Opinion

Perry White Blakeney v. State

Court: Texas Court of Appeals, 3rd District (Austin)
Filed: Nov 15, 1995
Status: Published
Cited by: 0 cases
Authority: More cited than 35.7%

The opinion

Blakeney v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00078-CR

Perry White Blakeney, Appellant

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT

NO. 7395, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING

This is an appeal from a conviction for aggravated sexual assault of a child. See

Tex. Penal Code Ann. § 22.021 (West 1994). (1) A jury found appellant Perry White Blakeney

guilty of the charged offense and assessed punishment at 99 years' imprisonment and a fine of

$10,000. We will reverse the conviction and remand the cause to the trial court for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant lived next door to the seven-year-old victim and his parents. One

morning near the end of October 1992, the parents discovered that the child was missing. After

a search of the neighborhood, he was eventually found hiding under some weeds, partially

unclothed, with some of his clothes scattered on the ground. According to his mother, the child

was withdrawn and refused to talk. At some point, the child's disappearance was reported to the

police. Although he had already been found, on November 2, 1992, Officer Saldana of the Burnet

County Sheriff's Department began investigating the report of the missing child. At Officer

Saldana's request, the parents went to the sheriff's office to discuss the events surrounding the

child's disappearance. After thirty minutes of questioning by Officer Saldana and another thirty

minutes of questioning by a Department of Human Services case worker, the child still had not

revealed any information regarding the events of his absence. According to Officer Saldana,

during both interviews the child's demeanor was fine until he was asked about his disappearance.

Upon being asked about his disappearance, however, he became shy and withdrawn. No

allegation of sexual assault and no accusation that appellant had done anything wrong was made

during either interview.

Nonetheless, Officer Saldana and Deputy Hollingsworth visited appellant's house

later that day, because Officer Saldana had a "bad feeling" about the case. Before questioning

began, appellant was given Miranda warnings. When questioned about the child's disappearance,

appellant denied any knowledge of the incident. At some point during the interview, appellant

told the officers that he was bisexual/homosexual and had been to prison before. Appellant also

related that the child had once grabbed appellant's penis while he was cooking. On another day

the child had disrobed and jumped in a wheelbarrow full of water, whereupon appellant had told

him to get dressed and go home. Appellant also stated to the officers that it was "not his fault"

and that the child was being "forward." At some point, the officers asked appellant if he would

be willing to continue the interview at the Sheriff's Annex in Marble Falls. Appellant consented,

and the interview continued at that location. Deputy Hollingsworth observed that, during

questioning about the child's disappearance, appellant appeared to have an erection. Appellant

denied having an erection and refused to answer any further questions. Officer Saldana returned

appellant to his home. Immediately thereafter, Officer Saldana contacted the parents and asked

them to bring the child back to his office the next morning.

The next day, Officer Saldana's attempts to question the child about appellant

resulted in his crying and acting withdrawn. The child initially made no statements about

appellant, but during a break told his mother that appellant had "touched [the child] on his penis,

and [appellant] put his finger in [the child's] butt." Based on this information, appellant was

arrested.

DISCUSSION

Date of Offense

In his second point of error, appellant complains that there was insufficient

evidence to prove that the alleged offense occurred before presentment of the indictment. (2) The

State must prove that a charged offense occurred prior to the indictment. See Scoggan v. State ,

799 S.W.2d 679, 680 (Tex. Crim. App. 1990). The State is not bound to prove the exact date

of the commission of an alleged crime and may allege that a crime occurred "on or about" a given

date. See Thomas v. State , 753 S.W.2d 688, 693 (Tex. Crim. App. 1988). A conviction will be

sustained if the State proves that the offense was committed before, on, or after the date alleged,

so long as the date of the offense is before presentment of the indictment and the crime's

occurrence is not so remote as to be barred by limitations. See Scoggan , 799 S.W.2d at 680 n.3;

Gray v. State , 726 S.W.2d 640, 643 (Tex. App.Fort Worth 1987, no pet.).

