Christian Avery Franklyn v. the State of Texas

Opinion issued April 21, 2026




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-24-00686-CR
                          ———————————
               CHRISTIAN AVERY FRANKLYN, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 174th District Court
                           Harris County, Texas
                       Trial Court Case No. 1720687


                         MEMORANDUM OPINION

      A jury convicted Christian Avery Franklyn of the second-degree felony

offense of sexual assault, and he subsequently entered a plea agreement with the
State for a six-year prison sentence.1 In a single issue on appeal,2 Franklyn contends

that the trial court abused its discretion by admitting his two remote prior convictions

while excluding the complainant’s remote prior conviction, all of which were offered

for impeachment purposes under Rule of Evidence 609(b). Franklyn further

contends that these evidentiary rulings were harmful. We affirm.

                                      Background

      In October 2019, Alexsis Mitchell rented a three-story townhouse in Houston

to host her birthday party. She invited several friends, many of whom she had

attended high school with ten years earlier. Three friends are relevant: F.J. (Faye),3

the complainant and Mitchell’s best friend; Shabrittaney Graham; and Franklyn.

Alcohol was served at the party, and some attendees smoked marijuana on the porch.

      Faye arrived around 11 p.m. after the party had started. She had worked a

twelve-hour shift the night before and had not slept since the day before the party.

She drank three shots of Hennessy shortly after arriving. She went outside to smoke

marijuana, and then she had a few more shots and a margarita. She eventually sat at

a table mingling with Graham and others. Faye testified that she was intoxicated and



1
      See TEX. PENAL CODE § 22.011(a)(1)(A), (b)(3), (5).
2
      In his opening brief, Franklyn asserted two additional issues challenging court costs,
      but he withdrew these issues in his reply brief. Accordingly, we do not consider
      Franklyn’s second and third issues challenging court costs.
3
      We refer to the complainant by a pseudonym to protect her privacy.
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had some gaps in her memory, but Mitchell denied seeing her intoxicated, and

Graham denied seeing her drink alcohol during the party. Faye briefly fell asleep

while sitting at the table, so she decided to go upstairs to sleep.

      Franklyn arrived at the party after Faye but before she went upstairs to sleep.

Franklyn had taken oxycontin earlier in the day, and he consumed a few alcoholic

drinks at the party, but he denied that his memory was affected. After Faye went

upstairs to sleep, Franklyn went to use the restroom. The only restrooms in the house

were on the top floor where Faye had gone to sleep. While upstairs, Franklyn had

sexual intercourse with Faye.

      Franklyn and Faye testified about the sexual encounter at trial, and their

stories differed. Faye said that she awoke to someone having sex with her, while

Franklyn said that Faye was awake when he went upstairs, the two talked for a while,

and then she initiated intercourse. They were the only two people in the bedroom at

the time. Afterwards, Franklyn returned downstairs. Mitchell asked where he had

been because his friends were looking for him so they could leave the party. Franklyn

told Mitchell that he was with Faye.

      The following day, Faye told Mitchell that she believed someone had sex with

her at the party, and she identified Franklyn from his clothing. She denied knowing

Franklyn before the party, even though the two had attended the same high school




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and graduated one year apart. She went to the hospital the day after the party, and a

nurse administered a rape kit.

      Faye and Franklyn spoke to each other through Instagram and a single phone

call after the incident. Faye accused Franklyn of raping her, and he initially denied

that they had intercourse. But he eventually admitted to the act and conceded it at

trial. Franklyn maintained that the sex was consensual.

      Franklyn was charged with sexual assault. Mitchell, Graham, Faye, and

Franklyn testified at trial, as did the nurse who administered the rape kit and a

forensic analyst who identified Franklyn’s DNA on swabs from Faye’s vagina.

      Faye’s trial testimony differed from Mitchell’s and Graham’s testimony in

some respects. For example, Faye testified that 50 people attended the party, and she

drank seven or eight shots of liquor from a shot glass. But Mitchell and Graham

estimated that 20–25 people attended the party, and they denied seeing Faye

intoxicated or drinking alcohol. Faye testified that she had never seen Franklyn

before the incident, but Graham testified that Faye and Franklyn sat at a table

together during the party. Faye also testified that she planned to spend the night and

go to brunch with Mitchell the following day, but Mitchell and Graham testified that

only Mitchell planned to spend the night at the rented house and no brunch was ever

planned.




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      During a pretrial conference, the trial court heard the State’s motion in limine.

