Samuel Ukwuachu v. State

IN THE
TENTH COURT OF APPEALS
No. 10-15-00376-CR
SAMUEL UKWUACHU,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2014-1202-C2
MEMORANDUM OPINION
Samuel Ukwuachu appeals from a conviction for the offense of sexual assault.
TEX. PENAL CODE ANN. § 22.011 (West 2011). In six issues, Ukwuachu complains that the
trial court erred by allowing the State to reference the cell phone records of his roommate
during its cross-examination of his roommate and his roommate's friend, that the
indictment was defective, that evidence of an extraneous offense was improperly
admitted, that his due process rights were violated due to an abuse of the grand jury
process by the State, and that text messages between the victim and a friend of hers the
night of the alleged offense were improperly excluded pursuant to Rule 412 of the Rules
of Evidence. Because we find that the trial court erred by disallowing the admission of
evidence pursuant to Rule of Evidence 412, we reverse the judgment of conviction and
remand this proceeding for a new trial. Because the issue regarding the sufficiency of the
indictment would result in greater relief for Ukwuachu, we will address that issue first.
INDICTMENT
In his third issue, Ukwuachu complains that the indictment against him is facially
insufficient for failing to allege the manner and means in which the lack of consent was
obtained. Ukwuachu did not file a motion to quash the indictment prior to trial.
"The sufficiency of an indictment is a question of law." State v. Moff, 154 S.W.3d
599, 601 (Tex. Crim. App. 2004). "[T]o comprise an [information] within the definition
provided by the constitution, an instrument must charge: (1) a person; (2) with the
commission of an offense." Cook v. State, 902 S.W.2d 471, 477 (Tex. Crim. App. 1995). "[A]
written instrument is an indictment or information under the Constitution if it accuses
someone of a crime with enough clarity and specificity to identify the penal statute under
which the State intends to prosecute, even if the instrument is otherwise defective."
Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997). If the State fails to allege
an element of an offense in an indictment or information then this failure is a defect in
substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App. 1990). The accused must
object to substance defects before trial begins; otherwise the accused forfeits his right to
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raise the objection on appeal or by collateral attack. TEX. CODE CRIM. PROC. ANN. art.
1.14(b) ("If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial on the merits
commences, he waives and forfeits the right to object to the defect, error, or irregularity
and he may not raise the objection on appeal or in any other postconviction proceeding.");
Duron, 956 S.W.2d at 550-51. Because Ukwuachu did not file a motion to quash the
indictment in this proceeding, this complaint has been waived. We overrule issue three.
TEXT MESSAGES
In his sixth issue, Ukwuachu complains that the trial court erred by failing to admit
a series of text messages between the victim and a friend of hers made immediately prior
to the offense.1 The trial court did admit a series of messages between the victim and that
same friend that took place very shortly after the offense. Ukwuachu sought to have the
entire series of messages admitted into evidence in order to support his defense that the
victim consented to sexual intercourse. The State requested that the trial court conduct a
hearing pursuant to Rule 412 of the Rules of Evidence to determine the admissibility of
the messages. The trial court conducted an in camera hearing at which only the parties
and their attorneys were present. The trial court found that the messages prior to the
offense were not admissible pursuant to Rule 412. The trial court also found that there
1Because this is a memorandum opinion and the parties are familiar with the facts, we will not discuss the
facts except as necessary to understand this opinion. TEX. R. APP. P. 47.3.
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was enough of a break in between the messages that they did not constitute one
conversation pursuant to Rule 107 of the Rules of Evidence (Rule of Optional
Completeness).
Rule of Evidence 412 applies in prosecutions for sexual assault, aggravated sexual
assault, or for attempts to commit sexual assault or aggravated sexual assault. Rule 412(a)
absolutely prohibits opinion or reputation evidence of the past sexual behavior of an
alleged victim in these prosecutions. Under Rule 412(b), however, evidence of specific
instances of past sexual behavior may be admitted when three conditions are met. First,
the procedural requirements of paragraph (c) and (d) concerning the in camera hearing
and the sealing of the record must be satisfied. Second, the proponent of the evidence
must establish that the evidence of specific instances of the victim's sexual behavior fall
into one of the five categories set forth in Rule 412(b)(2). Third, under Rule 412(b)(3), the
probative value of the offered evidence must outweigh the danger of unfair prejudice.
Even if the evidence falls within the enumerated categories of Rule 412(b)(2), the court
must further find that its probative value outweighs the danger of unfair prejudice. See
Holloway v. State, 751 S.W.2d 866, 869-70 (Tex. Crim. App. 1988). Simply put, if the
evidence falls within any of the exceptions itemized in Rule 412(b)(2) and its probative
value outweighs the danger of unfair prejudice, it is admissible. See Boyle v. State, 820
S.W.2d 122, 148-49 (Tex. Crim. App. 1989).
