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Click here for the full text of this decision FACTS:A trial court tried David Wayne Casey Jr. and Scott Cannon jointly for drugging and sexually assaulting K.T., the complainant. The jury acquitted Cannon but convicted Casey, sentencing him to a 20-year prison term. K.T. met Casey at a party a couple of months prior to the offense. Chris Nunn, K.T.’s then-boyfriend and Casey’s friend, introduced K.T. to Casey at the party. By the time of the offense, K.T. no longer dated Nunn. On the night of the offense, K.T. worked as a waitress at a topless bar. K.T. called Casey on her cell phone to see what he was doing. K.T. got another call and told Casey that she would call him back, but Casey and Cannon arrived at the bar a short time later to see K.T. K.T. then conversed with Casey and Cannon and had at least one drink with them. Casey and Cannon invited K.T. to Casey’s house and she accepted. K.T. followed Cannon and Casey to his house in her own car. After arriving at Casey’s house, the three were joined by Casey’s roommate, Jessie Diaz. Casey, Diaz and Cannon went into the kitchen and prepared some vodka shots for everyone. K.T. testified that she felt extremely intoxicated about one minute after drinking the vodka shot and lost consciousness, although she had brief intervals of partial lucidity throughout the rest of the evening. K.T. further testified that these moments of partial coherence lasted approximately a minute or less. K.T. remembered first being dragged from the living room and into a hallway. At this point, she realized her shirt had been removed and she was vomiting and defecating. She saw Casey and Cannon standing over her discussing what to do with her. While in the hallway, she perceived several camera flashes, which caused her to squint her eyes. The next recollection she had, she was naked and Casey was raping her. Cannon was standing behind Casey, and K.T. believed that Cannon was using a camcorder. K.T. next recalled Cannon penetrating her while Casey watched. K.T. testified that she felt helpless and explained that she tried to tell them to stop, “but I really couldn’t move my mouth or my arms or anything.” K.T. testified that when she awoke the next morning, she was naked and lying on the floor in Casey’s bedroom. Casey told her that she had gotten so intoxicated he had had to wash her clothes. Although still impaired, K.T. got dressed and drove to Nunn’s house. Nunn drove her to a hospital for a rape exam. Police questioned K.T. about the offense while she was at the hospital. Casey’s attorney offered evidence that K.T. had personal reasons to testify falsely about the incident. Specifically, defense counsel questioned K.T.’s motives, implying that K.T. had actually consented to sex with Casey but later decided to lie so that her on-again, off-again boyfriend, Nunn, would not be angry with her and would take her back. Results from the rape exam indicated that Casey was the contributor of semen recovered from K.T.’s vagina. Cannon was ruled out as a contributor. The results of a urinalysis test for gamma hydroxybutyrate (GHB), commonly known as a date-rape drug, were negative. However, at trial, the state offered the testimony of a toxicologist who explained that GHB has a half-life in the body of only 20 minutes to an hour. Police searched Casey’s house, and police recovered the following items: a plastic coke bottle containing GHB; two exposed but undeveloped rolls of film from Diaz’s bedroom; one Polaroid photograph depicting K.T. passed-out, unclothed and lying in the hallway; and three Polaroid close-up shots of her vagina. The state offered into evidence photographs made from the rolls of undeveloped film in two distinct groups. Except for the one Polaroid photograph of K.T. lying naked on the floor, Casey objected to all of the photographs based on Texas Rules of Evidence 404(b) and 403. The photos included naked photographs of another woman who was apparently unconscious, photos of an orgy that included Cannon and other participants, Diaz having sex with an unidentified woman, and photos of Casey in an intoxicated state. In sum, the state argued primarily that all of the photographs were admissible to connect Casey and Cannon as parties to the instant offense, to show motive and to rebut Casey’s defensive theories that it was K.T. who brought the GHB, voluntarily became intoxicated and consented to the sexual acts. Eventually, the trial judge admitted all of the photographs. She noted, inter alia, that they tended to show the knowledge and participation of all three men � Casey, Cannon, and Diaz � in this incident as well as the other incidents. The 3rd Court of appeals reversed the