Gary Wayne Wilson v. State ( 2014 )

Opinion issued November 20, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-01125-CR
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GARY WAYNE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Case No. 1068173
DISSENTING OPINION
Gary Wayne Wilson was convicted of aggravated sexual assault of a child,
and the jury assessed his punishment at life imprisonment. 1 Wilson’s position
before this Court is that the trial court erred by excluding the testimony of his
1
See TEX. PENAL CODE ANN. §§ 21.02(b), (h), 22.021(a)(1)(B) (West Supp. 2014).
friends and family regarding his character for moral and safe conduct around
young children and that the error deprived him of his only meaningful defense. I
concur that the trial court’s exclusion was error and that Wilson preserved this
argument for our review, however, I do not believe the error is constitutional error
such that Wilson was deprived of a fair trial, and respectfully dissent.
Non-Constitutional Error
It is well-established that the erroneous admission or exclusion of evidence
is generally considered non-constitutional error. Melgar v. State, 236 S.W.3d 302,
308 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). The erroneous exclusion of
evidence, however, can rise to the level of constitutional error under very limited
circumstances, including when the excluded evidence “forms such a vital portion
of the case that exclusion effectively precludes the defendant from presenting a
defense.” Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). Cases
involving such constitutional errors are rare exceptions to the rule. See id. at 663
(“Erroneous evidentiary rulings rarely rise to the level of denying the fundamental
constitutional rights to present a meaningful defense.”)
The excluded evidence in this case consists of opinion testimony from seven
of Wilson’s family members and a close friend (Wilson’s two daughters, a son, a
niece, a nephew, his brother, and his brother’s girlfriend) who would have testified
that they had a “good” opinion concerning Wilson’s character in regard to his
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moral and safe conduct around children. The majority states that:
A review of the record indicates, then, that [Wilson]’s sole available
defense was the testimony of his friends and family that such actions
are not in keeping with his character. That testimony did not only go
to the heart of his defense. See Wiley, 74 S.W.3d at 405. It was the
sum total of his defense. Additionally, [Wilson]’s credibility and
character are pivotal matters in this case. See Hammer, 296 S.W.3d at
561. Accordingly, we hold that the exclusion of the evidence was
constitutional error.2
I strongly disagree that Wilson’s sole available defense at trial was that the
acts alleged were “not in keeping with his character.” Wilson’s defense, as
illustrated by the record, was that K.M. was a manipulative child with severe
psychiatric issues who was fabricating these allegations of abuse. When the
complainant testifies that the defendant sexually assaulted him, as in this case, the
defensive theory that “sexually assaulting young boys is not in keeping with my
character” is a natural corollary to the theory that “the duplicitous and mentally
2
I also note that the majority’s application of constitutional harm analysis in this
case effectively creates an impossible test under which no constitutional error
could ever be considered harmless when issues of witness credibility and
reliability are involved. The majority reasons that as an appellate court with
nothing but a cold record, it cannot “assess how the jury would have assessed the
credibility of the seven witnesses offered by the defense to testify on [Wilson]’s
good character regarding moral and safe conduct around children,” and therefore,
it cannot “determine[] beyond a reasonable doubt that the error did not contribute
to [Wilson’s] conviction or punishment.” Despite the acknowledgement that a cold
record is ill suited for determinations of credibility, the majority opinion
nevertheless discounts the testimony of K.M.’s sister and the State’s other
witnesses and even goes so far as to suggest that K.M.’s sister “could have
motivations to testify other than to give an unaltered account of what she
observed, a matter that could be informed by determinations of credibility.”
3
disturbed boy is fabricating these claims of abuse”—the latter theory is the one
Wilson advanced at trial. One theory is intrinsically linked with the other.
The boy’s lengthy history of behavioral, legal, and psychiatric problems
were extensively explored during Wilson’s cross-examination of his father and
K.M.’s doctors. 3 Indeed, Wilson’s jury argument highlighted the unreliability of
K.M.’s testimony, and maintained, as such, that the State had failed to carry its
evidentiary burden. Thus, it is evident from the record that the proffered testimony
from Wilson’s family and close-family friends regarding his character for moral
and safe conduct around young children did not constitute the “sum total of his
defense.” It is further evident that this evidence would, at most, have only
“incrementally” advanced Wilson’s defensive theory of fabrication by indirectly
attacking K.M.’s credibility. See Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim.
