T. ac cused a p p ell ant of sexually

assaulting her, the y

had no rele vance to her state of mind or motive to falsel y acc use him. I n any

event, more probative evidenc e of K.T.’s allege d motive was adduced through her own te stimony that she still loved Nunn
a n d t h a tN u n n w o u l d

n o tb e h a

p p y t o kn o w t h a ts h e h a d

s e x u a l i n t e r c o u r s e w i t h a p p e l l a n t
. In addition, Alana Ge blein, appellant’ s former g irlfriend who also knew K .T. and Nunn, te stified that K.T. wa s obsessed with Nunn and c alled him on the telephone “over and over and over ag ain.” Ac c or din g to G e ble in, Nunn “ wa nte d h e r t o b e ob se ssi ve a bo ut h im. He did

thi ng s in te nti on a lly

to pr ov ok e he r b e havio r. ” She a lso sa id that Nun n wa s ver y je a lou s of a

pp e lla nt a nd tha t N un n “ wo uld
never talk to [ K.T.] ag ain if he f ound out that she had a

ny thing to do with [appellant].”In Casey I we held that these photogr aphs we r e er r oneously admitted. 160 S
. W. 3d at 226- 2 27
. T he c our t of

c r imi na l a

pp e a ls d isa gr e e d, fi nd ing the m to be “ str on g e vid e nc e that K
. T
. did not consent on the night in question. ” Casey II , 215 S
. W. 3d at 882. 6 I n li g ht o f t

he ot her evi den c e te nd ingto s ho w K .T .’ s mo tiv e to f a lse ly a c c us e appellant of sexual a ssault, w e conclude that any err or in the exclusion of the challeng ed evide nce did not substantially

aff ect a ppellant’s def

ense. See Tex. R. App. P . 44.2. P oint of err or four is over

ruled.
Te

sti mony R e ga rd ing Pho tog ra phs I n point of err or five, a

ppellant contends that the trial cour t abused its discretion by limit ing de fense questioning of Geblein r eg ardingphotogr aphs introduce d as State’s e x hibits 71 t h ro u gh 7 6 an d

7 8
. T h e p h o t o grap h s we re d ev el o p edfr o m fi l m fo u n d i n a ca m er a s ei z edd u ri n g a
sear ch of a

ppellant’s re sidence . Ex hibits 74, 75, and 76 show an unidentified woman lying na ked
on a couc h or bed. She a

ppear s to be aslee p or unconscious. Exhibi t 71 is a close-up of the woman’ s g e n i t a l s . Ine x h i b i t7 2 , a n u n i d e n t i f i e d m a n i s i n s e rt i n g a l o n g o b j e c ti n t o t h e w o m a n ’ s v a g i n a . In exhibi t 73, the same man is pushing a drink c an into the woman’ s vag ina. I n exhibi t 78, a diffe rent unidentified man is per forming cunnilingus on the woman. 2

Ge ble in t e sti fi e d that sh e had wo rk e d a s a c oc kta il w a itr e ss at tw o to ple ss c lub s in Dallas. She was shown the photogr aphs and asked if she had ever seen photogr aphs like them. She
sa id t hat sh e ha d. Ge ble in t e sti fi e d “ that’ s h owpe op le [wh o w or ke d at or fr e qu e nte d to ple ss c lub s] would party . People would take pic tures.” G eblein said t h at i t wo uld not surprise her that the woman picture d had conse nted t o t h e activity shown. Geble in also testified that GHB was7

c omm on ly

us e d a s a re c re a tio na l dr

uga t to ple ss c lub s and

that a ft e r u sin g GH B the wo me n w ou ld of te n e ng a g e in c on du c t of

the so rt sh ow n in the ph oto g ra

ph s. W h en d efense counse l asked Ge blein if she had e ver be en “in those kinds of situations,” the St at e o b

j ecte d to the rele vance of the que stion. The court re moved the jury and sustained the objec tion
. T h e co urt admonished counse l, “We are not goingto have [Geblein] testify ing a

