Opinion
No. 05-04-00028-CR
Opinion Issued March 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial Court, Dallas County, Texas, Trial Court Cause No. F03-71770-RQ. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
In this case, Rakesh Perwani challenges his conviction for sexual assault. He contends in six issues that the evidence presented against him was factually insufficient, his rights were violated under the Confrontation Clause of the U.S. Constitution, the trial court abused its discretion in denying his motion for mistrial, the jury charge was egregiously harmful, and the trial court erred by admitting evidence of extraneous offenses. We affirm the trial court's judgment.
Factual Background
The complainant in this case accused appellant of date rape. She and appellant first met over the internet. In February 2002, appellant contacted the complainant through her e-mail dating account with Matchmaker.com. Appellant informed the complainant that he was a doctor in Houston and had gone to school in Fort Worth. The complainant, who lived in Fort Worth, e-mailed a response to appellant stating that she was a divorced mother of two. They continued to communicate by e-mail, and appellant requested the complainant's phone number. He told her his name was Rick. They would occasionally chat via instant messaging through May of that year. At some point, appellant e-mailed the complainant a photograph that he claimed depicted him. After May, the complainant stopped hearing from appellant. On July 4, 2002, appellant called the complainant in the morning. He told her he had gotten a medical residency at a hospital in Dallas and wanted to take her out that evening. He stated that a doctor friend of his was having a pool party and they could go there or go out for drinks. The complainant initially said no. She was having relationship problems with another man and did not feel up to a date. Later that day, however, she changed her mind and called appellant. Appellant told the complainant to bring clothes for the pool party, other clothes in case they went out for drinks, the dress she was wearing in her photograph posted on Matchmaker.com, and some alcohol. He gave her directions to his apartment, and they arranged to meet at seven o'clock. The complainant ate dinner before she left Fort Worth for the date. On the way, she picked up a six-pack of Smirnoff Ice, an alcoholic beverage in twelve-ounce bottles. When the complainant got to appellant's apartment, she realized he was not the man depicted in the e-mailed photograph. She nevertheless decided to stay, and sat down with appellant on his couch. They stayed at his apartment for approximately one hour. While they were there, she drank two of the Smirnoff Ice beverages, and appellant drank four. He repeatedly requested that she put on the dress she had worn for her Matchmaker.com photograph. She eventually agreed and wore the dress for a few minutes. According to the complainant, at one point, appellant received a call on his cell phone and told the person on the line that they were not "going to come." He then told the complainant they were not going to the pool party. He said he wanted to go to the bars in the Lower Greenville area of Dallas. The complainant agreed to go but informed appellant that he was "not gonna get laid." Appellant scoffed and said, "I can get laid anytime I want." The complainant gave appellant her driver's license so she would not have to take a purse, and the two left for Lower Greenville. The complainant estimated that they got to Lower Greenville at approximately 8:15 p.m., but she had not worn a watch that evening. Appellant and the complainant arrived at Zubar. The complainant first ordered a Cape Cod, a drink consisting of vodka and cranberry juice. Then she had another. Between the two Cape Cods, she and appellant had "kamikaze" shots, a drink she had never tried before. After the second Cape Cod, the complainant went to the restroom. When she returned, there was a drink waiting for her that she had not requested. The complainant recalled appellant saying that the drink was an almond martini. He said he thought she would like it. The complainant only drank about half the martini because it was "very bitter." Approximately fifteen minutes later, the complainant began to feel sick. She excused herself to the restroom. On the way, she noticed she was having difficulty walking. After she sat down to use the restroom, she could hardly get back up. The complainant returned to appellant and told him she needed to leave. She was very nauseous and unstable on her feet. Appellant helped her get into his car. On the way back to his apartment, he had to stop the car so the complainant could vomit on the side of the street. The complainant did not remember the drive back to appellant's apartment or arriving there. She remembered that once they were inside, she had to stumble into the bathroom in the master bedroom to vomit again. She vomited in violent heaves that she had never before experienced. Afterward, she lay down on the floor by the toilet. She felt like she could not move. Her limbs were very heavy, and she was disoriented. At some point, appellant came into the bathroom and told the complainant to get up. She told him she could not move, and he repeated his command to get up. Appellant then lifted the complainant under her arms and dragged her to his bed. The complainant remembered lying on the bed. The next thing she remembered was waking up with appellant on top of her. She was not wearing her underwear. He was not wearing any pants, and he was putting his penis in her vagina. The complainant tried to resist appellant but could not do anything because she was pinned by appellant and her arms and legs were still feeling heavy. She told appellant to stop, but she could not recall how loudly she was able to say it. She heard the necklace she was wearing break while appellant was sexually assaulting her. After appellant ejaculated, he got up to go to the bathroom. The complainant then rolled off the bed and crawled