The indictment, filed on December 15, 1992, alleged that the offense occurred "on

or about the 24th day of October, 1992." At trial, none of the State's witnesses could pinpoint

with certainty the exact date of the offense. However, all the testimony presented indicates that

the offense occurred around the end of October or beginning of November 1992, well before

presentment of the indictment. The victim's mother testified that the child's first outcry statement

occurred on November 3, 1992. At that time, the child related to her the events of past

occurrences of sexual assault at the hands of appellant. The victim's father testified that the

child's absence for several hours one morning occurred in mid to late October. Although the

child's own testimony is not precise as to when the sexual assault occurred, it does indicate that

it took place around the time that he was missing. Officer Saldana testified that the parents

reported the child's absence on October 19, 1992, and that he began investigating the case a few

days before November 2, 1992. We conclude that the record contains sufficient evidence for the

trier of fact to find beyond a reasonable doubt that the charged offense occurred before

presentment of the indictment. We overrule appellant's second point of error.

Extraneous Crimes, Wrongs, or Acts

In his first point of error, appellant complains that the trial court erred in allowing

the State to introduce in its case-in-chief evidence of alleged extraneous crimes, wrongs, or acts

committed by appellant. Specifically, appellant complains of the admission of statements he made

to investigating officers before his arrest that (1) he was bisexual/homosexual; (2) he had been in

prison before; (3) one day the child had grabbed appellant's penis while he was cooking; (4)

another day the child had disrobed and jumped in a wheelbarrow in front of appellant, and he had

told the child to go home; and (5) the child was at fault because he was being forward. Appellant

also complains of the investigating officer's testimony that appellant appeared to have an erection

during questioning about the child's disappearance. Having properly objected at trial, appellant

argues that all of the foregoing evidence should have been excluded by the trial court because it

was irrelevant (Tex. R. Crim. Evid. 401, 402), because it constituted impermissible character

evidence (Tex. R. Crim. Evid. 404(b)), and because its probative value was substantially

outweighed by the danger of unfair prejudice (Tex. R. Crim. Evid. 403). (3)

The trial court has discretion to exclude or admit evidence. Montgomery v. State ,

810 S.W.2d 372, 379 (Tex. Crim. App. 1990). An appellate court should not set aside the trial

court's rulings absent a showing in the record that the trial court abused its discretion. Id.

(a) Relevance.

The Texas Rules of Criminal Evidence favor the admission of all logically relevant

evidence. Id. at 375 ; Tex. R. Crim. Evid. 402. If evidence has any tendency to make the

existence of any fact of consequence to the determination of the action more or less probable, it

is relevant. Montgomery , 810 S.W. 2d at 387 ; Tex. R. Crim. Evid. 401. Establishing the

relevancy of an extraneous act is only the first step, however, in the trial court's determination

of whether the evidence should be admitted. Rogers v. State , 853 S.W.2d 29, 32 (Tex. Crim.

App. 1993) (opinion on reh'g); Montgomery , 810 S.W.2d at 375 ; Tex. R. Crim. Evid. 401.

Relevancy is not an inherent characteristic, but arises from the relation of the evidence to a matter

properly provable in the case. Montgomery , 810 S.W.2d at 375 . If evidence tends to make an

elemental fact more or less probable, or if it inferentially supports or challenges an elemental fact,

it is relevant. Id. at 387 ; Tex. R. Crim. Evid. 401. Because reasonable persons may differ when

determining whether a particular inference arises from a piece of evidence, we will not disturb

the trial court's ruling as long as it is within the "zone of reasonable disagreement." Rogers , 853

S.W.2d at 32 ; Montgomery , 810 S.W.2d at 391 . If logically relevant, the evidence will be

admissible unless the opponent demonstrates that it should be excluded because of some other

constitutional, statutory, or evidentiary provision, such as Rule 404. Montgomery , 810 S.W.2d

at 391 .

The State argues that because the sexual assault victim was male, evidence of

appellant's bisexuality/homosexuality is relevant to show appellant's propensity to seek out a male

child as a sexual partner. The evidence that appellant is at times attracted to males could arguably

make it more probable that appellant would be inclined to sexually assault a male child rather than

a female child . It does not necessarily follow, however, that because appellant is attracted to adult

males he also seeks out male children as objects of his sexual desire. Because the sex of the child

victim in the present case is consistent with appellant's sexual preference, however, we will

assume without deciding that reasonable persons could differ when determining whether to accept

an inference that a bisexual/homosexual is likely to seek out same-sex child partners. Based on

that assumption, we will not disturb the trial court's ruling that this evidence had sufficient

relevance to withstand a Rule 401 objection.