bout her personal sex ual ex perie nces, doesn’t have any thing to do with this trial.” The court a lso ruled, “I ’m not g oing to let her testify to the nature of t hese photogra phs other than the re’ s a g irl in them that appea

rs to be passe d out.” Appellant urg es that Ge blein’s testimony “wa s cruc ial to depre ciate the impact of the vivid pictures and to off

er a n alternative explanation than that proffe red by the S tate.” He a rg ues that having introduced the p h o t o gra p hs over his objec tion, “the trial cour t was re quired to per

mit the defe nse t o int

r o d u c e e v id e n c e r e g a r d in g it s th e o r y o f th e c a s e . ” A p p e ll a n t d o e s n o t, h o w e v e r, identify the testimony

that he cla ims was err oneously excluded by

the cour t. Geblein wa s permitted to te s t i fy i n support of appe llant’s defe nsive theory that drug use and se x ual conduc t of the sort shown in the photog raphs we re c ommon among pe rsons employ ed by toples s clubs, and that the woman in the photog raphs may have consente d to the acts shown. Appellant did not make an off er of proof reg ardingother que stions h e would have aske d Geblein or her a nswers. See Te x. R. Evid. 103(a) (2). Point of err or five pr esents nothing for r eview a nd is overrule d. Application of Rule 614 and In eff ective Assist ance I n point of error seven, appellant contends that his trial counse l rende red ine ffe ctive assistance beca

use he: (1) failed to challeng e a biased jury member, a

nd (2) told appe llant’s mother8

that she could sit in the courtroom during jury arguments at the conclusion of the guilt st ag e of tria l in violation of the witness exclusion rule. See Tex. R. Evi d. 614. I n point of err or eig ht, appellant contends that the tria l court abuse d its discretion by ref using to pe rmit his mot her to testify at the punishment stage . These a lleg ations were raised in a motion fo r n ew t ri al fil ed by appellant’ s
co u n s el o n ap p ea l
. T h e m o t i o n wa s o v erru l edb y t h e t ri al co u rt fo l l o wi n g a h ea ri n g.
Biased Juror The testimony

adduce d at the new

trial hea ring related t o appellant’ s contention that counsel fa iled to challeng e a biased juror. Dora Rodrigue z Casey , who marr ied appe llant following his conviction, testified that she sat outside the co u rt ro o m d uring jury selec tion. She said she overhe ard a

man state duringa telephone conversation, “This is a bullshit case. I don’t know why
we a re try ing it. These guy s should be in prison any way s.” After jury

selec tion was completed, she saw that this man had be en chose n to se rv e. S he testified that whe n she told appellant’s attorney what she ha d hear d the man say , he re plied, “I don’t think we should take it to the J udg e bec ause w e
are g oing to piss her off. And what she’s g oing to e nd up doing, she ’s g oing to let him sit on the J ury any way s, so what’s the point.”

The juror in question was identified as Jeffre y Kaiser , who serve d as jury fore man. Kaiser testified at the hearing and acknowledg ed making telephone calls during br eaks in the jury
s e l e c t i o n p r o c e s s . H e d e n i e d , h o w e v e r , m a k i n g t h e s t a t e m e n t s a t t r i b u t e d t o h i m b y D o r a

C a s e y. Kaiser testified that he did not consider appellant’ s trial to be a “bullshit c ase” and was not o f t he opinion before trial that the defendants should g o to prison. Kaiser testified that he wa ited until he hear d all of the e vidence befor e making up his mind about the case.The repor ter’s rec ord does not r efle ct that Perkins was called as a witness at the punishment 3 stag e. While questioning an o t h er witness, however , defe nse counse l refe rre d to “member s of [ap pe lla nt’ s] f a mil y ” wh o “ have be e n sit tin g in the c ourt ro om a nd so the y c a n’ t te sti fy .” Th e Sta te does not deny

that the trial cour

t excluded Perkins’s testimony
.

