1 John T. Boyd, Chi ef Ju stice (Ret.), Sevent h Court of Appeals, s itting by

assignment . Tex. Gov ’t Code Ann. § 75.002(a)(1) (Vernon Supp . 2002). NO. 07-02-0124 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E NOVEM BER 19, 2002

______________________________ ABEL REYNA , APPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 140 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2001-437868; HON ORABLEJIM B OB DAR NELL, JUD GE

_______________________________ Before REAVIS and JOHNSON, JJ., and BOYD, SJ. 1 Appellant Abel Reyna bri ngs this appe al from his convict ion for the felony offen se of a ggr ava ted sexual a ssa ult

and the j ury-assessed punishm ent, enhanced by tw o prior convictions , of life imprisonm ent in the Institutional Division of the Texas Departm ent of2

Crim in al Jus tice . H is ap pea l is p red icated o n tw o ev iden tiar

y ru lingsof t he t rial cour t wh i ch , h e a rg ue s, re qu i re re ve rs al of hi s c on vi ct i on . D i sa gr ee i ng , we affi rm.
The facts giving rise to appellant’s prosecution began on the evening of Septem ber 24, 2001, when appell ant approache d the co m plain ant and a group of her friends at a restaurant and bar in Lubbock. A ppellant and his nephew went w ith the group to one of the party’s apartm ent. After about an hour, the com plainant went w ith appellant and his nephew to get alcohol. The nephew drove the car to a house, w here he got out of thecar and appellant moved to the driver’s seat. According to the co mplainant, appel lant drove to a deserted road w here he ordered her to the back seat of the car and raped her.
On the return to tow n, appellant asked the victim if she wanted to stop s om ewh ere to eat and offered her cocaine, which she declined. W hen appellant stopped at the apartm ent com plex w here her car was, she unsuccessf

ully requested appellant’s phone numbe r and gave her phone num ber , as ser ted ly in an attem pt to later locate him for police.
The following day, Officers Chris Breunig and Tal English went to the apartm ent wher e appellant lived with his parents, Jose and Dom inga Reyna, to serve an a rres t warrant. They arrested appellant and placed him in a police car. They also saw a 1991 Pontiacma tching the descript ion of appe llan t’s car given by the victim . This car belonged to appell ant’s parents. Jose gave verbal consent to Breuni g to search thecar . B reu nig went to his car to get a w ritten consent form for Jose to sign. Whil e o utside , appellant tapped or hit the police car’s window to get his father’s attention, then told Jos e, in3

Spanish, not to sign anything. Jose then w ithdrew his consent to search the car. The officershonored this request, but took several photographs of t he outside of the car and the insi de through i ts windows.
Attrial, appel lant objec ted to any evidence of his com munication to Jos e. The overruling of this objection fo rms the basi s of appel lant’s first point of error. The State initial ly argues that appellant failed to preserve any error because his trial objection w as t hatthe evidence was not relevant, but his argum ent on appeal is that adm ission of th e evidence violates his rights guaranteed by the fourth and fifth am endme nts to the United States Constitution. We agree there ma y be som e difference betwee n the obje ction as stated at trial and the em phasis of appellant’s argum ent on appea l. Howe ver, in the inte res t of

j ust ice, w e w ill co nsid er h is ar gum ent on a ppe al. Ap pell ant’s arg um ent

in s upp ort

of t his p oint

relie s on thew ell-e sta bli she d proposition that the State m ay not useevid enc e ob tain ed d irec tly or in dire ctly

as a re sult of violation of the fourth am endme nt. See, e .g. Un ite d Stat es v. C alandra , 414 U.S. 33 8, 347, 94 S.Ct . 613, 3 8 L.Ed .2d 561 (1974). That rule is ina pplicable w here the re was no violation of a constitutional right. Here, appell ant has fail ed to identi fy any such violation.
Itis undisputed that the officers did not have a search wa rrant for the car. N or were the com mon exceptions to t he warrant requirem ent applicable; appellant was not arrested in the ca r, and t here were no exigent circum stances. See, e.g., Re yes v. Stat

e , 910 S.W.2d 585, 58 9 (Tex .App. --Am arillo 1995, pet . ref’d ) (d isc uss in g exceptions to the4

warrant requirem ent). The ir rig ht to se arc h de pen ded sole lyon the ow ner’s consent. The officers’ conduct in asking for that cons ent was noti llegal, and when the consent w as withdraw n, the officers abandoned their effortsto search the car, limiting them selves to a per m iss ible exterior examination of it. It is also undisputed that appellant’s statem ent was notthe result of custodial interrogation. The record shows the police scrupulously honored the parties’ constitutional rights and the statem ent at issue was not the result of illegal police conduct. We overrul e appellant’s first point.
In his second point, appellant assigns error to the trial court in admitti ng evidence that he had offered cocaine to the victim of the assault. He obj ected to the testimon y on the b asis that it was irrelevant and w as an ext raneous offense not disclosed by the prosecution. Citing Rules of Evidence 401 and 4 03, appellant argues the evidence was inadmissible because it was not probative of any elem ent of the offense.
The State presents three arguments in response: fi rst, the evide nce of appell ant’s attem ptto “forcefully drug the victim ” af ter theass ault

was relevant to his intent because,
as the St atecon ten ds, it w ould m akeher

less like ly t o re por

t th e as sau ltand make her less
cre dibleif she did report the offense; second, it was “sa me transaction contex tual evidence” of an event so inte gral to the offense that it was ne cessary for the j ury to understand the contex

