Opinion
No. 06-16-00161-CR
07-06-2017
DONALD HARRELL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court Bowie County, Texas
Trial Court No. 15F0778-005 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
On September 16, 2015, F.H. made an outcry of sexual abuse against her uncle, Donald Harrell. As a result, a Bowie County jury convicted Harrell of two counts of aggravated sexual assault of a child and one count of indecency with a child by contact. For each of the two convictions of aggravated sexual assault of a child, Harrell was sentenced to imprisonment for life, and for the conviction of indecency with a child, he was sentenced to imprisonment for twenty years, with the sentences to run concurrently.
Pursuant to Rule 9.10(a)(3) of the Texas Rules of Appellate Procedure, we refer to any person who was a minor at the time of the alleged offenses by their initials. TEX. R. APP. P. 9.10(a)(3).
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(iii) (West Supp. 2016).
See TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2011).
On appeal, Harrell asserts that the trial court (1) lacked jurisdiction to convict him of the lesser-included offense of indecency with a child by contact and (2) that his substantial rights were affected by the trial court's error in admitting testimony of an extraneous offense because (a) he did not establish a rebuttable defensive theory and (b) the extraneous offense was not similar to the charged offenses. We find (1) that the trial court had jurisdiction to convict Harrell of indecency with a child, but (2) that Harrell's substantial rights were affected by the trial court's erroneous admission of extraneous-offense evidence on rebuttal. Consequently, we will reverse the judgment of the trial court and remand this cause for a new trial.
I. Trial Proceedings
At trial, the State offered the testimony of Lee Foreback, who is the director of social services and girls case worker at Watersprings Ranch (the Ranch). Foreback testified that F.H. was placed at the Ranch in January 2015 and that she had weekly interactions with F.H. On September 16, 2015, F.H. confided in her that F.H.'s uncle Donny (Harrell) had put his hand down her pants, made her watch bad movies, and had laid naked on top of her while she was naked and hunched on her. Foreback said that F.H. struggled with making the statements, but afterward, it was like a weight had been lifted off of her. Foreback reported the alleged abuse to the 1-800 hotline, to the police, and to F.H.'s father and took F.H. to the Children's Advocacy Center (CAC).
Watersprings Ranch is a residential facility for abused or neglected children.
James Harrell, F.H.'s father and Harrell's brother, testified that he was a single father and had moved to New Boston, where his mother lived, with his daughter in 2011. When he found a job, F.H. would stay at his mother's house at 119 Hall Street while he worked. James testified that at the time, Harrell was living with their mother, and F.H. was nine years old. He said that at one point in time, he became uncomfortable with F.H. staying with his mother when his mother told him that her neighbors had called the police on Harrell. James also testified that F.H. had not told him about the sexual assaults and that he was devastated when Foreback told him about them.
Jasmine Baker testified that she sent F.H. to the CAC for a forensic interview and that she had taken the statement of Harrell. Harrell's interview was recorded on a DVD, and an edited version of the interview was played for the jury.
The State offered the edited version of the interview into evidence, which was reviewed by Harrell outside the presence of the jury. After Harrell's review of the edited version, the edited version of the interview was admitted without objection.
In the interview, Harrell denied that he inappropriately touched F.H., or any other child. Although he admitted that he watched pornography, he insisted that he did not watch child pornography. He said that he has both a computer and an iPad and that he never watched pornography on the computer. Rather, he said he watched it on his iPad in his bedroom with his door locked because he did not want his mother to see him. He also acknowledged that he was in the house when his mother would keep F.H. Harrell stated that he rarely watches anything sexual because he is sixty years old and takes so much medicine, he cannot do anything. He told Baker that she was welcome to look at the computer because there was nothing on it. Harrell also discussed with Baker a time that the police were called to his residence, and he explained that he had loose fitting pants with a drawstring that had fallen down in front of F.H., which he quickly pulled up and tied. He said the neighbors saw it and called the police, but that when the police came out, F.H. told them that nothing had happened.
After Harrell's statement was played, Baker testified that she did not take his computer into her custody since he admitted that he watched pornography. She also testified that F.H. did not have a sexual assault examination, and that no DNA was collected from either F.H. or from Harrell's house, since the alleged assault had occurred about two years before F.H.'s outcry and there was no likelihood that any evidence (if it had once existed) would have remained.