9 When review ing a

tri al co u rt ’s denial of a

motion for new tria l, we must view the evidenc e in the light most fa vorable to the ruling and pre sume that all rea sonable fa ct finding s were made a g ainst the losing pa rty
. Cha rle

s v . S tat e , 146 S.W .3d 204, 208 (Tex. Crim. App. 2004). A trial court abuses its discretion in denying a m otion for new trial only when no r easona

ble view of the re cord c ould support the ruling
. Id . I n this case, the tr ial co u rt co u l d re asonably resolve the
c on fl i c t i n g t e s t i m o n y

b y b e l i e v i n g K a i s e r ’ s t e s t i m o n y i n w h i c h h e d e n i e d

m a k i n g t h e s t a te me nts attributed to him by

Dora Casey
. We must defe r t o the t rial court’s deter mination as t o the re lative
cre dibilit y

of the witnesse s. We overrule appellant’ s seventh point of err or insofar as it asserts that counsel pe rmitted a biased jur or to serve
. Witn ess Exclusion An af fidavit from a

ppellant’s mother, Ma

rsha Per kins, w as attache d to the motion for new tria l and introduce d in e vidence at the hear ing. I n the af fidavit, Perkins stated, “I

understood that, when the testimony was c losed, that all parties w ere rele ased f rom the orde r of the c ourt that any one who would be a witness in the ca se could not be in the c ourtroom an d I , al o n g with the complainant and sev er al other pe rsons who we re w itnesses sat in the cour troom to hear the final argument of counse l.” Her aff idavit continues, “When I was called as a witness in the punishment pa r t o f th e tr ia l, I w a s to ld b y th e ju d g e th a t I c o u ld n o t te s ti f y b e c a u s e I h a d been pr esent in the courtroom dur ing the g uilt- innocenc e stag e of the trial.” Neither Perkins nor appe llant’s trial 310

counsel testified at the hear ing. Se e Ho lde n v . S tat e , 201 S.W .3d 761, 763 (Tex. Crim. App. 2006) (ho ld in g t ria l c ourt

may de c ide mot ion

fo r n e w tri a l ba se d o n a ff ida vit s a dmi tte d in
ev i d en ce wi t h o u th ea ri n g o ra l t es t i m o n y ) ( qu o t i n g Sc ag

gs v . S tat e , 18 S.W .3d 277, 281 (Tex. App.—Austin 2000, pet. ref ’d))
. Rule 614 pr ovides for th e exclusion of witnesses “ so that they ca nnot hear the testimony of other witnesses. ” T ex. R. E vid. 614. T he r ule is designed to pr event witnesse s fr om a lter ing the ir testimony, consciously or not, based on other witnes s es ’ t estimony. We bb v . Sta te , 766 S
. W. 2d 236, 239 (T ex. C r im. App. 1989). T he r ule was invoke d in this case, but neither par ty cites author ity holding that the r ule applies to a pote ntial punishment witness who he a r s g uil t st a ge jur y a

r gu me nt. W e wi ll a ssume , wi tho ut d e c idi ng , tha t it do e s. Pe rk ins ’s a ff

ida vit did no t st a te that sh e wa s to ld by a pp e lla nt’ s c ouns e l th a t sh e c ou ld return to the c ourtroom t o listen to the arg uments. I nstead, she mere ly stated that she “ understood” that she could do so. Be cause there is no evidenc e that appellant’ s trial counsel tol d Perkins that she could listen to jury

arguments at th e guilt st ag e or that counsel knewthat she had e ntere d the courtroom, we overr

ule appe llant’s contention that counsel was inef fec tive in this reg ard. Point of
err or seve n is overrule d.

