Vernon v. State

OPINION ON REMAND

FARRIS, Justice.

Donald Vernon was convicted of aggravated sexual assault for putting his finger into the sex organ of his thirteen-year-old stepdaughter, K.D., and sentenced to life imprisonment. See Tex.Penal Code Ann. § 22.-021(a)(l)(B)(i) (Vernon 1989). In our previous opinion, Vernon v. State, 814 S.W.2d 845 (Tex.App.—Fort Worth 1991, pet. granted), we affirmed Vernon’s conviction holding the trial court did not abuse its discretion in admitting K.D.’s testimony, concerning several unalleged similar acts of sexual abuse committed by Vernon against her, because it was a part of the ongoing crime itself and might fairly be regarded as individual manifestations of the growing abuse by Vernon of K.D.

The Court of Criminal Appeals granted Vernon’s petition for discretionary review and reversed our decision holding Boutwell v. State, 719 S.W.2d 164 (Tex.Crim.App.1985), no longer has precedential value and the exception it recognized, for cases involving sexual abuse of a child by one standing in a parental relationship, has no legal force independent of Tex.R.CRIM.Evid. 404(b). On remand, we are to evaluate the harm caused by the admission of the extraneous offenses evidence under Texas Rule of Appellate Procedure 81(b)(2). See Vernon v. State, 841 S.W.2d 407, 410-11 (Tex.Crim.App.1992).

We reverse the trial court’s judgment.

Under Texas Rule of Appellate Procedure 81(b)(2), trial court error requires reversal of the judgment unless we determine beyond a reasonable doubt that it did not contribute to the conviction or to the punishment. The procedure for reaching this determination is to (1) isolate the error and all its effects, using the considerations enumerated in Harris¹ and any other considerations suggested by the facts of an individual case, and (2) ask whether a rational trier of fact might have reached a different result if the error and its effects had not resulted. Harris v. State, 790 S.W.2d 568, 588 (Tex.Crim.App.1989). This requires an evaluation of the entire record in a neutral, impartial, and even-handed manner, not in the light most favorable to the prosecution. Id. at 586.

In the instant case, the source of the error was the State and the nature of the error was the admission of testimony concerning unalleged sexual offenses committed by Vernon against K.D. The record reveals the State emphasized this evidence which undoubtedly called the jury’s attention to it.

After reviewing the above law and the record in this case, we hold the evidence of extraneous offenses served no other purpose than as proof of Vernon’s bad character and that the alleged offense was consistent therewith, and we cannot say it did not contribute to his conviction or punishment. See, e.g., Jessup v. State, 853 S.W.2d 141 (Tex.App.—Fort Worth 1993, pet. filed) and Hill v. State, 852 S.W.2d 769 (Tex.App.—Fort Worth 1993, pet. ref'd).

Consequently, we sustain Vernon’s second point of error, reverse the trial court’s judgment, and remand the case for a new trial.

1 . In Harris, the Court of Criminal Appeals stated a reviewing court, in applying the harmless error rule, should consider the source and nature of the error, the extent to which it was emphasized by the State, its probable collateral implications, the weight a juror would probably place upon the error, and whether declaring it harmless would be likely to encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989).