On cross-examination, Baker affirmed that Harrell had voluntarily come to the police station to give his statement and that no one made any allegations that he had child pornography on his computer. She also acknowledged that it was a possibility that Harrell was impotent because of the medicines he was taking.
F.H. testified that she was born in January 2004 and that when she was nine years old, she would stay with her grandmother when her father went to work or ran errands. She said that Harrell was living with her grandmother at the time. She said that her grandmother was always there, but that she would sometimes take naps. F.H. testified that Harrell had shown her digital recordings on the computer in the kitchen three or four times when her grandmother took a nap or would be in her sunroom, these recordings portraying a couple engaging in sex. She also testified that on two occasions, Harrell had her go into his bedroom, closed the door, and had her remove her clothes, including her pants and underwear. He would then have her lie face down on his bed; he would then remove his pants, get atop her, and begin humping on her. She said that when he did that, she would feel his penis touching her vagina. Harrell stopped when he heard his mother arise and told F.H. to don her clothes and return to the living room. She said that her grandmother's bedroom was beside Harrell's. Although F.H. told no one about these instances because she was afraid, Harrell never instructed her to remain silent about what had occurred. Foreback was the first person she told about what happened.
F.H. also testified about another time when she was sitting in the living room and Harrell came in, sat beside her, put his hands down her pants, and touched her privates but did not penetrate her vagina. F.H. said her grandmother did not see this occur because she was in the kitchen cooking dinner and Harrell ceased when her grandmother called them to dinner. She also said that on the day the police were called by the neighbors, Harrell was about to start weed-eating and tied his pants so they would not fall down. She said that he did not show her his privates that day and that she told this to the police.
On cross-examination, F.H. described the layout of her grandmother's house and said that one could not see into the kitchen from the living room. She affirmed that her grandmother was always at the house when she was present and that she was never alone with Harrell in the house. She testified that she had twice seen Harrell undress and saw his penis and testicles both times, but did not see anything odd. She said that when she saw Harrell watching videos at other times, they were recordings of younger adults.
Missy Davison, the program director at the CAC, testified that F.H. was interviewed by Kayleigh Dodson, an on-staff forensic interviewer, on October 7, 2015. She said that she had reviewed the tape of the interview and that in her opinion, F.H. did not appear to have been coached. She also testified that it is quite common for there to be a delayed outcry when sexual abuse has occurred.
After the State rested, Harrell testified on his own behalf, denying culpability for the charged offenses. He also acknowledged that he had a conviction for arson in 1977, two burglary convictions in 1983, and previous convictions for escape and unauthorized use of a motor vehicle. He testified that he had problems with drugs and alcohol when he was younger, but that he had eschewed alcohol and illegal drugs since 1994. Harrell testified that he has hepatitis C, herpes simplex 2, a bad heart, and a bad thyroid gland. These medical problems, among others, dictated that he take medicines for high triglycerides and cholesterol, diabetes, high blood pressure, chronic depression, and insomnia. He maintained that his medications have rendered him impotent. He also testified that in September 2011, he began interferon treatments that lasted until March 2012. He said that the treatments destroyed his immune system to the extent that he had constant diarrhea, upset stomach, skin peeling off his hands, and rashes and sores all over his body during these seven months. He also testified that his herpes simplex 2 manifested during these months in a big open sore on his penis. Harrell also testified that he had lost his left testicle in an accident.
Harrell agreed that F.H. described the layout of his mother's house accurately. However, he claimed that one could see into the dining room and kitchen from the living room. He also testified that he had a desktop computer that was kept in the dining room and open to the kitchen. On the other hand, he played video games and watched movies (including pornography) only on his tablet computer in his bedroom. Harrell said that his mother prepared the meals in his house and that she could see what is displayed on the monitor of his desktop computer from the kitchen.
On cross-examination, the State asked Harrell if being impotent meant that he has lost all sexual desire, to which he responded, "Sure. Mostly." He stated that he still looked at pornography now and then, and he related that he still had some sexual desires when he gave his statement to the police in 2015, but that he no longer had those desires. Harrell admitted that he watched pornography in his bedroom (which he watched every two to three months) and locked the door so his mother would not see, and he admitted that he could conduct activities behind closed doors. He acknowledged that almost every time F.H. was at his mother's house, he was also present, but he denied ever having shown F.H. any pornographic videos. He also denied that F.H. had ever been in his bedroom and further denied all of her allegations, saying that he was not attracted to children.