t and circum stances of the of fense, and third, even if inadmissible, anyerror was harm less. Because contextu al evid ence must also meet the relevancy requirem ent of R ule 401, w e conside r the S tate’s

first tw o argum ents to gether.5

We initi ally no te the record doe s not support the State’s ch a racterization of the evidence as an attem pt to “forcefully drug” the com plainant. The relevant testimony w as thatwhen appellant was driving back into town w ith the victim he pulled a small bag w ith white powder from

the center console of the car a nd “asked m e if I wanted s ome of it, and I said no . . . he said it was cocaine, and he shoved it in my face. ” After she decline d a second time, appe llant threw the bag on the floor. The victim never ch aracterized appellant’s conduct in offering the cocaine as “forceful.”
In Rogers v. St

ate , 853 S.W.2d 29 (Tex.Crim .App. 1993), thecourt considered the admissibility of sam e transaction contex tual evidence. Such evidence m ust m eet both the relevancy requirement o f R ule 401 and for a purpose perm itted by Rule 404(b). In that case, th e evidence at issue concerned appellant’s poss ession of m arijuana i n a prosecution for

po ssession of m etham phetam ine. Id. at 32. The Stateadvanced the argument

that the evidence w

as relevant because th e m ari j uan a po sse ssi on “ cou ld argua blyma k e it more probable” that h e would posses s m etham phetam ine. Id. While expressing reservations about the relevance of theevid enc e, t he cour t he ld it was not so clea rly irrelevant as to justify s ubstitution of its judgm ent on the issue for that of the trial court. Id.
The lesson of Rogers

is that when reviewing the relevance of context ual evidence, the proponent can satisfy his burden toshow relevance by presenting a rational basis on which the evidence can m ake a fact at issue m ore lik ely than it would be w ithout the6

evidence. Like the court in Rogers , we are not convinced the r elevance of th e evidence at is sueto t he c har

ged off ens e is im m edia tely

apparen t. How

ever, theSt ate ’s rat iona le
cou ld be accepted by a reasona ble trier of f act. Th erefore, we cannot say th e trial court abused its discretion in finding it rel evant.
The evidence m ust also be offered for a purposeother than show ing the person acted in con fo rmi ty wit h a tr ai t o r c ha ra ct er . T ex. R. E vid. 404(b). Sam e transaction contextual evidence is adm issible as an excep tion to R ule 4 04( b) w hen it isnecessary to the jury’s understanding of the offense. Rogers , 853 S.W.2d at 33. Only if the facts of the instantoffense would make litt le or no s ens e w itho ut a lso b ring ing in the sam e transaction contextual evidence sh ould that evidence be adm itted. Id.
In su pp or t o f t he se co nd el eme nt set out in Rogers, the State contends: “the evidence of appellant’s attem ptto drug th e victim im parts to the trier of fact inform ation essential to understanding the contex t and circum stances of events which, although lega ll y separate offenses, are bl ended or i nterwoven.” It cites Mays v. State , 816 S.W.2d 79 (Tex.Crim .App. 1991) in s upport, but off ers no discussion or argum ent explaining why t he evidence was e ssential to an understanding of the events. Itis im por tan t tonote th at in Mays , the Co urtof C rim inal A ppe als held the context evidence was erroneously adm itted because it“also pos sesse d a char acter com ponent. ” Id. at 88. As n oted above, the evidence at issue here was arguably relevant but, like that in Mays , it also contained a substant ial com po nent indi cating appe llan t’s character and i ts absence would not have7

made the facts of theoffense nonsensical. W e hold the trial court erred in admitting the
ev i de nc e t ha t a pp el l an t o ff er ed co ca i ne to th e v i ct i m.
We must nex

t determine whether this er ror requi res reversal of the trial court’s judgm ent, or whether it w as “harmless.” Appellant concedes that an error of t his t ypeis
a non-constitutional error governed by Rule 44.2(b) of the Rules of Appellate Procedure. Thatrule req uires us to disregard any error that does not af fect a substantial right. A substantial right is affected when , after an exam ination of the entire record, the error had
a substantial and injurious effect or influenc e in dete rmining the j ury’s verdict. King v. State , 953 S.W.2d 266, 271 (Tex.Crim .App. 1997).
Itis well established th at we m us t consider the record as a w hole in determining whether an error i s harmless. Schutz v. State, 63 S.W.3d 442, 444 (Tex .Crim .App. 2001). Thisme ans that the appellate court should consider everything in the record, including testimony

and physical evidence, the nature of the evidence s upporting the verdict, and the character of the error and its relationship to other evidence. Id. Itwas und isputed that appellant and the com plainant had intercou rse. In ad dition to her identification of appellant, the State presented an expert witness w ho opined that DNA taken from an art icle of the com plainant’s clothing mat ched ap pellant’s DNA. This evidence w as uncontroverted. Therefore, a ppell ant’s identity was not disputed. W hen the State s ought to present the testim ony from the victim of another attack toestabli sh lack of consent, the court found the defense ha d not o pened the door on that issue and excluded the8

testimony. The gist of app ella nt’s defense w as to ide ntif y ap par ent inco nsis ten ciesin the versions of

events as reported by

the victim and police reports. In closing argumen t, the State briefly m entioned the offer of cocaine.
Our review of the entire record convinces us that the improperly ad mitted evidence did not have a substa ntial injurious effect on the jury ’s ability to reach a verdict based on the evid enc e es tab lishi ng t he e lem ents of theoff ens e. We overr ule appellant’s second and final point and affirm the j udgme nt of the trial court.
John T. Boyd Senior Justi ce Do not publish.