App. 2005) (holding erroneously excluding testimony that incrementally furthers
defense is non-constitutional error). Moreover, the fact that Wilson was unable to
present positive character testimony does not necessarily mean that the error was
of a constitutional magnitude, especially in such a case as this with physical and
corroborating evidence. See, e.g., Hammer v. State, 296 S.W.3d 555, 561–62 (Tex.
Crim. App. 2009) (stating that credibility of complainant and defendant “is a
central, often dispositive, issue” in sexual assault trials because “[s]exual assault
3
Wilson could have cross-examined K.M. and further developed this defensive
theory, but did not.
4
cases are frequently ‘he said, she said’ trials in which the jury must reach a
unanimous verdict based solely upon two diametrically different versions of an
event, unaided by any physical, scientific, or other corroborative evidence.”)
(emphasis added).
As such, I would hold that the exclusion of the proffered testimony, while
erroneous, is non-constitutional error and, therefore, subject to Rule 44.2(b)
analysis.
Harm Analysis: Non-Constitutional Error
Non-constitutional error must be disregarded unless the error affects the
defendant’s substantial rights. See TEX. R. APP. P. 44.2(b). A substantial right is
affected when an error has a substantial and injurious effect or influence in
determining a jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997); see also Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)
(stating that such error is harmless if, after reviewing entire record, reviewing court
has “fair assurance that the error did not influence the jury, or had but a slight
effect”). Accordingly, a criminal conviction should not be overturned based upon
non-constitutional error absent “grave doubt” by the reviewing court that the result
of the trial was free from the substantial effect or influence of that error. See
Burnett v. State, 88 S.W.3d 633, 637–38 (Tex. Crim. App. 2002). “Grave doubt”
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means that “in the judge’s mind, the matter is so evenly balanced that he feels
himself in virtual equipoise as to the harmlessness of the error.” Id.
Our assessment of harm resulting from a non-constitutional error examines
the entire record and we “calculate, as much as possible, the probable impact of the
error upon the rest of the evidence.” Coble v. State, 330 S.W.3d 253, 280 (Tex.
Crim. App. 2010). To be considered, among other relevant factors, is the testimony
or physical evidence admitted for the jury’s consideration, the nature of the
evidence supporting the verdict, the character of the alleged error and how it might
be considered in connection with other evidence in case. Barshaw v. State, 342
S.W.3d 91, 94 (Tex. Crim. App. 2011).
Despite the majority’s protestations to the contrary, the direct and
circumstantial evidence supporting the jury’s verdict in this case is extremely
strong, if not overwhelmingly so. See Motilla v. State, 78 S.W.3d 352, 357 (Tex.
Crim. App. 2002) (stating overwhelming evidence of guilt is one factor for court to
consider when assessing harm resulting from non-constitutional error). K.M.
testified with specific and graphic detail about four different violent sexual assaults
by Wilson, as well as various other instances of physical abuse. According to
6
K.M., Wilson became more violent with him as time went on and even began using
duct tape to physically restrain the young boy while the abuse was occurring. 4
Perhaps more importantly, K.M.’s testimony is corroborated by his sister,
who testified that she observed Wilson physically and sexually abuse K.M. on
several occasions. Like K.M., she was able to describe the sexual assault she
witnessed with specific detail for the jury. In particular, K.M.’s sister testified that
one day she was walking down the hallway of their house and noticed that K.M.’s
bedroom door was slightly ajar. She looked in and saw K.M. lying face-down on
the floor, naked, flailing his arms, with Wilson on his knees behind K.M., hunched
over the boy’s body. She heard her brother yelling for Wilson to get off him, and
she saw Wilson pinning K.M. down by holding his arms down, while he moved his
body back and forth on top of K.M. She testified that her initial failure to disclose
this sexual assault was due to Wilson’s threat to kill her and her father if she did.
She also corroborated K.M.’s testimony about Wilson’s other sexually
inappropriate behavior while living with them and their mother that at an expert
characterized as “grooming” (i.e., that Wilson walked around the house naked, had
sex with their mother in front of them, and that Wilson kept pornographic
magazines in the bathroom and on the living room coffee table).