After Harrell rested, the trial court conducted a hearing outside the presence of the jury on the State's request to introduce testimony of another victim in rebuttal of Harrell's testimony. The State argued that Harrell had opened the door to that evidence by asserting a defensive theory of impotence and lack of sexual desire. Harrell objected to the admission of S.B.'s testimony and argued that he had not opened the door by asserting a defensive theory and that S.B.'s proposed testimony would not be in response to Harrell's claim of impotence or diminished sexual desire. After listening to the proposed testimony of S.B., the trial court held that the testimony would be permitted because it went to the issue of impotence and lack of sexual desire.
S.B. (fourteen years old at the time of trial) testified that when she was nine years old, she lived across the street from Harrell and that he babysat her and some other members of her family between March 2011 and July 2011. She testified that one time she was watching a movie in his living room when he asked her to go into the kitchen. Harrell was on his computer in the kitchen and showed her sexual pictures of a girl around ten to fourteen years old. He then asked her to pose for a photograph like it and said in return that he would give her a toy. She testified that he told her to keep the door unlocked and that he would come early in the morning when everyone was asleep, take the photo, and leave. S.B. also testified that on another occasion, Harrell made a sexual hand gesture toward her by forming one hand in a circle and putting his other index finger in and out, which she demonstrated for the jury. She also related an incident in which Harrell and she were waiting at a school for her sisters and she was in the front seat next to him. She said he pulled down the front of his shorts, exposed and rubbed his penis up and down, and asked her to touch it.
Although some of S.B.'s testimony contradicted Harrell's testimony that he never watched pornography on the computer in the kitchen, "[i]mpeachment is not among the listed exceptions in Rule 404(b)." DeLeon v. State, 77 S.W.3d 300, 313 (Tex. App.—Austin 2001, pet. ref'd). Further, except for certain criminal convictions, the Texas Rules of Evidence do not allow the State to "offer extrinsic evidence to prove specific instances of [Harrell]'s conduct in order to attack . . . [his] character for truthfulness." TEX. R. EVID. 608(b).
Counts one and two of the indictment each charged Harrell with two counts of aggravated sexual assault of a child by intentionally and knowingly causing the sexual organ of F.H., a child younger than fourteen years of age, to contact the sexual organ of Harrell. Count three of the indictment charged Harrell with aggravated sexual assault of a child by intentionally and knowingly causing the penetration of the sexual organ of F.H., a child younger than fourteen years of age, by Harrell's finger. Under the jury charge, the jury was allowed to convict Harrell under count three of either aggravated sexual assault of a child as charged, or of indecency with a child by contact. Under count three, the jury found Harrell not guilty of aggravated sexual assault of a child, but found him guilty of indecency with a child by contact.
II. The Trial Court Had Jurisdiction to Convict Harrell of the Lesser-Included Offense of Indecency With a Child
In his first point of error, Harrell asserts that the trial court was without jurisdiction to convict him of indecency with a child since it was not a lesser-included offense of aggravated sexual assault of a child as charged in count three of the indictment. Harrell argues (relying on Dudley v. State, 334 S.W.3d 20 (Tex. App.—Dallas 2008), judgm't vacated, 302 S.W.3d 884 (Tex. Crim. App. 2010) (per curiam)), that since count three of the indictment did not allege that he committed aggravated sexual assault with the intent to arouse or gratify his sexual desire, indecency with a child by contact cannot be a lesser-included defense.
However, the Texas Court of Criminal Appeals vacated the judgment of the court of appeals in Dudley and remanded the case to the court of appeals for reconsideration in light of its opinion in Evans v. State, 299 S.W.3d 138 (Tex. Crim. App. 2009). Dudley v. State, 302 S.W.3d 884, 884-85 (Tex. Crim. App. 2010). In Evans, the Court of Criminal Appeals held that "indecency with a child is a lesser-included offense of aggravated sexual assault of a child when both offenses are predicated on the same act." Evans, 299 S.W.3d at 143. That is the situation presented in this case. Therefore, we find that indecency with a child by contact was a lesser-included offense of aggravated sexual assault of a child as charged in count three and, therefore, that the trial court had jurisdiction to convict Harrell of indecency with a child by contact. We overrule Harrell's first point of error.
