A New Boston, Texas, man sentenced to two life sentences plus 20 years by a Bowie County jury last August will get a new trial.
Donald Harrell, 61, was sentenced to life on two counts of aggravated sexual assault of a child and to 20 years for indecency with a child by a Bowie County jury. The 6th District Court of Appeals in Texarkana reversed Harrell’s convictions and sentences and sent the case back to the trial court in an opinion released Thursday.
Harrell was found guilty of misconduct with a 9-year-old relative. During Harrell’s trial, the jury also heard testimony from a young neighbor who claimed she was sexually abused by Harrell also. The court of appeals opinion states that 5th District Judge Bill Miller should not have allowed the jury to hear the second girl’s testimony.
At trial Harrell testified under direct questioning by his lawyer that he is impotent, likely from medications he takes for a variety of physical conditions. Under cross examination by the state during his August 2016 jury trial, Harrell testified that he doesn’t currently experience sexual desire.
The state argued at trial that the second girl should be allowed to testify to rebut the testimony concerning impotence and sexual desire. Miller allowed the testimony and the state referred to it during its closing remarks as indicative of Harrell having a pattern of preying on girls of a certain age.
Harrell’s appellate attorney argued that the testimony from the second girl shouldn’t have been allowed because the defense did not put forth a theory which would have made the sexual abuse impossible. The court of appeals agreed, noting that an impotent person can still commit aggravated sexual assault as the offense is defined by law and thus the testimony to rebut the impotence testimony shouldn’t have been allowed.
The court of appeals found as well that the state elicited testimony from Harrell concerning sexual desire, not Harrell’s defense attorney. The opnion refers to case law which establishes that the state can’t call a rebuttal witness to refute testimony the state elicited from a defendant. The opinion also notes that Harrell didn’t claim he lacked sexual desire in 2013 when the sexual assaults were alleged to have occurred.