The State requested that the parties seek the trial court’s permission outside the jury’s

presence before mentioning that Faye was convicted in 2012 for misdemeanor lying

to a police officer. Defense counsel agreed to this request, and the trial court granted

it. After hearing the remainder of the State’s motion in limine, the court then heard

Franklyn’s motion to exclude his criminal history under Rule of Evidence 609.

      Defense counsel stated that Franklyn intended to testify, and counsel sought

to exclude any references to Franklyn’s prior criminal history. The State responded

that it intended to introduce two misdemeanor theft convictions from 2012. The State

acknowledged that these convictions were more than 10 years old, but it argued that

because Franklyn’s credibility would be at issue if he testified, any prejudice from

these remote convictions was attenuated by two more recent offenses: an aggravated

robbery charge for which Franklyn successfully completed deferred adjudication

and a misdemeanor conviction for possession of marijuana. Defense counsel argued

that the probative value of the remote theft convictions did not substantially

outweigh their prejudicial effect under Rule 609(b). The trial court admitted the

convictions and granted Franklyn’s request for a running objection.

      Based on the ruling to admit Franklyn’s remote convictions, defense counsel

asked to revisit the trial court’s limine ruling concerning Faye’s remote conviction.

Counsel essentially saw a “goose-gander” situation: he argued that Faye’s conviction


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was admissible for the same reason Franklyn’s convictions were admissible. The

trial court noted that Faye did not have any intervening convictions, a fact which

distinguished her remote conviction. The trial court ruled that Faye’s conviction was

inadmissible.

      During cross-examination, Franklyn conceded all elements of sexual assault

except the consent element. Once the State established that consent was the only

disputed element, it asked one—and only one—question about one of the remote

convictions: “[Y]ou’re the same Christian Franklyn who was convicted of a

misdemeanor theft back in 2012; is that correct?” Franklyn responded, “Yes.”

Defense counsel requested a limiting instruction, and the trial court instructed the

jury that the evidence was limited to assisting the jurors in “passing upon the weight

you will give this testimony.” The jury charge reiterated this limiting instruction.

There was no further mention of Franklyn’s prior theft conviction during trial.

      The jury found Franklyn guilty of sexual assault. Franklyn entered a plea

agreement for eight years’ imprisonment with no right of appeal. He then moved for

a new punishment trial, arguing that the visiting judge who presided over trial

pressured him into accepting a plea deal. The trial court granted the motion. Franklyn

subsequently entered a new plea agreement for six years’ imprisonment with the

right of appeal. This appeal followed.




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       Admissibility of Remote Convictions for Impeachment Purposes

      In his sole issue, Franklyn challenges the trial court’s evidentiary rulings

which admitted his remote convictions and excluded Faye’s remote conviction.

A.    Preservation of Error

      The State contends that Franklyn did not preserve his issue for appellate

review. According to the State, Franklyn’s “only objection” to the trial court’s

evidentiary rulings “was at the motion in limine hearing.” The State concedes that

Franklyn obtained a running objection to the ruling to admit his remote convictions,

but it argues that he did not mention the running objection when the State asked him

about one of the convictions during trial. The State further argues that Franklyn

“never attempted to impeach the complaining witness with her prior conviction.”

We disagree with these arguments.

      At a pretrial conference outside the jury’s presence, the trial court heard the

State’s motion in limine. The State requested that the court order the parties to seek

permission prior to making “any reference” before the jury “to the criminal history

of any of the State’s witnesses that would not otherwise be admissible under the

[R]ules of [E]vidence, 609 in particular[.]” Defense counsel acknowledged that Faye

had a prior misdemeanor conviction, but he did not intend to mention it and did not

oppose the motion in limine on this ground. The trial court granted this limine




                                          7
request. The court heard the remainder of the State’s motion before turning to

Franklyn’s Rule 609 motion.

      In addressing Franklyn’s motion, defense counsel stated that Franklyn would

testify and argued that his prior criminal history was inadmissible. The State

responded that if Franklyn testified, it intended to impeach him with two 2012

misdemeanor convictions for theft. It acknowledged that these convictions were

more than 10 years old. But it argued that Franklyn’s credibility was at issue in this

“he-said-she-said” case, and his more recent “intervening criminal history”—the

deferred adjudication for aggravated robbery and the misdemeanor conviction for

possession of marijuana—“sort of bolster[s]” the remote theft convictions such that

the remote convictions were “not as attenuated or remote as they would otherwise

seem[.]” Franklyn argued that the probative value of the remote convictions did not

substantially outweigh their prejudicial effect. The trial court denied Franklyn’s

motion, ruled that Franklyn’s two remote theft convictions were admissible, and

granted defense counsel’s request for a running objection.