On remand, the Dallas Court of Appeals affirmed the trial court's judgment placing Dudley on deferred adjudication community supervision after he pled no contest to the indicted charge of aggravated sexual assault of a child since both offenses were predicated on the same act. Dudley v. State, No. 05-07-01083-CR, 2010 WL 3961270, at *1-2 (Tex. App.—Dallas Oct. 12, 2010, no pet.) (op. on remand) (not designated for publication).
III. The Trial Court Erred in Admitting Extraneous-Offense Evidence
In his second point of error, Harrell asserts the trial court erred in admitting extraneous-offense evidence. Harrell argues that he did not establish a defensive theory of impotence and lack of sexual desire in his direct testimony and, therefore, that he did not open the door for the State to offer evidence of extraneous offenses on rebuttal. He also argues that since any link between his claimed impotence and lack of sexual desire was elicited by the State on its cross-examination, this cannot be the basis for admitting evidence of extraneous offenses on rebuttal. Finally, Harrell argues that the extraneous-offense evidence did not rebut any defensive theory of impotence and lack of sexual desire. The State contends that Harrell established a defensive theory of impotence when he was questioned in his direct testimony regarding the effects of his multiple medications. The State contends (without any supporting citation to the record) that Harrell had advanced a defensive theory that his impotence "prevented him from developing an intent to sexually arouse or gratify himself." We disagree.
A. Standard of Review
"A trial court's ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard." Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). When the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion, and we will uphold the trial court's ruling. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005) (quoting Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)).
Rule 404(b)(1) of the Texas Rules of Evidence provides, "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." TEX. R. EVID. 404(b)(1). However, extraneous-offense "evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. EVID. 404(b)(2); see Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005). Extraneous-offense evidence may also be admissible to rebut a defensive theory under Rule 404(b)(1). Williams, 301 S.W.3d at 687 (citing Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003)). Thus, "[e]vidence that is otherwise inadmissible may become admissible when a party opens the door to such evidence" by asserting a defensive theory. Id. (citing Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009)). A defensive theory, or issue, is one "that negates one of the elements of the offense." Martin, 173 S.W.3d at 466 (citing Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004)). A party may introduce extraneous-offense evidence "if such evidence logically serves to make more or less probable an elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or defensive evidence that undermines an elemental fact." Id. (citing Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh'g)).
In addition, Article 38.37, Section 2, of the Code of Criminal Procedure allows the introduction of certain extraneous child sexual offenses in trials alleging a sexual offense against a child, "[n]otwithstanding Rule[] 404" on "relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant." See TEX. CODE CRIM. PROC. art. 38.37, § 2(a), (b) (West Supp. 2016). However, Article 38.37 requires the State to give the defendant notice that it intends to use such evidence at least thirty days before the date of trial. TEX. CODE CRIM. PROC. art. 38.37, § 3 (West Supp. 2016). In this case, although the State gave notice of its intent to use S.B's testimony, its notice was not given until July 14, 2016, which was less than thirty days before the date of trial. Additionally, the trial court did not hold a Section 2(b) hearing. See TEX. CODE CRIM. PROC. ANN. art 37.37, § 2(b).
Generally, when the State wishes to rebut a defensive theory by extraneous-offense evidence, the defensive theory must first have been elicited on direct examination by the defense. Roberts v. State, 29 S.W.3d 596, 601 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). Further, "when a defendant voluntarily or nonresponsively testifies concerning extraneous matters on cross-examination, the State may correct any false impression presented by such answer." Id. (citing Martinez v. State, 728 S.W.2d 360, 361-62 (Tex. Crim. App. 1987)). However, extraneous evidence is not admissible to rebut a defensive issue which is elicited by the State on its cross-examination. Shipman v. State, 604 S.W.2d 182, 184-85 (Tex. Crim. App. [Panel Op.] 1980); Roberts, 29 S.W.3d at 601. A defendant may also open the door to the admission of extraneous evidence by presenting a defensive theory in his opening statement. De La Paz v. State, 279 S.W.3d 336, 345 (Tex. Crim. App. 2009).