4
K.M. described one occasion for the jury when Wilson tied K.M.’s hands together
with duct tape and bound the first or second grader to the frame of his bed so that
he could not escape Wilson’s violent sexual assault.
7
Both K.M. and his sister’s testimony was further corroborated by Dr.
Donaruma, a child abuse pediatrician, who discovered an anal tear in the course of
her 2006 examination of K.M. consistent with sexual abuse. Donaruma explained
that such injuries are not only uncommon but consistent with repeated anal sexual
assault over a number of years. On cross-examination, Dr. Donaruma testified that
although there could be multiple explanations for the oval tear that she described,
given the “absence of a history of constipation, encopresis, or painful defecation,”
K.M.’s injury was “highly suspicious for the occurrence of penetrating anal
trauma.” (emphasis added).
K.M.’s father and his elementary school counselor5 also testified that K.M.
began to act out at school and demonstrate significant behavioral problems
beginning in kindergarten/first grade—when Wilson began living with the family.
This evidence corroborates K.M.’s testimony that he started acting out at school
when he was in kindergarten and first grade as a result of the sexual and physical
abuse he was experiencing at home by Wilson. Specifically, K.M.’s guidance
counselor testified that towards the end kindergarten and beginning of his first
grade year, K.M., who had previously never exhibited behavioral problems in the
classroom, began to get very angry, very easily and was prone to emotional,
violent outbursts (e.g., kicking and screaming or pushing chairs). These behavioral
5
The majority omits mentions of testimony from K.M.’s elementary school
counselor, which corroborates K.M.’s and his father’s testimony.
8
problems escalated to the point where he would run out of the classroom and onto
the playground and, if already on the playground, runaway from school altogether.
In October 2005, after she saw bruises on K.M.’s back and legs and scratches on
his neck and ear lobes, the counselor contacted CPS. K.M., in second grade at the
time, testified that he had confided Wilson’s physical abuse to the counselor.6
The psychiatric testimony as to the improvement of K.M.’s attitude and
behavior once he moved out of the home he shared with his mother and Wilson
also supports this claim; as do K.M.’s PTSD diagnosis, history of suicidal ideations
at the tender age of seven or eight,7 the testimony of his father and two other
treating therapists/psychologists 8 about his behavioral and interpersonal problems,
and the testimony of Dr. Thompson that PTSD can be a sign of sexual abuse and
that sexually abused children exhibit characteristics such as depression, suicidality,
and interpersonal difficulties and often have problems dealing with authority
figures. The evidence corroborating K.M.’s and his sister’s testimony regarding the
sexual abuse is abundant.
6
Six months later, in March 2006, K.M. told his therapist that Wilson had sexually
assaulted him.
7
K.M.’s psychiatrist testified that K.M. was hospitalized, in part, because the seven
or eight-year-old boy had reported having suicidal ideations (i.e., wanting to kill
himself) and hearing voices telling him to hurt his mother.
8
In particular, therapist Sherry Taylor who began treating K.M. in January 2006
and clinical psychologist Lisa Matthews who treated K.M. in 2012.
9
Absolutely crucial to note is that Wilson’s character is not critical to the
disposition of the present case because this is no simple “he said, she said” case—
here, there is evidence of an anal injury consistent with sexual abuse (“highly
suspicious for the occurrence of penetrating anal trauma,”) and other corroborating
testimony from K.M.’s father, sister, elementary school counselor, therapists, and
doctors. Cf. Hammer, 296 S.W.3d at 561–62 (stating that credibility of
complainant is important in sexual assault trials because “[s]exual assault cases are
frequently ‘he said, she said’ trials in which the jury must reach a unanimous
verdict based solely upon two diametrically different versions of an event, unaided
by any physical, scientific, or other corroborative evidence.”) (emphasis added).
Sexual assault cases rarely have such compelling corroborating evidence.
After reviewing the entire record in this case, including the ample evidence
supporting the jury’s verdict, I have “fair assurance” that the exclusion of Wilson’s
good character evidence “did not influence the jury, or had but a slight effect.”
After applying the proper non-constitutional harm analysis, I would hold that the
erroneous exclusion of the testimony from seven of Wilson’s close family and
friends was non-constitutional error and does not require reversal. Accordingly, I
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would affirm the trial court’s judgment.
Jim Sharp
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Justice Sharp, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
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