Gary Wayne Wilson v. the State of Texas

Opinion issued January 9, 2024

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-22-00361-CR

———————————

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

MEMORANDUM OPINION

A jury found appellant, Gary Wayne Wilson, guilty of the felony offense of

aggravated sexual assault of a child1 and assessed his punishment at confinement for

1

See TEX. PENAL CODE ANN. § 22.021(a)(1)(B), (a)(2)(B), (e).

forty years and a fine of $10,000. In two issues, appellant contends that the trial

court erred in admitting certain evidence.

We modify the trial court’s judgment and affirm as modified.

Background

This is not our first appeal involving appellant.2 In August 2006, a Harris

County Grand Jury returned a true bill of indictment alleging that appellant, on or

about October 1, 2005, “unlawfully, intentionally and knowingly cause[d] the anus

of [K.M., the complainant], a person younger than fourteen years of age and not the

spouse of [appellant], to contact the sexual organ of [appellant].” (Emphasis

omitted.)

At trial in December 2012, both the complainant and B.M., the complainant’s

sister, testified about appellant’s behavior and the sexual assaults committed by

appellant.3 A jury found appellant guilty of the felony offense of aggravated sexual

assault of a child and assessed his punishment at confinement for life.4 Appellant

2

See Wilson v. State, 451 S.W.3d 880 (Tex. App.—Houston [1st Dist.] 2014, pet.

ref’d).

3

Id. at 883–84 (explaining complainant “testified at length and in detail about the

sexual assaults to which . . . [a]ppellant subject[ed] him” and “that [a]ppellant

sexually assaulted him two to five times every month” for years; complainant’s

sister testified that “she once saw [a]ppellant sexually assaulting [complainant] by

penetrating [his] anus with [a]ppellant’s penis” and that “[a]ppellant would

regularly walk around the house naked, would have sex with [complainant’s]

mother in front of the children, and would leave pornographic magazines lying

around the house”).

4

Id. at 883.

2

appealed, asserting that the trial court erred in excluding certain evidence “of his

good character for moral and safe conduct around young children” during the guilt

phase of trial.5 We agreed, reversed the judgment of the trial court, and remanded

the case for a new trial.6

Following remand, a new trial commenced. Before the admission of any

evidence, the trial court held a hearing, outside the presence of the jury, to determine

whether to admit into evidence the testimony of the complainant and the

complainant’s sister from appellant’s first trial because they were now

“unavailable.”7 During the hearing, the trial court admitted into evidence several

stipulations of evidence. In the first stipulation of evidence, appellant stipulated:

If [the complainant] were to appear before the presiding judge of the

209th District Court, he would testify that he refuses to testify in The

State of Texas v. Gary Wayne Wilson, [c]ause number 1068173, or any

related matters. [And] even after [the] . . . presiding judge of the 209th

District Court[] would order [the complainant] to testify, he would still

state that he refuses to testify.

Additionally, . . . if asked about whether he could testify at a later date,

[the complainant] would respond that he will refuse to testify at the trial

scheduled for April 28[], 2022 and would refuse to testify at a future

trial date as well.

In the second stipulation of evidence, appellant stipulated:

5

See id.

6

See id. at 883–89.

7

See TEX. R. EVID. 804(a), (b)(1)(B) (“Exceptions to the Rule Against Hearsay—

When the Declarant is Unavailable as a Witness”).

3

If [the complainant’s sister] were to appear before the presiding judge

of the 209th District Court, she would testify that she refuses to testify

in The State of Texas v. Gary Wayne Wilson, [c]ause number 1068173,

or any related matters. [And] even after [the] . . . presiding judge of the

209th District Court[] would order [the complainant’s sister] to testify,

she would still state that she refuses to testify.

Additionally, . . . if asked about whether she could testify at a later date,

[the complainant’s sister] would respond that she will refuse to testify

at the trial scheduled for April 28[], 2022 and would refuse to testify at

a future trial date as well.

In the third stipulation of evidence, appellant stipulated:

I am the same Gary Wayne Wilson who was the defendant in the trial

for the offense of Aggravated Sexual Assault of a Child in cause

number 1068173 in the 209th District Court of Harris County, Texas in

December 2012. I am the same Gary Wayne Wilson who was identified

on the record by [the complainant] on or about December 6, 2012 and

by [the complainant’s sister] on or about December 7, 2012.

Additionally, at the hearing, the complainant’s father testified that he was the

father of the complainant and of the complainant’s sister, and both the complainant

and the complainant’s sister testified at the first trial. The complainant’s father

recounted that after the complainant’s sister testified in the first trial, she was a

“wreck” and “scared.”

According to the complainant’s father, when the complainant’s sister learned

that there would be a retrial in appellant’s case, she called him crying and was “very

upset.” The complainant’s sister “froze up on the phone” and “couldn’t talk.” The

complainant’s sister told the complainant’s father that she would “rather be dead”

than see appellant again. The complainant’s father believed her. Although he tried

4

to talk to her several times about testifying at appellant’s retrial, the complainant’s

sister did not change her mind, and he did not think that she would ever change her

mind. The complainant’s sister knew that the trial court had ordered her to testify,

and she could be held in contempt, but she still refused to testify at appellant’s retrial.