Whe n d e c idi ngwh e the r t o d isq ua lif y a de fense wi tne ss f

or vio la tin g the wi tne ss sequestration rule, a trial c ourt must b al ance the intere sts of the parties, inc luding the de fenda nt’s constitutional right to ca ll witnesses in his own behalf, consider alternative sanctions, and we igh the benef it and detriment ar ising fr om a disqualification in light of the nature and we ight of the testimony to be offe red. Ro uti e r v . S tat e , 1 1 2 S .W.3d 554, 590 (Tex. C rim. App. 2003) (c iting11

W e bb v . S tat e , 766 S.W .2d 236, 244 (Tex. Crim. App. 1989)). When r eviewing a tr i al co u rt ’s decision t o exclude a defense witness, an appellate court must decide : (1) if the re w ere particula r circ umstances, other

than the mer e fa ct of the violation , wh i ch tend to show that the defenda nt or his counsel conse nted, proc ured, or o t h erwise had knowledg e of the witness’s pre sence in the courtroom knowingthe content of the witness’s testimony ; and (2) if no particula

r cir cums tance s exis ted to justify

disqualification of the w itness, if the excluded testimony was c rucia l to the def

ense. W ebb , 766 S.W .2d at 245.

There is no evidence that appellant or his tr i al co u n s el consented to, procur ed, or oth e rw ise ha d kn ow le dg e of Pe rk ins ’s pr e se nc e in the c ourt ro om duri ngjur

y a rgume nt at th e g uil t stag e. Insofar as t he record refle cts, the t rial court disqualified P erkins based solely on the fa ct that the rule w as violated. The ref ore, we m ust decide whether the ex cluded testim ony was c rucia l to the defe nse. B eca

use Perkins was preve nted from testify ing at the punishment stag e, we must consider the ef fec t her testimony

might have had on the jury ’s p u n i s h m en t decision, including appellant’ s reque st for probation.

I n her a ffidavit, Perkins said that she w ould have testified that: (1) appe llant ga ve life-saving bone marrow

to his sis ter; (2) she had seen “a rema rkable chang e” in appellant’s life since he mov e d ou t of the ho us e wh e re the a lle g e d of fe ns e too k p la c e ; ( 3) a

pp e lla nt h a d s top pe d g oin g to
c lub s and ha d be g un to se ttl e do wn ; (4) a pp e lla nt’ s life ha d pre vio us ly

“ re vo lve d a

ro un d s ome ma le friends w hich I

believe ha d provided a

very bad influenc e on him,” a n d t h at his lifesty le “made a dramatic chang e af

ter he beca

me eng ag ed and be g an to live a life that revolve d around home and family ”; (5) she believed that appellant would not be a dang er to a

ny one if g rante d probation and12

wo uld be a po sit ive inf

lue nc e on oth e rs , in c lud ingne w f

ri e nd s h e ha d ma de ; and (6 ) she wo uld a sk the jur y to g ra nt ap pe lla nt pr ob a tio n “so that he c ou ld c on tin ue the lif e he ha d d e ve lop e d in

the pa st y ear and a ha lf, rathe r t han punis h him for something t hat was alleg ed to have occur red a lmost t wo y ear s prior to the date of the trial.”

D e c id in g w h a t p u n is h me n t to a s s e s s is a n o r mati v e p r o c e s s , n o t in tr in s ic ally fac t bound. Su nb ur

yv . S tate , 8 8 S
. W
. 3 d

2 2 9 , 2 3 3 (T ex . C ri m . Ap p . 2 0 0 2 ) ( qu o t i n g Mu rp hy v . S tat e , 777 S.W .2d 44, 63 (Tex. Crim. App. 1989) (pl urality op. on reh’ g )). Othe r than a ppellant’s
e lig ibi li t y f

o r p r o b a t i o n , a f

a c t t h a t w a s n o t i n d i s p u t e , t h e j u r y i n t h i s c a s e w a s n o t r e qu i r e d to deter mine the exis tence of any discrete fac ts at the punishment stag e. Although Per kins’s testimony might have been he lpful to the jury in determining the appr opriate punishment, we do not believe that it was cruc ial to that determination. Appe llant’s then-fia ncee , Dora