to find her underwear on the floor and put it back on. Appellant approached her and asked what she was doing. The complainant accused him of raping her. Appellant denied it. He was still not wearing pants. He asked the complainant where she was going. She stumbled from the bedroom to the couch to retrieve her bag and purse. She then left the apartment. In the parking lot, she stumbled, scattering the contents of her purse. She was hysterical by this point. As she picked up her things, appellant came up behind her and threw her driver's license at her. She got into her car. Then appellant started banging on her window, telling her they needed "to talk." The complainant was still hysterical and crying. She started her car and attempted to leave the apartment complex. She got lost trying to find her way home. She did not go to a hospital that was very near appellant's apartment because she was scared and thought the hospital, which was the one that employed appellant, would protect him. She called her former boyfriend several times on his home telephone and cell phone, but she could not reach him. Then, at approximately 1:30 or 2:00 a.m., she called her ex-husband. She told him that she had been raped and was lost in Dallas. He told her to call the police. The complainant did not do so because she was hysterical and did not know where she was. In addition, she did not think anyone would believe her because she had been drinking. She was still disoriented and confused, and she was "sure" she was not driving well. It took her at least two hours just to find the interstate. Phone records confirmed the complainant's calls to her former boyfriend and ex-husband in the early hours of July 5. The complainant's ex-husband also testified that she had called to tell him she had been sexually assaulted. He stated that, at the time, the complainant was "very distressed" and crying to the point that she was difficult to understand. When the complainant got home, she passed out in her foyer and did not wake up until her ex-husband called in the morning to see if she was okay. She saved her underwear in a Ziplock bag because she had noticed on the ride home that semen was running down her legs. Later that day, the complainant called several friends. Afterward, she called the Rape Crisis Center in Fort Worth but no one was available to speak with her at the time. She e-mailed appellant to ask him why he had sexually assaulted her, but he did not respond. That weekend, she went to Bryan, Texas with her children to see a friend. She talked to her friend about the sexual assault. At trial, the friend confirmed that the complainant had told her about the sexual assault. When the complainant returned to Fort Worth, she dropped off her children at their father's house and went with another friend to appellant's apartment complex so she could record his license plate number. At that point, she still knew appellant only as "Rick." On the following Monday, the complainant left work to see her primary care physician. He took blood and urine samples from her because she told him she felt that she had been drugged before the sexual assault. A laboratory found three metabolites of benzodiazepine in the complainant's urine. The benzodiazepine class of drugs includes Valium, Xanax, and other central-nervous-system depressants. According to the complainant, she had taken a Valium on Saturday, June 29 before the Thursday, July 4 sexual assault; she had been given the Valium by her former boyfriend because they were traveling and she could not sleep. She denied taking Valium or any other drug containing benzodiazepine from June 30 to her July 8 doctor appointment. In fact, she denied taking any drug other than Lipitor and Levothroid between July 4 and July 8, 2002. The lab technician who analyzed the complainant's urine testified that he would not expect a dose of Valium taken on June 29 to remain in the complainant's system until July 8. The technician testified that if a person took a benzodiazepine late on July 4, he would "absolutely" expect to see evidence of the benzodiazepine in the person's urine on July 8. The technician also testified that it is "very unusual" for benzodiazepine to cause nausea and vomiting. The complainant declined to have her primary care doctor perform a vaginal exam because she wanted to see her gynecologist for that. The next day, she went to the police and saw her gynecologist. Her gynecologist diagnosed her as having the sexually transmitted disease trichomoniasis. Before the sexual assault, she had not been experiencing symptoms of a sexually transmitted disease. The complainant testified that at the time of the sexual assault she had not been taking birth control pills. She said her former boyfriend had always used a condom, and he was the only person she had been having sex with. The complainant's primary care doctor, however, testified that she told him at her office visit on July 8 that she had been taking birth control pills. Her gynecologist testified that he had prescribed birth control pills for the complainant earlier in the year, but he did not know whether she was taking them at the time of the sexual assault. At the police station, the complainant gave a detective the underwear she had saved in a Ziplock bag. Over time, the police set up the complainant to try to record a telephone conversation with appellant, but appellant would never answer when the complainant called. On police instructions, she left him a message falsely claiming she was pregnant and needed to talk to him, but he did not return the call. The complainant's underwear tested positive for the presence of seminal fluid. DNA testing revealed matches with the complainant's DNA and with the DNA of appellant. The probability of finding another person with the same DNA profile as appellant in the Caucasian population was one in 395 quadrillion. The probability of finding another person with the same DNA profile as appellant in the East Indian population (the population of appellant's ethnicity) was one in 160 quadrillion. Another