Appellant's statements that the child had grabbed appellant's penis, had disrobed

and jumped in a wheelbarrow, and was being forward and was at fault, in addition to the officer's

testimony regarding appellant's erection while being questioned about the child victim, all either

inferentially support or challenge an elemental fact. These pieces of evidence all relate to

appellant's past relationship with or possible attraction to the specific victim in the present case.

Inferences can be drawn from these statements and events that appellant may--or may not--have

committed the charged offense. We conclude the trial court did not abuse its discretion in ruling

that these pieces of evidence were relevant.

The State offers no argument, however, to show why evidence that appellant had

previously been in prison was relevant in proving appellant committed the offense of aggravated

sexual assault of a child. The mere fact that appellant has a prior criminal record does not make

it more or less likely that he committed the charged offense. An accused is entitled to be tried on

the accusations made in the State's pleadings and should not be tried on past criminal behavior.

See Wilkerson v. State , 736 S.W.2d 656, 659 (Tex. Crim. App. 1987). Introduction of this

evidence served only to deem appellant a criminal generally. Accordingly, we conclude that the

trial court abused its discretion in admitting evidence that appellant had been in prison.

(b) Character Evidence.

Having determined the relevancy of the challenged pieces of evidence, we now

examine whether the proffered relevant evidence was inadmissible because it was impermissible

character evidence or whether it fell within an exception to Rule 404. Rule 404 generally

prohibits the use of character evidence to prove commission of the charged offense. Tex. R.

Crim. Evid. 404(a). Thus, although relevant, "[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show that he acted in conformity

therewith." Tex. R. Crim. Evid. 404 (b); see also Bishop v. State , 869 S.W.2d 342 (Tex. Crim.

App. 1993). However, evidence of other crimes, wrongs, or acts may be admitted if such

evidence has relevance apart from the tendency to prove the character of the accused.

Montgomery , 810 S.W.2d at 387 . Only those purposes other than propensity, such as those listed

in Rule 404(b), will justify otherwise inadmissible character evidence. Id. For example, Rule

404 states that evidence of other crimes, wrongs, or acts may be admissible to prove "motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Tex. R. Crim. Evid. 404 (b). In addition to these listed exceptions, evidence of the context or

background in which events transpired that are helpful for the jury to understand a particular

transaction may be admissible. The relevant context consists of actions and statements made

either at the time of the offense or during arrest. See Rogers , 853 S.W.2d at 33 n.6.

There are two forms of background evidence, formerly referred to as "res gestae":

(1) "same transaction contextual evidence," which refers to other offenses connected with the

primary offense; (4) and (2) "background contextual evidence" which includes all other general

background evidence. Mayes v. State , 816 S.W.2d 79, 86 (Tex. Crim. App. 1991). Same-transaction contextual evidence is admissible as an exception to Rule 404(b) when the evidence

is necessary for the state to logically present evidence of the charged offense. Id. at 86 n.4.

Thus, "[o]nly if the facts and circumstances of the instant offense would make little or no sense

without also bringing in the same transaction contextual evidence, should the same transaction

contextual evidence be admitted." Rogers , 853 S.W.2d at 33 . As a result, evidence of extraneous

offenses may, where appropriate, be admissible as same-transaction contextual evidence.

Lockhart v. State , 847 S.W.2d 568, 570 (Tex. Crim. App. 1992), cert. denied , U.S. , 114

S. Ct. 146 (1993). The trial-court decision whether same-transaction evidence is admissible will

not be disturbed on appeal absent an abuse of discretion. See Blackwell v. State , 818 S.W.2d 134,

137 (Tex. App.Waco 1991, pet. ref'd). Background contextual evidence, used to provide flavor

to a case and often admitted simply because no one objects to its admission, is not admissible

under Rule 404(b) when it includes an impermissible character component. Mayes , 816 S.W.2d

at 88 .