It was the complainant’s father’s opinion that testifying at appellant’s retrial would

be detrimental to the complainant’s sister’s health.

The complainant’s father also noted that the complainant’s sister had never

recanted her testimony from the first trial or said that the events she testified to

“didn’t happen.”

Paul Fortenberry, a Harris County assistant district attorney, testified that he

was one of the lead prosecutors in appellant’s first trial in December 2012. The

complainant’s sister was apprehensive about “talking about what had happened” and

about testifying at the first trial. In a meeting with the complainant’s sister before

the first trial, the complainant’s sister crawled under a conference table to avoid

making eye contact and talking about what had happened to her and to the

complainant. Eventually, the complainant’s sister opened up about what had

happened to her and what she had witnessed happening to the complainant. Before

appellant’s first trial, Fortenberry told the complainant’s sister about the importance

of telling the truth while testifying.

5

As to the first trial, Fortenberry explained that there was no way to know why

appellant’s then-counsel chose to not cross-examine the complainant during the guilt

phase of trial, but counsel was given the opportunity to do so. According to

Fortenberry, during appellant’s first trial, the complainant was “made available” for

cross-examination by appellant’s then-counsel.

As to appellant’s retrial, Fortenberry testified that the complainant’s sister told

him that she was refusing to testify at the retrial. Fortenberry noted that the

complainant’s sister had never recanted her previous testimony or said that the

“events did not happen to her or she did not witness what happened to [the

complainant].”

Norma Juenke, a paralegal with the Harris County District Attorney’s Office,

testified that she assisted the prosecutors in appellant’s first trial. Juenke noted that

it was difficult in 2012 for the complainant to talk about what had happened to him,

and it took months of meetings with him before the complainant disclosed any

details. The complainant identified appellant as “the person that did . . . things to

him.” When the complainant testified at the first trial, he appeared very sad and kept

his head down. Testifying was “difficult for him.” The complainant swore to tell

the truth before he testified at the first trial. During the first trial, appellant’s

then-counsel was given an opportunity to ask the complainant questions on

6

cross-examination, but appellant’s counsel did not ask the complainant any

questions.

Juenke further testified that she had kept in contact with the complainant since

appellant’s first trial and spoke to him “[e]very three to four days.” After the first

trial, the complainant was not okay. He appeared to be suffering from a trauma.

As to appellant’s retrial, Juenke explained that she reached out to the

complainant about testifying at the retrial, but he refused to do so. He was very upset

and angry about the idea. After the complainant was served with a subpoena to

testify at appellant’s retrial, he began having nightmares and shut down. Although

the complainant agreed to meet with Juenke and others about the retrial, at the

meeting, the complainant said he would not come to court and testify. Also, during

the meeting, the complainant froze and “stared into space” for about fifteen minutes

when shown a diagram of the home where the sexual assaults had occurred.

According to Juenke, the complainant refused to testify at the retrial because he did

not what to “relive any trauma.”8

At the conclusion of the hearing, the State argued that the trial court should

admit into evidence the testimony of the complainant and the complainant’s sister

from the first trial because the complainant and the complainant’s sister were

8

Additional witnesses testified at the unavailability hearing and additional exhibits

were admitted into evidence.

7

unavailable to testify at the retrial and they were subject to cross-examination at the

first trial. Thus, under Texas Rule of Evidence 804, the testimony of the complainant

and the complainant’s sister from the first trial was admissible at appellant’s retrial.

In response, appellant asserted that the admission of the former testimony of

the complainant and the complainant’s sister at the retrial constituted a violation of

appellant’s “Sixth Amendment right to cross-examination and confrontation.”

Appellant also asserted that “it was a different trial, different set of circumstances,”

and “[t]here was no cross-examination” of the complainant at the first trial. Thus,

appellant requested that the trial court exclude the former testimony of the

complainant and the complainant’s sister from the retrial.

The trial court concluded that the complainant and the complainant’s sister

were unavailable to testify at appellant’s retrial and appellant had the opportunity

and similar motive to cross-examine the complainant and the complainant’s sister at

the first trial. Thus, the trial court ruled that the former testimony of the complainant

and the complainant’s sister was admissible at the retrial.

The trial court made findings of fact and conclusions of law, which included

the following conclusions:

• The State . . . has demonstrated that the witnesses are

unavailable as a matter of law. Both [the complainant] and [the

complainant’s sister] are ruled unavailable as . . . witnesses as

they have “refused to testify about the subject matter despite a

court order to do so and cannot be present or testify at the trial or

8

hearing because of . . . []then existing infirmity, physical illness,

or mental illness” as defined by Texas Rule of Evidence 804.