witness named Ashley also testified about an encounter with appellant. She, too, became acquainted with appellant through an internet dating service. At the time, she was only nineteen years old and living in Plano, Texas. She was not acquainted with the complainant. She corresponded with appellant — who identified himself as an Italian doctor named Rick — four or five times over a two-week period starting in January of 2003, at first by e-mail and then by phone. Appellant sent her the same photo he sent the complainant, claiming he was depicted in it; she, too, stated that he was not actually pictured in the photograph. Eventually, appellant and Ashley agreed to meet the Saturday of Super Bowl weekend. Before Ashley got to appellant's apartment for their date, she met her father for dinner and had some bread sticks. She did not drink any alcohol. She got to appellant's apartment at approximately eleven o'clock p.m. She stayed at the apartment long enough to drink less than a glass and a half of wine. They left for the Lower Greenville bars after midnight. Appellant told her he knew people at the bars so she would be able to get alcohol despite her age. At the first bar, appellant ordered Ashley a "walnut or hazelnut" martini. She agreed to try it, but she did not like the drink and returned it to appellant. She ordered a chocolate martini and drank it while she talked with appellant. A man at the bar bought a round of drinks for appellant and her, so she had at least part of a beer before they left for Zubar. When they got to Zubar, Ashley went to the restroom before meeting appellant at the bar. Without Ashley asking, appellant ordered her a lemon-flavored drink in her absence. She was still drinking the lemon-flavored drink at the bar's two a.m. closing time. She put down the drink, which was three-fourths' gone. Appellant urged her to finish it because he had "just bought it." She remarked to someone overhearing the conversation that appellant was a "tightwad" because he was making her finish the drink. She did not finish the drink, and they left for his apartment. When they got to appellant's apartment, Ashley felt very sick and asked where the bathroom was. As soon as she got to the bathroom, she began to vomit. The sickness felt noticeably different from any nausea she had ever felt from alcohol in the past. When appellant walked into the bathroom, she asked him to call her roommate to pick her up because she knew she could not drive home. Appellant argued with her, saying that he would take care of her. She refused and insisted that appellant call her roommate. She got very upset with appellant but could not move from the toilet because she was "violently ill." Appellant told her to be quiet because he did not want to wake his neighbors. She remembered arguing with appellant with her head on the toilet. The next thing she remembered was cold water running on her in appellant's shower. She was lying on the bathtub bottom, still dressed. As she awoke, she told appellant to turn the water off because it was very cold. Appellant got mad and stormed out of the bathroom. She crawled out of the bathroom in her wet clothing to try to find her cell phone. The apartment was dark. She was disoriented and shaking from cold. She could not walk. When she got to her purse, she found that her cell phone's battery had died. She then crawled into a bedroom, pulled a blanket off a bed, wrapped up in the blanket, and fell asleep on the floor at the foot of a bed. She could not recall for certain whether she had removed her clothing before wrapping up in the blanket. Ashley awoke to the sound of a phone ringing. When she came to, she realized she was naked in a bed with appellant. He handed her the phone, because her roommate was calling to check on her. It was one o'clock in the afternoon. Her pelvic area and legs were sore. From the way her body felt and from the smell she knew appellant had sexually assaulted her. Appellant asked her if she remembered much of the previous night. She told him she remembered everything because she wanted him to believe she knew everything that had happened to her. She gathered her wet clothing from where it was draped over the bathtub. She had not put the clothing there. She put on her wet pants and borrowed a shirt from appellant. She left, indicating to appellant that they would talk again because she just wanted to get out of his apartment as soon as possible. That same day, she went to a clinic in Plano to be examined. Personnel there said that because the incident had occurred in Dallas County, she needed to go to Parkland Hospital. She went to Parkland Hospital in the late afternoon and stayed in the waiting room for four hours. She gave a statement to a police officer and then left. She returned to Parkland Hospital the next day. She gave a police detective the clothing she had worn at appellant's apartment. She submitted to a pelvic exam and gave urine, blood, and hair samples. The urine tests administered to Ashley did not show the presence of any drug. The toxicologist who analyzed Ashley's urine testified, however, there were certain drugs, when combined with alcohol, that could have had the effects that Ashley experienced and be eliminated from her system in two days. The toxicologist described, for instance, the central-nervous-system depressant GHB, gamma-hydroxybutyric acid, which he said is commonly used in date-rape situations. That drug typically involves more vomiting than other central nervous system depressants and is eliminated from the person's body in nine to twelve hours. The toxicologist explained that, in sufficient doses and combined with alcohol, benzodiazepines can cause unconsciousness, vomiting, loss of motor coordination, loss of motor skills, and amnesia. No seminal fluid was found in the vaginal exam of Ashley at Parkland Hospital, and her vaginal area was not bruised or torn. The doctor who examined her explained that these facts did not rule out a sexual assault because the exam was more than eighteen hours after the alleged