In the present case, the State argues that all the challenged evidence was res gestae

or background evidence and, therefore, was admissible as an exception under Rule 404(b). The

State essentially argues that because the statements made to the investigating officer were

voluntary and made while the officers were investigating the present offense, they are therefore

same-transaction contextual evidence. Following the State's argument to its logical end, anything

related to bad character would be admissible if uncovered in a police investigation. We reject this

contention. The statements here were not made either during the commission of the offense or

during the arrest. Appellant's pre-arrest statements were not so intermixed with the facts of the

commission of the offense that the State needed to use this evidence for the jury to understand the

facts surrounding the offense. The relevant events in the case can be adequately explained without

evidence of appellant's bisexuality/homosexuality to render a complete and whole picture for the

jury. Appellant's admission of his sexual preference is, therefore, background contextual

evidence. Moreover, introduction of this evidence, in the present case, could only serve to send

to the jury the message that all homosexual men are also molesters of little boys. Such an

inference, unsupported by evidence or logic, is an improper basis for introducing evidence of

appellant's sexual preference. Because the evidence has an impermissible character component,

we conclude that the trial court abused its discretion in admitting evidence of appellant's sexual

preference.

We will also assume without deciding that the investigating officer's testimony that

appellant appeared to have an erection while being questioned about the victim is not same-transaction contextual evidence, but instead is general background contextual evidence. However,

evidence that appellant was sexually aroused while talking about the child could be viewed as

giving rise to a logical inference that appellant had feelings of sexual attraction and desire toward

him. Such evidence would, therefore, tend to show that appellant had a motive for sexually

assaulting the child:

The sexual passion or desire of X for Y is relevant to show the probability

that X did an act realizing that desire. On the principle set out above, this desire

at the time in question may be evidenced by proof of its existence at a prior or

subsequent time. Its existence at such other time may, of course, be shown by any

conduct which is the natural expression of such desire.

Brown v. State , 657 S.W.2d 117, 118 (Tex. Crim. App. 1983) (quoting McCormick & Ray,

Texas Law of Evidence 236-37 (3rd ed. 1980)). Thus, the challenged evidence had relevance apart

from character conformity. See Tex. R. Crim. Evid. 404(b). At the very least, we think such

a conclusion would be within the zone of reasonable disagreement. See Montgomery , 810 S.W.2d

at 390-91 . We hold that the trial court did not abuse its discretion in admitting this evidence over

appellant's Rule 404(b) objection.

Appellant's statements that the child had grabbed appellant's penis, had disrobed

and jumped in a wheelbarrow, and was at fault because he was being forward are not same-transaction contextual evidence because they are not indivisibly connected with the charged

offense. Assuming they relate to bad acts by appellant at all, the statements are merely examples

of admissible background contextual evidence because they fill in gaps in the overall context of

the casethe relationship between the accused and the victimand thus do not introduce an

impermissible character element. We conclude that the trial court did not abuse its discretion in

admitting this evidence.

Having determined already that evidence of appellant's past imprisonment and

sexual preference were improperly admitted under Rule 401 and Rule 404(b), respectively, we

will now consider if the remaining challenged evidence can withstand a Rule 403 analysis. Rule

403 provides:

Although relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.

Tex. R. Crim. Evid. 403. In one sense, almost every piece of evidence introduced at trial can be

said to be prejudicial to one side or the other. Consequently, only evidence that is unfairly

prejudicial is excluded. Evidence is unfairly prejudicial when its prejudicial nature substantially

outweighs its probative value. In balancing whether the prejudicial effect substantially outweighs

the probative value of evidence, the presumption is that the probativeness will outweigh any

prejudicial effect. Montgomery , 810 S.W.2d at 389 . So long as the trial court operates within

the boundaries of its discretion, its decision will not be disturbed on appeal. McFarland v. State ,

845 S.W.2d 824, 837 (Tex. Crim. App. 1992), cert. denied , U.S. , 113 S. Ct. 2937 (1993).

As stated above, the investigating officer's testimony that appellant appeared to

have an erection while being questioned about the child victim is probative because it raises a

reasonable inference that appellant had feelings of sexual desire toward the child. The only

unfairness in admitting such evidence is the always-present possibility that the inference of sexual

desire toward the child might be incorrect, e.g., appellant's erection might have resulted from

something other than sexual desire for the child, or the officer might have been mistaken about

appellant's having an erection at all. The mere fact of having an erection, however, is not so

inherently prejudicial as to interfere with the jury's logical task of choosing to accept or reject an

asserted inference, or choosing between two or more competing inferences. Nor do we think the

logical nexus between the evidence and the asserted inference is too weak to be deemed

"reasonable." We conclude the trial court did not abuse its discretion in admitting this testimony,

because the danger of unfair prejudice did not substantially outweigh its probative value.