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In this case, the text messages were made immediately prior to the offense and
appeared to potentially relate to prior occasions where the victim and Ukwuachu had
engaged in some type of sexual conduct. We find that the messages in question would
fall within the exception listed in Rule 412(2)(B) because the evidence "concerns past
sexual behavior with the defendant and is offered by the defendant to prove consent."
TEX. R. EVID. 412(b)(2)(B).2
The inquiry does not end there, however. The evidence must also be shown to be
admissible pursuant to the balancing test required by Rule 412(b)(3). The function of the
balancing test of Rule 412(b)(3), where the trial court balances the probative value against
the danger of unfair prejudice, is generally consistent with that under Rule 403, although
the tests do differ. TEX. R. EVID. 403. Under Rule 403, the opponent of the admission of
the evidence bears the burden of showing that the danger of unfair prejudice
substantially outweighs the probative value of the evidence. Under Rule 412(b)(3) the
burden falls on the proponent of the evidence, in this case, Ukwuachu, to show that the
probative value of the evidence outweighs the unfair prejudice. The general balancing
test under Rule 403 weighs in favor of the admissibility of evidence, while Rule 412(b)(3)
weighs against the admissibility of evidence. See Boyle, 820 S.W.2d at 148 n.9.
2Because we recognize that we are not the final authority to determine the admissibility of this evidence,
we have intentionally avoided a detailed discussion or recitation of the content of the text messages.
Ukwuachu v. State Page 5
It is not apparent from the record whether the trial court actually performed the
balancing test required by Rule 412(b)(3). However, our review of the messages in
question demonstrates that the probative value of the messages outweighed any unfair
prejudice. The messages were probative on the issue of consent and were not particularly
graphic nor did they paint the victim in a negative light. We find that Ukwuachu met his
burden to demonstrate that the probative value outweighed the danger of unfair
prejudice, and the trial court abused its discretion in finding otherwise.
RULE OF OPTIONAL COMPLETENESS
Rule of Evidence 107 states that "[i]f a party introduces part of an act, declaration,
conversation, writing, or recorded statement, an adverse party may inquire into any other
part on the same subject." The text messages in question started when the victim was
letting her friend know that she and Ukwuachu were not coming to a Homecoming party
and continued during the time the victim was in Ukwuachu's apartment. There was a
short break in the messages during the time that the victim stated that the offense
occurred and resumed almost immediately thereafter, resulting in the message that the
State introduced during the victim's testimony where she texted her friend that
Ukwuachu had "basically raped [her]." We find that the text messages were part of an
ongoing conversation and that after the State sought to introduce one of the messages,
the Rule of Optional Completeness allowed Ukwuachu to inquire into any other part of
Ukwuachu v. State Page 6
the same subject, which are the messages in question. The trial court's determination that
Rule 107 did not apply was an abuse of discretion and therefore, erroneous.
HARM
Having found that the trial court erred by excluding the messages in question
pursuant to either Rule 107 or Rule 412, we must determine whether this error was
harmful. The erroneous exclusion of a defendant's evidence generally constitutes non-
constitutional error unless 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). Here, the evidence excluded did not
prevent Ukwuachu "from presenting the substance of his defense to the jury." See id. at
666. We therefore apply the harmless error standard of Rule 44.2(b) of the Texas Rules of
Appellate Procedure. See id. at 662.
Rule 44.2(b) provides that any non-constitutional error which does not affect
substantial rights must be disregarded. See TEX. R. APP. P. 44.2(b). Substantial rights are
not affected by the erroneous exclusion of evidence "if the appellate court, after
examining the record as a whole, has fair assurance that the error did not influence the
jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
In assessing the likelihood that the jury's decision was adversely affected by the
error, we consider everything in the record, including any testimony or physical evidence
admitted for the jury's consideration, the nature of the evidence supporting the verdict,
Ukwuachu v. State Page 7
and the character of the alleged error and how it might be considered in connection with
other evidence in the case. Motilla, 78 S.W.3d at 355. Neither party has the burden to
prove harm from an error. Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). It is
the duty of the reviewing court to assess harm from the context of the error. Id.
We have reviewed and considered everything in the record using the appropriate
standards. We find that because consent was the central issue in the proceeding, we
cannot say that we have a fair assurance that the erroneous exclusion of the text messages
did not affect the outcome of this proceeding, especially when considered with the other
alleged errors in the trial of this cause. We sustain issue six.
CONCLUSION
Having found that the exclusion of the text messages was erroneous and their
exclusion harmed Ukwuachu, we reverse the judgment of conviction and remand this
proceeding for a new trial. Because we have found this error to constitute reversible
error, we do not reach issues one, two, four, or five. TEX. R. APP. P. 47.1.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded
Opinion delivered and filed March 22, 2017
Do not publish
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