• The second prong of [Texas Rule of Evidence] 804(b) requires

that the defendant had an opportunity and similar motive to

develop the testimony . . . . There is nothing presented to this

Court that would suggest or lead to the conclusion the

opportunity did not exist nor that the motive to develop the

testimony was not the same in the first trial as it is for

the . . . [re]trial.

• This Court finds the State has demonstrated and proved that the

witnesses [are] unavailable as defined by the Texas Rules of

Evidence and that the testimony offered by the State, was given

as a witness at a trial, and is now offered against a party who had

an opportunity and similar motive to develop it by direct, cross-,

or redirect examination.

(Emphasis omitted.)

During the guilt phase of appellant’s retrial, the complainant’s testimony from

the first trial was read into evidence during the State’s case in chief.9 In his former

testimony, the complainant testified that he was fifteen years old and his sister was

seventeen years old. The complainant stated that he knew the difference between a

truth and a lie.

The complainant further testified that after his parents separated when he was

younger, the complainant lived in a house in Harris County, Texas with his mother,

9

See Kennedy v. State, No. 12-11-00041-CR, 2012 WL 3201924, at *5 (Tex. App.—

Tyler Aug. 8, 2012, pet. ref’d) (mem. op., not designated for publication) (“Reading

the prior testimony into the record is an appropriate method of introducing prior

testimony.”).

9

his two brothers, and his sister. At some point, when the complainant was in

kindergarten or first grade, the complainant’s mother started dating appellant.

According to the complainant, after appellant moved into the complainant’s

home, appellant and the complainant’s mother shared a room, the complainant

shared a room with his younger brother, and the complainant’s sister and the

complainant’s older brother each had their own rooms. The complainant’s mother

started heavily drinking alcohol after appellant moved into the home.

At first, appellant was nice to the complainant, but that changed. After

appellant moved into the complainant’s home, appellant started hitting the

complainant in his chest, stomach, and face. The complainant believed he was

around seven years old when the hitting began. Appellant would slap him with an

open hand and punch him with a closed fist. Appellant would also hit the

complainant with the metal part of a leather belt and with a paddle. Appellant would

hit him for no reason. Appellant left marks on the complainant’s body. The

complainant tried to cover up the marks with long sleeved shirts because he was

embarrassed. The complainant did not tell anyone about the physical assaults

because appellant told the complainant that he would kill the complainant’s father if

he told, and the complainant believed appellant.10

10

The complainant recalled one specific time when appellant physically assaulted

him. The complaint was home alone with appellant and in the living room when

appellant walked in and told him to “come here.” The complainant got up and

10

The complainant further testified that appellant also sexually assaulted him

multiple times.11 The first time that appellant sexually assaulted the complainant

was after school when the complainant was at home alone with appellant. According

to the complainant, he was in his bedroom playing a video game and appellant came

into the room mad. Appellant grabbed the complainant by the shirt and tried to lift

him up. The complainant’s shirt ripped. Appellant then picked the complainant up

by the arms and laid him on the bottom bunk of the bunkbed in the room. The

complainant struggled to get away from appellant. Appellant pulled off the

complainant’s shorts and underwear. Appellant took off his jeans and his underwear

and pulled the complainant toward him. Appellant stuck his penis in the

complainant’s anus. It was painful, and the complainant cried. When appellant’s

cellular telephone rang, he stopped and answered the phone. Appellant put on his

clothes and left the bedroom. The complainant stayed in his room until his mother,

walked with appellant to the complainant’s sister’s bedroom. Appellant picked the

complainant up and put him on the top bunk of the bunk bed. Appellant then

grabbed a metal clothes hanger and pulled the complainant off the top bunk. The

complainant hit the side of the door on the way down, and appellant started hitting

the complainant with the metal clothes hanger. He hit the complainant on the arm,

chest, and hand. Appellant grabbed the complainant’s shirt to pull him up, and then

he started punching the complainant in the chest. Appellant next pulled off his belt

and started hitting the complainant with the belt. Appellant was mad, and the

complainant believed he was being punished. When appellant stopped, he left the

room.

11

The complainant testified that appellant sexually assaulted him while he was in

elementary school, and he believed he was about seven years old when it occurred.

11

sister, and brother came home. The complainant hid his ripped shirt so that no one

would see it. The complainant did not tell anyone about what had happened because

he “didn’t know how to explain it” and “didn’t know the purpose of any of it.”

Another time, the complainant was taking a shower before school. Appellant

came into the bathroom and pulled the shower curtain back. Appellant was not

wearing any clothes. Appellant stepped into the shower with the complainant ,which

had never happened before. Appellant grabbed the complainant on the top of his

shoulders and pushed him down toward the floor. The complainant slipped and fell

to his knees. Appellant then grabbed his penis with his hand and tried to put it in the

complainant’s mouth. The complainant tried to turn away, but appellant told him to

“[o]pen [his] mouth, . . . it’s easy.” The complainant complied, and appellant put

his penis in the complainant’s mouth. This continued until appellant heard the

complainant’s mother wake up. Appellant told the complainant to “hurry up and get

out of the shower.” The complainant dried off and went to his room to get dressed.