Appellant's statements about the child's grabbing appellant's penis, disrobing and

jumping in a wheelbarrow, and being at fault because he was being forward are essentially

exculpatory statements. The probative value of the first statement is that it implies that appellant

may have had prior sexual contact with the victim. As a result, the prejudicial effect is that the

jury could have concluded from this statement that appellant was guilty of the charged offense.

However, another inference is that appellant was trying to explain that the child's actions of

grabbing appellant's penis and disrobing were not attributable to appellant. The probative value

of the second and third statements is to show that on at least one occasion when appellant could

have assaulted the child, he instead sent the child home. Yet another possible inference to be

drawn from the evidence is that these earlier events, such as when the child disrobed or grabbed

appellant's penis, led appellant to desire sexual contact with the victim. Consequently, the

evidence may be either advantageous or prejudicial to the State and appellant, depending on the

inferences drawn therefrom. We conclude that the statements are not unfairly prejudicial, because

they do not suggest an opinion on an improper basis, confuse issues, or mislead the jury. We

hold that the trial court did not abuse its discretion in admitting these statements, because their

prejudicial effect does not substantially outweigh their probative value. (5)

(d) Harmfulness

We have held that the trial court improperly admitted evidence that appellant was

bisexual/homosexual and had previously been in prison. Where the record reveals error in the

proceedings below, the appellate court must reverse the conviction under review unless the

appellate court determines beyond a reasonable doubt that the evidence made no contribution to

the conviction or to the punishment. Tex. R. App. P. 81(b)(2). In determining whether error is

harmless under Rule 81(b)(2), we are to focus not on the propriety of the outcome of the case, but

instead on the integrity of the process leading to the conviction. Harris v. State , 790 S.W.2d 568,

587 (Tex. Crim. App. 1989); Tex. R. App. P. 81(b)(2)). Factors that should be considered

include: (1) the source of the error; (2) the nature of the error; (3) whether or to what extent it

was emphasized by the State; (4) the error's probable collateral implications; (5) how much weight

a juror would probably place on the error; and (6) whether declaring the error harmless would

encourage the State to repeat it with impunity. Harris , 790 S.W.2d at 587 .

Procedurally, we must first isolate the error and all its effects, using the

considerations set out above and any other considerations suggested by the facts of the cause;

second, we must ask whether a rational trier of fact might have reached a different result if the

error and its effects had not occurred. Id. at 587-88 . We do not focus on the weight of the other

evidence of appellant's guilt, but instead focus on whether the error might possibly have

prejudiced the jurors' decision-making. In other words, our responsibility is to determine whether

the trial was an essentially fair one. Id.

The State was the source of the error here, and the nature of the error was the

admission of, on the one hand, irrelevant evidence and, on the other hand, inadmissible character-conformity evidence. The State drew the jurors' attention to the inadmissible evidence by

presenting it through the State's first witness, Officer Saldana. Turning to the probable collateral

implications of the inadmissible evidence and the weight the jurors would probably place on it,

we think the inadmissible evidence may have carried substantial weight in the jury's decision to

convict. From the very beginning of the trial, the inadmissible evidence labeled appellant a

criminal and, perhaps in some jurors' minds, a sexual deviate. Thus, all subsequent evidence was

viewed through a lens already obscured by references to appellant's prison history and

unconventional sexual preference. Placed in the context of a trial for aggravated sexual assault

of a child, such evidence was calculated to weigh heavily on the minds of the jurors.

Finally, we conclude that declaring the error in question harmless would encourage

the State to repeat it. Evidence of sexual preference and a prior prison record can easily cast a

negative light on an accused, so that a weak case looks much stronger in the eyes of a jury. We

cannot conclude beyond a reasonable doubt that the erroneous introduction of the evidence of

appellant's sexual preference and past prison record made no contribution to his conviction or

punishment. Appellant's first point of error is sustained.