B. Application
Other than evidence either introduced by the State or elicited on cross-examination by the State, any testimony regarding Harrell's impotence or lack of sexual desire is sparse. In his opening statement, Harrell told the jury that the case hinges solely on the credibility of F.H.'s story, making no mention of impotence or lack of sexual desire. The first reference to any sexual incapability on Harrell's part occurred when the State played its edited version of Harrell's interview during Baker's direct examination. In that interview, Harrell told Baker that he rarely watches anything of a sexual nature because he is sixty and takes so much medicine that he cannot do anything. In his cross-examination of Baker, Harrell asked if she had "any doubt that he's impotent because of the medicines he takes?" Baker responded, "There's a possibility."
On direct examination, after Harrell discussed his health issues and the multiple medications he takes to address them, his attorney asked him if all the medications have left him impotent. Harrell responded affirmatively. No further inquiry regarding his sexual incapability or lack of sexual desire was made during his direct testimony. In the context of the State introducing Harrell's edited interview, it appears this line of questioning was intended to flesh out his interview statement in which Harrell pointed out that he was sixty years old, takes a lot of medicine, and cannot do anything, rather than the development of a defensive theory of impotence.
More importantly, though, a claim of impotence would not negate any element of the offenses with which Harrell was charged. As seen above, count three of the indictment charged Harrell with aggravated sexual assault of a child by causing the penetration of F.H.'s sexual organ with his finger. Whether Harrell was impotent would be irrelevant to this charge since it could not negate any element of the State's case. In the first two counts of the indictment, Harrell was charged with aggravated sexual assault of a child by causing F.H.'s sexual organ to contact Harrell's sexual organ. Again, Harrell could be found guilty of these charges merely by causing contact between his sexual organ and F.H.'s sexual organ, irrespective of whether he was impotent. Therefore, even if this record could be reasonably construed to support a finding that Harrell asserted the issue of impotence in an effort to contravene the State's charges, since impotence would not negate any element of the State's case, impotence would not be a defensive theory. See Martin, 173 S.W.3d at 466.
The State argues that a defendant raises a defensive theory in the context of charged sexual offenses by presenting evidence of physical capacity or denial of a propensity to commit such acts, citing Mendiola v. State, 995 S.W.2d 175, 178-81 (Tex. App.—San Antonio 1999), rev'd on other grounds, 21 S.W.3d 282 (Tex. Crim. App. 2000); Wilson v. State, 730 S.W.2d 438, 440-41 (Tex. App.—Fort Worth 1987, pet. ref'd); and Ballard v. State, 464 S.W.2d 861, 862-63 (Tex. Crim. App. 1971). However, in both Mendiola and Wilson, the defendants put on testimony from multiple witnesses and asserted multiple defensive theories. See Mendiola, 995 S.W.2d at 178-81 (in addition to impotency, witness testimony asserted defendant would be unable to commit the acts because of his advanced age of eighty-one, it would be too painful after his eye surgery, he was not the type of person to commit the acts charged, and he was incapable of forming the intent to arouse or gratify sexual desire due to his medical conditions); Wilson, 730 S.W.2d at 440-41 (in addition to impotency, witness testimony that defendant was not the type of person to commit the acts and that the victim was brainwashed by his father who wanted to avenge his failed marriage on defendant). Thus, the extraneous offenses were admitted in these cases to rebut multiple defensive theories and, therefore, do not support the State's proposition that a defensive theory is raised by a claim of impotency in every case that charges a sexual offense. Ballard, in which there was no claim of impotency, also does not support the State's proposition. See Ballard, 464 S.W.2d at 862-63.
In addition, Harrell never raised a claim of lack of sexual desire. On cross-examination, the State (not Harrell) raised the issue of a lack of sexual desire:
Q [By the State] Okay, Mr. Harrell. I want to start by asking you a few questions about your impotence and your pornography.
A Sure.
Q If you are impotent, does that mean that you have lost all sexual desire?
A Sure. Mostly.From this testimony, it is clear that any question of the absence of a lack of sexual desire on Harrell's part was raised by the State. Extraneous evidence is not admissible to rebut a defensive issue elicited by the State on its cross-examination. Shipman, 604 S.W.2d at 184-85; Roberts, 29 S.W.3d at 601. Further, this testimony shows that although Harrell claimed no sexual desire at the time of trial, he acknowledged that he had sexual desire as late as October 2015. There is no testimony that he lacked sexual desire at the time of the alleged sexual assaults.
Q Okay. So why then do you watch pornography?
A Well, I mean, I still look at pornography every now and then. . . . But not much anymore, now.