The complainant did not tell anyone about what had happened because he “didn’t

know what to think.”

The complainant also testified that appellant had sexually assaulted him in the

living room of the home when he and appellant were home alone. The complainant

was in the living room playing a video game, and appellant came into the room and

turned off the complainant’s game. Appellant was wearing a shirt and underwear.

12

He grabbed the complainant, pushed him back into the couch, and pulled off the

complainant’s underwear. Appellant then stood behind the complainant and put his

penis in the complainant’s anus. After appellant was done, the complainant sat on

the floor. He was too afraid to leave because he “didn’t want anything to happen to

[him] again.”

Additionally, according to the complainant, on another day, the complainant

was in his room putting some clothes on. He put on underwear, shorts, and socks

and walked out of his bedroom. Appellant then came out of the bedroom he shared

with the complainant’s mother, “scooped [the complainant] up,” and kind of threw

the complainant over his shoulder. Appellant took him into the complainant’s older

brother’s room and put him on the bed. Appellant took off his shorts and took off

the complainant’s shorts and underwear. Appellant tried to put his penis in the

complainant’s anus, but the complainant struggled and tried to get away. Eventually,

appellant succeeded and put his penis in the complainant’s anus. The complainant

cried. Appellant stopped when the complainant’s mother came out of her bedroom.

Appellant told the complainant to put his clothes on, and the complainant went back

to his bedroom and lay on his bed crying. When his mother found him, he did not

tell her why he was crying because he “couldn’t explain about it” and he “didn’t

know if what happened was right or wrong.”

13

And the complainant testified about another incident, in which appellant

physically and sexually assaulted him using duct tape.12 The complainant was in his

bedroom and appellant duct taped the complainant’s hands to the bedframe so that

the complainant could not “pull them out.” Appellant took his shorts off and pulled

off the complainant’s jeans. Appellant pulled the complainant’s body toward him

and put his penis in the complainant’s anus. The complainant cried and “tr[ied] to

figure out when it was going to be over or why it was happening.” When appellant

stopped, he used a box cutter to remove the duct tape. The tape left red marks on

the complainant’s arm.

The complainant explained that the specific instances that he described in his

testimony were not the only times that appellant sexually assaulted him. Appellant

sexually assaulted the complainant at least two to five times a month. The

complainant also noted that appellant had sexual intercourse with the complainant’s

mother in front of the complainant on multiple occasions. And appellant would

leave magazines with “naked pictures” around the house and walk around the house

naked.

12

The complainant also testified that appellant used duct tape on another occasion

when appellant physically assaulted him. Appellant taped the complainant’s hands

behind his back and taped his legs and ankles. He then kicked and hit the

complainant while the complainant was duct-taped. When appellant cut the duct

tape off, the complainant had imprints from the tape on his hands.

14

On rebuttal, the complainant’s sister’s testimony from guilt phase of the first

trial was read into evidence. In her former testimony, the complainant’s sister

testified that she was in the eleventh grade in high school and the complainant was

one of her younger brothers. When she was younger, she lived in a home in Harris

County with her brothers and the complainant’s mother. Appellant also lived in the

home.

As to appellant’s behavior in the home, the complainant’s sister stated that he

had sexual intercourse with the complainant’s mother on multiple occasions in front

of her and her brothers. Appellant also walked around the house naked “all the

time.” And there were always pornographic magazines in the bathroom and on the

coffee table in the living room of the house.

The complainant’s sister also saw appellant physically assault the

complainant, which included “spanking, . . . paddling, . . . using a belt,” duct taping

the complainant, and “beating him.” Appellant would hit the complainant with a

belt all over his body. And appellant would use duct tape to bind the complainant’s

wrists and ankles together so that the complainant “couldn’t fight back” when

appellant “beat him with a belt [or] a paddle.” Appellant would then leave the

complainant bound. “[O]n one occasion[,] he duct-taped [the complainant,]” “put

him in the car[,] and drove off.” They “came back hours later.”

15

The complainant’s sister also saw appellant sexually assault the complainant.

One time, she walked by the complainant’s room and his door was cracked open.

She saw the complainant naked and “face down on the floor” with appellant “behind

him” “on his knees almost.” Appellant was not wearing any clothes. The

complainant was “flailing and kind of screaming, like get off, and [appellant] was

hurting him, and [appellant’s] body [was] moving back and forth.” The

complainant’s sister did not tell anyone about what had happened to the complainant

because appellant “threatened to kill [her] and [her] dad.”

On cross-examination in the first trial, the complainant’s sister testified that

appellant’s children lived in the same house “[o]ff and on,” and they slept in the

living room.13

Standard of Review

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker

v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d); see

also Lee v. State, 442 S.W.3d 569, 575 (Tex. App.—San Antonio 2014, no pet.)