CONCLUSION

In light of the foregoing disposition, points of error three through eight need not

be addressed. We reverse the conviction and remand the cause to the trial court for a new trial.

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and B. A. Smith

Reversed and Remanded

Filed: November 15, 1995

Publish

1. This offense occurred before September 1, 1994, and is governed by the law in effect

at the time the offense was committed. Penal Code, 73rd Leg., R.S., ch. 900, § 1.18,

1993 Tex. Gen. Laws 3586 , 3705. Because the code amendments effective September 1,

1994, have no substantive effect on this offense, the current code is cited for the sake of

convenience.

2. Though appellant does not designate it as such, this point of error is, for all intents

and purposes, a legal-sufficiency challenge. The critical inquiry on review of the legal

sufficiency of the evidence to support a criminal conviction is whether the record evidence

could reasonably support a finding of guilt beyond a reasonable doubt. Thus, the

relevant question in this case is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found beyond a

reasonable doubt that the commission of the alleged crime occurred prior to presentment

of the indictment. See Jackson v. Virginia , 443 U.S. 307, 318-19 (1979); Griffin v. State ,

614 S.W.2d 155, 159 (Tex. Crim. App. 1981).

3. Appellant makes a vague reference in his brief to article 38.22. Tex. Code Crim. P.

Ann. art. 38.22, § 3 (West 1979). Article 38.22 provides that an oral statement of an

accused that is made as a result of a custodial interrogation is admissible against the

accused for the purpose of impeachment only when an electronic recording is made of the

statement and certain authentication requirements are satisfied. Id. We do not believe

that this issue is properly part of appellant's point of error. If it is, however, we conclude that

appellant was not under custodial interrogation at the time he made the oral statements to the

investigating officers because he was told he was not under arrest and he exercised his

freedom to leave after being questioned. Therefore, Article 38.22 is inapplicable to the

present case.

4. The secondary crimes, offenses, or wrongs and the primary offense must be so

"intermixed, or blended with one another, or connected so that they form an indivisible

criminal transaction, and full proof by testimony, whether direct or circumstantial, of

any one of them cannot be given without showing the others." Mayes v. State , 816 S.W.2d

79 , 86-87 n.4 (Tex. Crim. App. 1991) (quoting Nichols v. State , 260 S.W. 1050, 1051 (Tex.

Crim. App. 1924)).

5. We have already concluded that evidence of appellant's bisexuality/homosexuality

was inadmissible character evidence. However, even if that evidence did not violate Rule

404, we would hold that it violated Rule 403. The State urges us to follow Slayton v.

State , 633 S.W.2d 934 (Tex. App.Fort Worth 1982, no pet.), where the accused was

convicted of indecency with a child. The Fort Worth Court of Appeals concluded that the

probative weight of evidence of the defendant's homosexuality outweighed any inflammatory

or prejudicial aspects it may have had and held that the admission of such evidence was not

error. Id. at 938 . We decline to follow Slayton and rely instead on the Court of Criminal

Appeal's decision in Bishop v. State , 869 S.W.2d 342 (Tex. Crim. App. 1993), in which the

court stated:

We have long considered evidence of sexually related misconduct to be inherently

inflammatory. Although the evidence in question pertained to practices which are

not legally defined as either criminal offenses or misconduct, such practices are

considered improper, immoral, and highly offensive by segments of the

population and hence testimony linking Appellant to such conduct could have

unduly prejudiced some of the jurors against the Appellant.

Id. at 346 (citation omitted).

The only possible probative value of appellant's sexual preference would be to suggest

that appellant is inclined to choose males as sexual partners and, therefore, may have chosen

the male child victim in this case as a sexual partner. As previously discussed in the text,

however, this is a highly suspect proposition, unsupported by any evidence. Were it necessary

to our decision, therefore, we would conclude that the prejudicial effect of introducing

evidence of appellant's sexual preference substantially outweighed any probative value, and

that the trial court abused its discretion in admitting this evidence.

">1. This offense occurred before September 1, 1994, and is governed by the law in effect