Q Okay. But you -- so you still have a sexual desire. Yes or no?
A Nope. No, not no more.
Q All right. When you gave your statement in October of 2015 -- you stated that you watched pornography in your bedroom.
A Yes.
Q Okay. So you were watching pornography in 2015. Is that fair?
A Sure.
Q Okay. So you -- your statements are a little bit conflicting. You'll say, "Yes, I watched pornography, but no, I don't have a sexual desire," so what is it?
A Now, back then, yes I did. I don't anymore.
Q Okay. That was October of 2015. That wasn't ten years ago.
A Right, but I still couldn't get no erection --
Q Okay.
A Whether I watched porno or not.
Q Okay. But you still had the desire to watch pornography is my question.
A Yes.
Based on this record, we find that Harrell did not open the door to the State's extraneous-offense testimony of S.B. Accordingly, we hold that the trial court erred in admitting the extraneous-offense evidence.
IV. The Trial Court's Error is Reversible
Admitting evidence in violation of a Rule of Evidence is considered nonconstitutional error. See Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Unless it affects substantial rights of the defendant, nonconstitutional error must be disregarded. TEX. R. APP. P. 44.2(b); Warr v. State, 418 S.W.3d 617, 621 (Tex. App.—Texarkana 2009, no pet.). We should not overturn a conviction for nonconstitutional error if, after examining the whole record, we have "fair assurance that the error did not influence the jury, or had but a slight effect." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
In assessing whether the jury's decision was adversely influenced 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, the character of the alleged error and how it might be considered in connection with other evidence in the case." Baxter v. State, 66 S.W.3d 494, 499 (Tex. App.—Austin 2001, pet. ref'd); Warr v. State, 418 S.W.3d 617, 621 (Tex. App.—Texarkana 2009, no pet.). We may also consider the jury instructions, the parties' theories, and closing arguments, if material to the appellant's claim. Baxter, 66 S.W.3d at 499; Warr, 418 S.W.3d at 621. Whether the State emphasized the erroneous evidence may also be a factor. Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002).
Generally, "[t]he admission of extraneous offenses also prejudices the defendant because of the jury's natural inclination to infer guilt to the charged offense from the extraneous offenses." Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994). In this case, F.H.'s testimony was the only evidence supporting the conviction. In his testimony, Harrell sought to cast doubt on several parts of F.H.'s testimony, including whether Harrell viewed pornography in the kitchen, whether F.H.'s grandmother was able to see into the living room from the kitchen, and F.H.'s failure to notice abnormalities in Harrell's physical appearance. The matter of Harrell's alleged impotency and diminished sexual desire arose from questions posed by the State.
The erroneous admission of S.B.'s testimony undermined much of Harrell's testimony. S.B. was the same age as F.H. when the alleged incidents involving Harrell occurred. Both S.B. and F.H. testified that the incidents took place while they were being babysat in Harrell's home, and both of the girls testified that Harrell showed them pornography on the computer that could be viewed from the kitchen. Although the jury could have viewed F.H.'s testimony as credible by itself, the similarities in S.B.'s testimony to that of F.H. likely played a significant role in Harrell's conviction. See Webb v. State, 36 S.W.3d 164, 183 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd) (en banc) (finding "substantial and injurious effect upon the jury's verdict" when extraneous evidence had striking similarity to complainant's testimony). Further, the State in its final closing argument emphasized S.B.'s testimony to argue that Harrell's sexual preference was for nine-year-old girls and that he wanted to assault children and to urge the jury to render a verdict which would stop him from assaulting children. The State's emphasis on erroneously admitted extraneous-offense evidence is significant in an appellate court's harm analysis. See Reese v. State, 33 S.W.3d 238, 244 (Tex. Crim. App. 2000) (by emphasizing erroneously admitted extraneous-offense evidence in its final argument, the State "sent the jury into deliberations thinking about" that evidence).
Based on this record, we have no fair assurance that the erroneous admission of the extraneous-offense testimony did not influence the jury, or had but a slight effect. We sustain Harrell's second point of error.
Since Harrell's second point of error is dispositive, we need not address his third point of error.
We reverse the judgment of the trial court and remand this cause to the trial court for a new trial.
Bailey C. Moseley
Justice Date Submitted: June 13, 2017
Date Decided: July 6, 2017 Do Not Publish