(“We review a trial court’s decision on whether to admit former testimony under

[Texas Rule of Evidence] 804(b)(1) for an abuse of discretion.”). A trial court

13

During the punishment phase of appellant’s retrial, the testimony of the complainant

and the complainant’s sister from the punishment phase of the first trial was

admitted into evidence.

16

abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990). When considering a trial court’s decision to admit evidence, we will

not reverse the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal

quotations omitted). We will uphold a trial court’s evidentiary ruling if it is correct

on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336,

344 (Tex. Crim. App. 2009).

When an objection to the admission of evidence is based on the Confrontation

Clause of the United States Constitution, we review the trial court’s evidentiary

ruling de novo. See Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011);

Wall v. State, 184 S.W.3d 730, 742–43 & n.48 (Tex. Crim. App. 2006) (noting

appellate courts review trial court rulings on admissibility of hearsay evidence under

abuse-of-discretion standard but review Confrontation Clause objections to

admission of evidence under de-novo standard); Nicholls v. State, 630 S.W.3d 443,

448 (Tex. App.—Eastland 2021, pet. ref’d).

Exclusion of Evidence

In his first and second issues, appellant argues that the trial court erred in

admitting the testimony of the complainant from appellant’s first trial because

appellant did not have “a similar motive to develop the testimony of [the

17

complainant] by cross-examination during the [first] trial” and appellant was

deprived his Sixth Amendment right to cross-examine the complainant.14

Hearsay is defined as an out-of-court statement offered for the truth of the

matter asserted. TEX. R. EVID. 801(d). Hearsay is generally inadmissible except as

provided by statute or the rules of evidence. TEX. R. EVID. 802. Texas Rule of

Evidence 804(b)(1)(B) allows the admission of a witness’s testimony from a prior

proceeding if that witness is unavailable as a witness in the current trial. See TEX.

R. EVID. 804(b)(1)(B); Rhymes v. State, 536 S.W.3d 85, 101–02 (Tex. App.—

Texarkana 2017, pet. ref’d). Specifically, rule 804(b)(1)(B) provides that in a

criminal prosecution, former testimony of a witness is admissible if: (1) the witness

is unavailable to testify as a witness in the current proceeding; (2) the witness gave

the former testimony at a trial or hearing of the same or a different proceeding; and

(3) the former testimony “is [being] offered against a party who had an opportunity

and similar motive to develop it by direct, cross-, or redirect examination.”15 See

TEX. R. EVID. 804(b)(1)(B); see also Sanchez v. State, 354 S.W.3d 476, 481 n.5 (Tex.

Crim. App. 2011). Rule 804(b)(1)(B) does not require the party against whom the

former testimony is being offered to have had an “identical” motive to develop the

14

On appeal, appellant does not appear to complain abut the admission of the

complainant’s sister’s former testimony at appellant’s retrial.

15

Appellant does not dispute that the complainant was unavailable.

18

testimony; instead, it only requires that he have had a “similar” motive. See Coffin

v. State, 885 S.W.2d 140, 147 (Tex. Crim. App. 1994) (internal quotations and

emphasis omitted); see also Brown v. State, No. 14-12-00389-CR, 2013 WL

4511349, at *5 (Tex. App.—Houston [14th Dist.] Aug. 22, 2013, no pet.) (mem. op.,

not designated for publication).

Appellant first argues that the trial court erred in admitting into evidence at

appellant’s retrial the complainant’s testimony from appellant’s first trial because

although the complainant was unavailable, appellant did not have “a similar motive

to develop the testimony of [the complainant] by cross-examination during the [first]

trial,” which is required for the admission of former testimony under rule

804(b)(1)(B). See TEX. R. EVID. 804(b)(1)(B).

Here, even if we presumed for purposes of this opinion that the trial court

erred in admitting the complainant’s testimony from appellant’s first trial under

Texas Evidence Rule 804(b)(1)(B), we must still perform a harm analysis to

determine if the trial court’s purported error requires reversal of the trial court’s

judgment. See, e.g., Brown, 2013 WL 4511349, at *7.

If the erroneous admission of evidence constitutes a violation of Texas Rule

of Evidence 804(b), it is non-constitutional error. See Loun v. State, 273 S.W.3d

406, 420–21 & n.24 (Tex. App.—Texarkana 2008, no pet.); see also Coble v. State,

330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Solomon v. State, 49 S.W.3d 356, 365

19

(Tex. Crim. App. 2001). Non-constitutional error requires reversal only if it affects

the substantial rights of the defendant. See TEX. R. APP. P. 44.2(b); Barshaw v. State,

342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011). The defendant’s substantial rights

are affected “when the error had a substantial and injurious effect or influence in

determining the jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997). We will not overturn a criminal conviction for non-constitutional error

if, after examining the record, we have fair assurance that the error did not influence

the jury or had but a slight effect. Barshaw, 342 S.W.3d at 93–94.