      Upon receiving this adverse ruling, defense counsel asked the court to revisit

the limine ruling on Faye’s remote conviction. Counsel argued that this conviction

should be admissible for impeachment purposes. The State responded that Faye’s

remote conviction was distinguishable from Franklyn’s because Faye had no

intervening criminal history. Defense counsel agreed that Faye lacked any


                                          8
intervening criminal history, but he argued that her remote conviction was

admissible under Rule 609 for the same reasons Franklyn’s remote convictions were

admissible. The trial court excluded Faye’s remote conviction.

      During trial, the State asked Franklyn if he had been convicted of

misdemeanor theft in 2012. Without objection, he answered, “Yes.” Neither party

mentioned the conviction again during trial.

      The State is correct that a ruling on a motion in limine is a preliminary ruling

that does not preserve error for appellate review. See Geuder v. State, 115 S.W.3d

11, 14–15 (Tex. Crim. App. 2003). Such a ruling merely prohibits the parties from

mentioning certain evidence to the jury until a hearing has been held outside the

jury’s presence to determine the admissibility of the evidence. Id. at 14. Here,

Franklyn raised both complaints after the portion of the hearing on the State’s motion

in limine had concluded. He complained that his own remote convictions were

inadmissible in support of his motion to exclude the evidence under Rule 609, not

in response to the State’s motion in limine.

      He also raised his complaint about Faye’s remote conviction during the

hearing on his Rule 609 motion. True, the issue first arose in the State’s motion in

limine, and Franklyn initially did not oppose the State’s request to have the parties

seek permission prior to referencing Faye’s remote conviction. But after the trial

court admitted his remote convictions, he sought reconsideration of the motion in


                                          9
limine ruling concerning Faye’s remote conviction. And his complaint went further

than merely requesting a hearing outside the jury’s presence: He complained that

Faye’s remote conviction was admissible for impeachment purposes, and the trial

court ruled that it was not admissible.

      To preserve a complaint for appellate review, the record must show that the

complaint was timely made with sufficient specificity in the trial court and that the

court expressly or implicitly ruled on the complaint. TEX. R. APP. P. 33.1(a).

Franklyn met these requirements. He argued that his remote convictions for theft

were inadmissible, but if they were admissible, then so too was Faye’s similar

remote conviction. The trial court admitted Franklyn’s remote convictions and

excluded Faye’s remote conviction. The rulings were not limited to requiring the

parties to request permission before mentioning any of the convictions before the

jury. This is all Rule 33.1(a) required to preserve both rulings for appellate review.

      We disagree with the State that to preserve error, Franklyn was required to

attempt to impeach Faye with the remote conviction when he cross-examined her.

He had already obtained a ruling on his complaint. Attempting to impeach Faye with

the excluded evidence would have violated the court’s ruling.

      Nor was Franklyn required to repeat his running objection when the State

asked him about one of his remote convictions during trial. As the State points out,

“the law in Texas requires a party to continue to object each time inadmissible


                                          10
evidence is offered.” Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003)

(quotation omitted). But there are two important exceptions to this rule: a party may

either obtain a running objection or request a hearing outside the jury’s presence.

Id.; see also TEX. R. EVID. 103(a) (“When the court hears a party’s objections outside

the presence of the jury and rules that evidence is admissible, a party need not renew

an objection to preserve a claim of error for appeal.”). Here, the trial court ruled that

Franklyn’s conviction was admissible in a hearing outside the jury’s presence, and

Franklyn obtained a running objection. Under well-established case law and the

Rules of Evidence, Franklyn was not required to renew his complaint to preserve

error. We hold that Franklyn preserved his issue for appellate review.

B.    Error

      Franklyn challenges the trial court’s rulings that admitted his remote

convictions and excluded Faye’s remote conviction. He acknowledges that a trial

court has discretion in making evidentiary rulings, but he cogently argues that the

exercise of discretion here was corrupted by a mistaken insistence on treating similar

situations differently. We will assume for the purposes of this opinion that he has

the better of the argument as to admissibility.

      In particular, we will assume that the trial court abused its discretion by

admitting Franklyn’s remote convictions while simultaneously excluding Faye’s

remote conviction under Rule 609(b). We turn to whether this error was harmful.


