Wilson v. State, 2017 Tex. App. LEXIS 5495 (Tex. App. June 15, 2017)

In a case with significant negative repercussions for PLHIV charged with sexual offenses, a Texas court of appeals affirmed the conviction of a PLHIV for sexual assault of a child. HIV and AIDS, mentioned by the prosecution fifty-five times at trial, were not elements of the offense of sexual assault. The appellant, Wilson, claimed that the trial court should not have allowed testimony of his HIV status, the repeated introduction of which was unfairly prejudicial and amounted to prosecutorial misconduct. Wilson also argued his attorney did not provide effective assistance because he failed to object to introduction of such evidence, or to adequately prepare for trial.  All these claims were denied by the court of appeals.

At trial, the State presented testimony that both Wilson and his alleged victim—a minor—were living with HIV, as evidence of the alleged sexual assault of a child. Wilson objected to such evidence at trial because he claimed its probative value was outweighed by the unfair prejudice that disclosure of his HIV status might cause him. He appealed the trial court’s repeated dismissal of his objections, adding that the trial court did not engage in the proper balancing test before admitting the HIV evidence. The court of appeals dismissed this argument, ruling that, “the trial court necessarily conducted the balancing test by considering and overruling the objection.” However, the record shows that the trial court overruled the objection by merely reciting the required balancing without explaining its application.

Wilson also argued the evidence of his HIV status presented at trial amounted to prosecutorial misconduct. However, because his attorney did not explicitly object at trial to admission of his HIV status on the grounds of prosecutorial misconduct, he waived its preservation on appeal. Exceptions are allowed for, “flagrant and repeated misconduct,” but the court of appeals did not find disclosure of his HIV status rose to that level.

Finally, the court of appeals ruled that Wilson’s attorney did not provide ineffective assistance for failing to object to the fifty-five times HIV or AIDS were mentioned, because the court ruled it tended to show that appellant sexually assaulted the child and was not unfairly prejudicial. Nor did the court of appeals find that a failure to interview the prosecution’s witnesses or prepare expert or other witnesses, without a showing of what such preparation would have revealed, amount to ineffective assistance.