We review the entire record to determine the effect or influence of the

wrongfully admitted evidence on the jury’s decision. Id.; Motilla v. State, 78 S.W.3d

352, 355–56 (Tex. Crim. App. 2002). In assessing the likelihood that the jury’s

decision was improperly influenced, we consider the testimony and physical

evidence, the nature of the evidence supporting the verdict, and the character of the

alleged error and how it might be considered in connection with other evidence in

the case. Barshaw, 342 S.W.3d at 94; Motilla, 78 S.W.3d at 355–56. The weight of

evidence of the defendant’s guilt is also relevant in conducting the harm analysis.

Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); see also Motilla, 78

S.W.3d at 355–60. And we may consider closing statements and voir dire, jury

instructions, the State’s theory, any defensive theories, and whether the State

emphasized the alleged error. Motilla, 78 S.W.3d at 355–56. Notably, error in the

20

admission of evidence may be rendered harmless when substantially the same

evidence is admitted elsewhere at trial without objection. See Leday v. State, 983

S.W.2d 713, 717 (Tex. Crim. App. 1998).

Related to his first issue, appellant fails to assert in his briefing that he was

harmed by the admission of the complainant’s testimony from appellant’s first trial.

See Petriciolet v. State, 442 S.W.3d 643, 653–55 (Tex. App.—Houston [1st Dist.]

2014, pet. ref’d) (even if trial court improperly admitted evidence, appellate court

must still determine whether defendant was harmed by erroneous admission); see,

e.g., Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (holding

defendant waived complaint on appeal because he inadequately briefed issue by

failing to address whether alleged error was harmless); Chaves v. State, 630 S.W.3d

541, 557–58 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (holding defendant

waived complaint trial court erred in admitting certain evidence because he “failed

to adequately brief his assertion that he was harmed by the admission of”

complained-of evidence); Ford v. State, No. 01-17-00213-CR, 2018 WL 1473948,

at *6 (Tex. App.—Houston [1st Dist.] Mar. 27, 2018, no pet.) (mem. op., not

designated for publication) (appellate court need not determine whether trial court

erred in admitting exhibits where defendant did not argue in briefing that he was

harmed by purportedly erroneous admission of exhibits); Wilson v. State, 473

S.W.3d 889, 900–01 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (“Here, we

21

do not address whether the trial court erred in admitting the

complained-of . . . evidence because even were we to conclude that the trial court

erred in admitting such evidence, appellant, in his brief, does not argue that he was

harmed by its admission.”).

To assert an issue on appeal, an appellant’s brief must contain “a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal

if he does not adequately brief that issue by not providing supporting arguments,

substantive analysis, and appropriate citations to authorities and to the record. See

id.; Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011); Busby v. State,

253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Chaves, 630 S.W.3d at 555, 557–58.

As the Texas Court of Criminal Appeals has emphasized, an appellate court has no

obligation to construct and compose issues, facts, and arguments with appropriate

citations to authorities and the record for the appellant. See Wolfe v. State, 509

S.W.3d 325, 342–43 (Tex. Crim. App. 2017); Busby, 253 S.W.3d at 673; see also

Wyatt, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“We will not make appellant’s

arguments for him . . . .”). A brief that does not comply with Texas Rule of

Appellate Procedure 38.1 presents nothing for an appellate court to review. See

Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995).

22

Although appellant, in his briefing, argues that the trial court erred in

admitting the complainant’s testimony from appellant’s first trial under Texas Rule

of Evidence 804(b)(1)(B), his brief contains no argument, explanation, substantive

analysis, or citation to authorities to show that he was harmed by the trial court’s

purported erroneous admission.16 See Wyatt, 23 S.W.3d at 23 n.5 (“We will not

make appellant’s arguments for him . . . .”). Accordingly, we hold that appellant

waived, due to inadequate briefing, his complaint that the trial court erred in

admitting the complainant’s testimony from appellant’s first trial in violation of

Texas Rule of Evidence 804(b)(1)(B). See, e.g., Cardenas, 30 S.W.3d at 393

(holding issue inadequately briefed where “appellant d[id] not address the question

of whether the alleged error . . . was harmless”); Chaves, 630 S.W.3d at 557–58

(holding defendant waived complaint trial court erred in admitting certain evidence

because appellant’s brief “contain[ed] no argument, explanation, substantive

analysis, or citation to authorities to show that he was harmed by the trial court’s

16

Related to his first issue, roughly four pages of appellant’s “argument” section in

his brief is text that is copied and pasted from this Court’s previous opinion

involving appellant. See, e.g., Goode v. State, No. 05-14-00651-CR, 2015 WL

3993222, at *2 (Tex. App.—Dallas July 1, 2015, pet. ref’d) (mem. op., not

designated for publication) (holding appellant’s briefing on issue inadequate where

large portion of briefing consisted of just direct quotes of testimony). But

appellant’s first appeal addressed an issue separate from appellant’s complaint in

this appeal concerning the admission of the complainant’s former testimony under

Texas Rule of Evidence 804(b)(1)(B). See Wilson, 451 S.W.3d at 883–89.