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C.    Harm

      The remaining question is whether Franklyn can establish harm. Franklyn

argues that the erroneous rulings were reversible because the “trial turned entirely

on credibility”: The “jury had to decide whether to believe [Franklyn’s] testimony

that the sex was consensual or [Faye’s] testimony that it was not.” Franklyn’s “theft

conviction [the only one which the jury heard] gave the jury a piece of official,

independent evidence from which it could have concluded that he was a criminal

unworthy of belief” while the jury was “prevented from learning that [Faye] had

been convicted of lying to a police officer—a crime that bears directly on

truthfulness.” He concludes that “that difference may well have been decisive.” The

State agrees that the “major issue” at trial was whether Faye “could have consented

to the activity”: “Her testimony was that she did not, his testimony was that she did.”

      The parties agree that a trial court’s erroneous evidentiary ruling is non-

constitutional error. See Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App.

2018); Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.—Houston [1st Dist.] 2007,

pet. ref’d). Non-constitutional error requires reversal only if it affects the defendant’s

substantial rights. See TEX. R. APP. P. 44.2(b). The Court of Criminal Appeals has

construed this rule to mean that error is reversible only when it has a substantial and

injurious effect or influence in determining the jury’s verdict. Gonzalez, 544 S.W.3d

at 373.


                                           12
      Substantial rights are not affected if an appellate court, after examining the

record as a whole, has fair assurance that the error did not influence the jury or had

only a slight effect. Id. The reviewing court should consider the entire 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 the alleged error might be considered in connection with other evidence in

the case. Motilla v. State, 78 S.W.3d 352, 357–58 (Tex. Crim. App. 2002) (quoting

Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)). The court may also

consider the jury charge, the State’s theory and any defensive theories, closing

arguments, and voir dire, if material to the defendant’s claims. Morales, 32 S.W.3d

at 867.

      Considering the entire record, we cannot conclude that the error in excluding

Faye’s prior conviction caused a substantial and injurious effect or influence in

determining the jury’s verdict. We acknowledge that the credibility of Franklyn and

Faye bore heavily on the disputed element of consent. They were the only two people

in the bedroom where the alleged sexual assault occurred, and they agreed at trial

that sexual intercourse had occurred. They disagreed only about whether Faye

consented to have sex with Franklyn.

      But other evidence weighed on the jury’s determination of Faye’s credibility.

For example, Faye testified that she had consumed numerous alcoholic beverages


                                         13
and smoked marijuana at the party. She also testified that she had gaps in her

memory, which is relevant to her credibility about the events of the night. Her

testimony also differed in some respects from other witnesses’ testimony. Faye

testified that 50 people attended the party, while other testimony indicated that only

about 20 or 25 people attended the party. Faye testified that she drank seven or eight

shots of liquor from a shot glass, while others denied seeing her drink any alcohol

or become intoxicated. Faye testified that she did not see Franklyn sitting at a table

with her during the party, but another witness contradicted this testimony. Faye

testified that she planned to stay the night at the house and have brunch with Mitchell

the next day, but Mitchell and another witness denied both facts.

      With these factors, it is unlikely that evidence of her misdemeanor conviction

more than ten years earlier would have changed the credibility determination. Such

evidence likely would have consisted of only a single yes-or-no question to this

fairly young witness about something that occurred when she was even younger.

Adding those ten or fifteen seconds to the trial probably would not have changed

anyone’s view of anything, as the jury likely did not labor under any illusion about

the party in general or these two witnesses in particular.

      Similarly, Franklyn’s credibility did not come down to the passing mention of

his twelve-year-old misdemeanor theft conviction—a fact never mentioned again at

trial. The jury heard that Franklyn had taken oxycontin the day of the alleged assault.


                                          14
The jury also heard that he denied having sexual intercourse with Faye at all when

confronted about it, and he maintained the lie for some time before finally admitting

to her that they had sex. This lie likely diminished his credibility far more than the

remote conviction, especially because the State emphasized the lie during closing.

      Regarding the incident itself, Faye testified that she had not slept for more

than 24 hours when she arrived at the party. She fell asleep while sitting at a table

during the party, went upstairs to sleep, and awoke to someone she later identified

as Franklyn penetrating her. This evidence was sufficient to support the disputed

lack of consent element of sexual assault.

      In sum, we have a fair assurance from examining the record as a whole that

the trial court’s erroneous evidentiary rulings did not influence the jury or had only

a slight effect. See Gonzalez, 544 S.W.3d at 373. Accordingly, we hold that the error

was not harmful.

                                    Conclusion

      We affirm the judgment of conviction.




                                                David Gunn
                                                Justice

Panel consists of Chief Justice Adams and Justices Gunn and Johnson.

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

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