trial court’s judgment, holding that admission of the photographs from the undeveloped rolls of film violated Rules 404(b) and 403, and that their improper admission was harmful. Specifically, the 3rd Court concluded that the trial court erred in admitting the two sets of photographs, because “the events depicted . . . did not have any tendency to make the existence of a fact of consequence more or less probable” and they “improperly encouraged the jury to convict appellant on the basis of his . . . debauched character.” HOLDING:Reversed and remanded. Under the Rule 404(b), the Court of Criminal Appeals (CCA) stated, evidence that does not have relevance apart from character conformity is inadmissible. Extraneous-offense evidence is admissible under Rule 404(b) if the extraneous-offense evidence is relevant to a fact of consequence apart from its tendency to show conduct in conformity with character, the CCA stated. Once a trial court rules that Rule 404(b) does not bar uncharged misconduct evidence, the CCA stated that the opponent of the evidence may further object under Rule 403, which bars relevant evidence when the item’s probative value is substantially outweighed by the danger of unfair prejudice. The CCA first examined exhibits 71 through 76 and 78, photographs that depicted an unidentified woman (or possibly two different women), who was naked and unconscious. The CCA also examined exhibits 95 through 97, which depicted another unidentified woman who was naked and clearly conscious. The CCA held that all of the photographs were admissible despite Rule 404, because they had logical relevance apart from character conformity. Casey and his co-defendant Cannon, the CCA noted, repeatedly urged the defensive theories of consent and voluntary intoxication, as well as their theory that K.T. fabricated the sexual-assault story to save her relationship with Nunn, her former boyfriend. The defense also focused upon K.T.’s purportedly low moral character as a stripper. The CCA held that when the defensive theory of consent is raised in a prosecution for sexual assault, the defendant necessarily disputes his intent to engage in the alleged conduct without the complainant’s consent and places his intent to commit sexual assault at issue. The CCA also stated that evidence of a defendant’s particular modus operandi is a recognized exception to the general rule precluding extraneous-offense evidence, if the modus operandi evidence tends to prove a material fact at issue, other than propensity. The CCA further held that the danger of unfair prejudice under Rule 403 did not substantially outweigh the probative value of the photographs of the unconscious female (or females) and of the conscious female. The inherent probative force of these exhibits was its tendency to show that K.T. did not consent to the sexual activity, the CCA noted. Whether K.T. consented was the ultimate issue to be established by the parties in the litigation, the court stated. In addition, the court stated, the state needed the evidence to counterbalance the various defensive theories advanced throughout the trial. The CCA concluded that the probative value, coupled with the state’s need for the evidence, would lead a reasonable trial judge to assign considerable probative weight to the photographs of the unconscious woman or women. In sum, the CCA found that the trial judge did not abuse her discretion in deciding that the risk of unfair prejudice did not substantially outweigh the probative value of these photographs. Moving on to the remaining photographs, the CCA agreed with the court of appeals that state’s exhibit 77 (Diaz having sex with an unnamed female) and state’s exhibits 82 through 94 (various photographs of an intoxicated Cannon and two of Casey, one wherein he is urinating on the side of a building and another in which he flashed a gang sign) were inadmissible. These photographs were not supportive of a fact of consequence to the proceedings, the CCA found. Despite the trial judge’s error in admitting the photographs, the CCA found that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. The photographs of Cannon, Casey and Diaz partying were not scandalous or shocking but innocuous in comparison to both the photographs of K.T. and the unidentified woman. Finally, the CCA found that because the jury charge tracked the language of the statute, the trial court did not abuse its discretion by including the word “victim” in the charge. OPINION:Holcomb, J., delivered the opinion of the court, in which, Keller, P.J., Meyers, Womack, Johnson, Keasler, Hervey and Cochran, J.J., joined. DISSENT:Price, J., dissented without a written opinion.

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