Appellant does not cite to Texas Rule of Appellate Procedure 44.2 nor engage in

any harm analysis related to his Texas Rule of Evidence 804(b)(1)(B) complaint.

23

purported erroneous admission of the [complained-of evidence]”); Ford, 2018 WL

1473948, at *6; Wilson, 473 S.W.3d at 900–01 (defendant waived complaint trial

court erred in admitting certain evidence where he failed to “identify[] the harm that

he suffered as a result of the admission of the complained-of evidence”).

Appellant next argues that the trial court erred in admitting into evidence at

appellant’s retrial the complainant’s testimony from appellant’s first trial because

appellant was deprived his constitutional right to cross-examine the complainant.

See U.S. CONST. amend. VI; see also Render v. State, 347 S.W.3d 905, 917 (Tex.

App.—Eastland 2011, pet. ref’d) (explaining “[w]hether a statement is admissible

under the rules of evidence and whether that same statement is admissible under the

Confrontation Clause are separate questions”).

The Confrontation Clause of the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. CONST. amend. VI; see also Sohail v. State, 264

S.W.3d 251, 258 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (“A defendant

has a constitutional right to confront and cross-examine the witnesses against him.”).

The Confrontation Clause provides two types of protections for a criminal

defendant: the right physically to face those who testify against him and the right to

conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); see

also Coy v. Iowa, 487 U.S. 1012, 1016 (1988) (Confrontation Clause “guarantees

24

[a] defendant a face-to-face meeting with witnesses appearing before the trier of

fact”). The Confrontation Clause bars admission of a witness’s prior testimony

unless the witness is unavailable and the defendant had a prior opportunity to

cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 59 (2004);

Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005).

Even if we presumed for purposes of this opinion that the trial court erred in

admitting the complainant’s testimony from appellant’s first trial because the

admission violated appellant’s Sixth Amendment right to cross-examine “the

witnesses against him,” we must still perform a harm analysis and determine whether

appellant was harmed by the admission of the complainant’s former testimony. See,

e.g., Henriquez v. State, 580 S.W.3d 421, 429 (Tex. App.—Houston [1st Dist.] 2019,

pet. ref’d); Render, 347 S.W.3d at 918–20.

If the erroneous admission of evidence constitutes a violation of a defendant’s

rights under the Confrontation Clause, it is constitutional error, and we must reverse

the judgment of conviction unless we determine beyond a reasonable doubt that the

error did not contribute to the conviction. See TEX. R. APP. P. 44.2(a); Henriquez,

580 S.W.3d at 429; Gutierrez v. State, 516 S.W.3d 593, 599 (Tex. App.—Houston

[1st Dist.] 2017, pet. ref’d); Render, 347 S.W.3d at 918. In conducting the

harm-analysis, the critical inquiry is not whether the evidence supported the verdict

absent the erroneously admitted evidence, but rather “the likelihood that the

25

constitutional error was actually a contributing factor in the jury’s deliberations.”

Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007); see also Henriquez,

580 S.W.3d at 429. We must “calculate, as nearly as possible, the probable impact

of the error on the jury in light of the other evidence.” McCarthy v. State, 65 S.W.3d

47, 55 (Tex. Crim. App. 2001). While our review must focus on the error and its

effect, “the presence of other overwhelming evidence that was properly admitted

which supports the material fact to which the inadmissible evidence was directed

may be an important factor in the evaluation of harm.” Wall v. State, 184 S.W.3d

730, 746 (Tex. Crim. App. 2006). In determining if the constitutional error may be

declared harmless beyond a reasonable doubt, we may consider: (1) how important

the out-of-court statement was to the State’s case; (2) whether the out-of-court

statement was cumulative of other evidence; (3) the presence or absence of evidence

corroborating or contradicting the out-of-court statement on material points; and

(4) the overall strength of the State’s case. Scott, 227 S.W.3d at 690; Gutierrez, 516

S.W.3d at 599.

Appellant fails to assert in his briefing that he was harmed by the admission,

over his Confrontation-Clause objection, of the complainant’s testimony from

appellant’s first trial. See Petriciolet, 442 S.W.3d at 653–55 (even if trial court

improperly admitted evidence, appellate court must still determine whether

defendant was harmed by erroneous admission); see, e.g., Cardenas, 30 S.W.3d at

26

393 (holding defendant waived complaint on appeal because he inadequately briefed

issue by failing to address whether trial court’s alleged error was harmless); White

v. State, No. 01-20-00238-CR, 2022 WL 2674214, at *7–9 (Tex. App.—Houston

[1st Dist.] July 12, 2022, no pet.) (mem. op., not designated for publication) (holding

defendant’s challenge to testimony based on Confrontation Clause waived because

defendant “fail[ed] to address in any way how he was harmed by its admission, an

element he [was] required to establish on appeal”); Bradshaw v. State, No.