Rodrigue z, testi fied in a
manner substantially

simil ar to Perkins’s proff ere d testimony
. Rodrigue z testified that appellant’ s life had c hang ed since the eve nts in question, that he had stopped g oing to topless bars, and that he had “done a lot for our

house. He ’s done a

lot for me, done a lot for my mom. And he’s a g reat asset to u s . ” R o dr i g u e z t e s t i f

i e d t o a p p e l l a n t ’ s h a v i n g g i v e n t h e b o n e m a r r o w t o h i s s i s t e r . S h e a lso d es cr i b edh o w ap p el l an t h adh el p edh er an d h er m o t h er wi t h h er fa t h er , wh o h adre ce n t l y

l o s ta l eg. She said, “[Appellant] is t he one that helps me take him to the hospital. He g oes with him, carr ies my dad, puts him in his w heelc hair, helps him to the car so I can g o to the hospital.” Rodrig uez’s ha lf -b ro the r, a

Da lla s A re a

Ra pid Tr a ns it pol ic e of

fi c e r, te sti fi e d th a t a

pp e lla nt h a d b e e n li vin g wi th his sist er a

nd their mother f

or two y ear s, helped pay the bills and maintain the house, a nd had helpe d D o r a w it h h e r f a th e r . H e w a s o f th e o p in io n th a t a p p e ll a n t w a s a g o o d c a n d id a te f o r probation,13

a l t h o u g h h e a d m i t t e d t h a t h e h a d o n l y r e c e n t l y l e a r n e d o f a p p e l l a n t ’ s c r i m i n a l d i f

f i c u l t i e s . F i n a l l y, appellant pe rsonally

testified to the re cent c hang es in his life. Appellant said that he was no long er involved with topless dance rs and drinking
. “And I don’t hardly hang out with my friends a ny more. Istay with my family and my g irlfriend a

nd that’s basica lly

about it.” Even if the tr ial court e rre d by ref using to pe rmit Perkins to testify , we a re satisfied bey ond a re asonable doubt that the error did not contribute to the punishment asse ssed. See Te x. R. Ap p. P. 4 4. 2( a ); W

ebb , 766 S.W .2d at 246 (a pply ing test for constitut ional err or). The State proved that appellant ha d four pr evious convictions, none of which d isqualified him for probation: (1) a 199 1 m i sdemea

nor theft f

or which he rec eived de fer red a djudication; (2) a 1992 misdeme anor attempted cr iminal trespass for w hich he rec eived defer red adjudication; (3) a 1994 felony theft for which he r ece ived def

err ed adjudic at i o n and which w as subseque ntly dismiss ed; and ( 4) a 1999 mis de me a no r d

ri vin g wh ile int oxic a te d f or wh ic h he re c e ive d a p ro bate d s e nte nc e . T he Sta te a lso offe red the testimony

of A.Y., w ho once w orked a s a topless dance r in the same c lub at which K.T. had bee n empl o y ed. A.Y. te stified that in October 2000, she wa s with a g roup of pe ople at
a pp e lla nt’ s h ou se wh e n s he pa sse d o ut af te r be ing g ive n a dri nk
. She wo ke up the ne xt mor nin g in appellant’ s housemate’ s bed, naked. She had bee n sexually assaulted. The State offe red e vidence that seminal fluid found on A.Y.’ s underwe ar c ontained appellant’ s DNA. Appe llant denied having sexual interc ourse with A .Y., but a cknowledg ed being prese nt on the night in question. I n light of all the testimony

and other evidenc e int roduce d at the punishment stag e, we are convince d that the jury ’s p u n i s h m ent decision would not have bee n altere d by Perkins’s testimony . Point of error eig ht is overruled.14 Finding no reve rsible er

ror in appe llant’s rema ining p o ints of error , we a ffirm the judgme nt of conviction.

____________ _ _ _ _ _ _ _ ________________________ David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med on Remand Filed: Oc tober 5, 2007 Do Not Publish