01-19-00611-CR, 2020 WL 7062589, at *5 (Tex. App.—Houston [1st Dist.] Dec. 3,

2020, no pet.) (mem. op., not designated for publication) (defendant waived

Confrontation-Clause complaint where he failed to argue he was harmed by

allegedly erroneous admission of evidence); Crawford v. State, 595 S.W.3d 792, 801

(Tex. App.—San Antonio 2019, pet. ref’d) (holding defendant waived complaint

trial court erred in admitting certain testimony that violated his right to confrontation

because defendant “d[id] [not] explain how he was harmed as a result”); Wilson, 473

S.W.3d at 900–01 (“Here, we do not address whether the trial court erred in

admitting the complained-of . . . evidence because even were we to conclude that

the trial court erred in admitting such evidence, appellant, in his brief, does not argue

that he was harmed by its admission.”).

To assert an issue on appeal, an appellant’s brief must contain “a clear and

concise argument for the contentions made, with appropriate citations to authorities

27

and to the record.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal

if he does not adequately brief that issue by not providing supporting arguments,

substantive analysis, and appropriate citations to authorities and to the record. See

id.; Lucio, 351 S.W.3d at 896–97; Busby, 253 S.W.3d at 673; Chaves, 630 S.W.3d

at 555, 557–58. As the Texas Court of Criminal Appeals has emphasized, an

appellate court has no obligation to construct and compose issues, facts, and

arguments with appropriate citations to authorities and the record for the appellant.

See Wolfe, 509 S.W.3d at 342–43; Busby, 253 S.W.3d at 673; see also Wyatt, 23

S.W.3d at 23 n.5 (“We will not make appellant’s arguments for him . . . .”). A brief

that does not comply with Texas Rule of Appellate Procedure 38.1 presents nothing

for an appellate court to review. See Alvarado, 912 S.W.2d at 210.

Although appellant, in his briefing, argues that the trial court erred in

admitting the complainant’s testimony from appellant’s first trial in violation of his

Sixth Amendment right to cross-examine, his brief contains no argument,

explanation, substantive analysis, or citation to authorities to show that he was

harmed by the trial court’s purported erroneous admission.17 See Wyatt, 23 S.W.3d

at 23 n.5 (“We will not make appellant’s arguments for him . . . .”). Accordingly,

17

In his brief, appellant devotes only a single analysis paragraph to his complaint that

the trial court’s admission of the complainant’s former testimony “deprived

[appellant] of his right to cross-examination.” Appellant again does not cite to

Texas Rule of Appellate Procedure 44.2 nor engage in any harm analysis related to

his Confrontation-Clause complaint.

28

we hold that appellant waived, due to inadequate briefing, his complaint that the trial

court erred in admitting the complainant’s testimony from appellant’s first trial in

violation of his Sixth Amendment right to cross-examine. See, e.g., Cardenas, 30

S.W.3d at 393 (holding issue inadequately briefed where “appellant d[id] not address

the question of whether the alleged error . . . was harmless”); Chaves, 630 S.W.3d

at 557–58 (holding defendant waived complaint trial court erred in admitting certain

evidence because appellant’s brief “contain[ed] no argument, explanation,

substantive analysis, or citation to authorities to show that he was harmed by the trial

court’s purported erroneous admission of the [complained-of evidence]”); Ford,

2018 WL 1473948, at *6; Wilson, 473 S.W.3d at 900–01 (defendant waived

complaint trial court erred in admitting certain evidence where he failed to

“identify[] the harm that he suffered as a result of the admission of the complained-of

evidence”).

Modification of Judgment

Here, the trial court’s written judgment does not accurately comport with the

record in this case in that it states that the jury assessed appellant’s punishment at

confinement for forty years and a fine of “$10,100.00.” The record, however, shows

that the jury assessed appellant’s punishment at confinement for forty years and a

fine of $10,000.

29

“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data

and information to do so[] or make any appropriate order as the law and nature of

the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston

[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.

App.—Dallas 1991, pet ref’d)). This is true no matter who, or if anyone, has called

the matter to the attention of the appellate court. See French v. State, 830 S.W.2d

607, 609 (Tex. Crim. App. 1992); see also Asberry, 813 S.W.2d at 529–30 (“The

authority of an appellate court to reform incorrect judgments is not dependent upon

the request of any party, nor does it turn on the question of whether a party has or

has not objected in the trial court.”).

Accordingly, we modify the trial court’s judgment to reflect that a

“$10,000.00” fine was assessed by the jury against appellant. See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); see also

Contreras v. State, Nos. 05-13-00752-CR, 05-13-00753-CR, 2015 WL 3554086, at

*2–3 (Tex. App.—Dallas June 8, 2015, pet. ref’d) (mem. op., not designated for

publication) (modifying trial court’s written judgment to reflect $10,000 fine

assessed by jury).

30

Conclusion

We affirm the judgment of the trial court as modified.

Julie Countiss

Justice

Panel consists of Chief Justice Adams and Justices Hightower and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).

31