assault and Ashley had showered and urinated. The doctor explained that they generally do not find physical evidence of a sexual assault in a sexually active woman, particularly when the woman was unconscious during the event. For the defense, one of appellant's doctor friends testified that he remembered appellant coming to his July 4, 2002 pool party with a date. He stated on cross-examination that appellant has never used the name Rick and is not from Italy. At the time of appellant's arrest, a police officer called appellant Rick, and appellant defensively stated that he did not "go by that." Another of appellant's friends, a bartender and part-owner of Zubar, testified that he remembered appellant being at Zubar with a date on July 4, 2002. He claimed appellant and his date were being so affectionate with each other that he joked they should "get a room." The Zubar owner testified that the bar has approximately 1,200 patrons per month. Aside from his memory of appellant's date with the complainant, the owner recalled only two of appellant's other dates: a blond woman and Ashley. The bills from appellant's dates with both the complainant and Ashley contained orders for drinks that the women claimed they never drank and did not recall appellant drinking.Discussion
In his first issue, appellant complains the evidence against him is factually insufficient. He particularly contends the complainant was not credible due to her "implausible, antagonistic and at times mutually exclusive depictions of her drinking behavior," the fact that her symptoms were consistent with consuming too much alcohol as well as with being drugged, and the implausibility of her losing and regaining motor control in the way she described. We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be factually insufficient when, considered by itself, the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or when contrary evidence exists that is strong enough the beyond-a-reasonable-doubt standard could not have been met. See id. at 484-85. Here, the complainant claimed that on her date with appellant, she became more incapacitated than she had ever been from alcohol in the past. She awoke naked in bed with appellant sexually assaulting her. His DNA was found on her underwear. How she managed to leave the apartment after having difficulty escaping the sexual assault is unclear. But immediately afterward, she tried to call people to help her. She specifically told her ex-husband that she had been raped. Moreover, Ashley testified that her date with appellant had also resulted in lost consciousness and a sexual assault. It was the jury's role to weigh the credibility of the complainant and the other witnesses at trial, to believe or disbelieve the witnesses' testimony, and to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). After viewing the entire record, we conclude the evidence is factually sufficient to support appellant's conviction for sexual assault. We resolve appellant's first issue against him. In his next issue, appellant complains the trial court violated his rights under the Confrontation Clause when it disallowed cross-examination on the subject of what anti-anxiety medications the complainant possessed in the time period between her date with appellant and her urine test. The Confrontation Clause is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996). The scope of appropriate cross-examination is broad; a defendant is entitled to pursue all avenues reasonably calculated to expose a motive, bias, or interest for the witness to testify. Id. The rule encompasses all facts and circumstances that, when tested by human experience, tend to show that a person may shade her testimony for the purpose of helping establish one side of the cause only. See id. at 497-98. A trial judge may, however, limit cross-examination when the cross-examination is designed to annoy, harass, or humiliate the witness. Id. at 498. At trial, the complainant claimed she had not taken any medications, other than Lipitor and Levothroid, between July 4 and July 8, 2002. Appellant wanted to cross-examine the complainant about what prescription anti-anxiety medications were in her possession during that time frame. The apparent purpose of this line of questioning was to attempt to show that the complainant's access to anti-anxiety medications created an alternative explanation for the benzodiazepine in the complainant's system, other than the possibility that appellant drugged her during their date. The State objected on the basis of relevancy and prejudice, and the trial court prevented appellant from pursuing the line of questioning. We readily see why the trial court in its discretion would disallow appellant from cross-examining the complainant about what anti-anxiety medications she possessed, where the central issue in the case was whether the complainant consented to sexual intercourse with appellant. But even assuming the trial court erred in excluding appellant's cross-examination, we conclude the record before us does not show appellant was harmed in such a way that requires reversal of the trial court's judgment of conviction. See Tex.R.App.P. 44.2(a). We draw this conclusion because even if appellant established that the complainant had ready access to anti-anxiety medications, that fact would not expose a motive, bias, or interest for the complainant to testify that she did not consent to sexual intercourse with appellant. Moreover, the complainant's mere possession of anti-anxiety medications would not contradict her testimony that she had not taken any medications other than Lipitor and Levothroid because it would not show she actually ingested the other medications during the relevant time frame. Regardless of how the complainant became incapacitated before the sexual assault, the complainant's undisputed testimony, supported by Ashley's description of a very similar encounter with appellant, shows she did not consent to sexual intercourse with appellant. Even if the complainant had admitted possessing benzodiazepine drugs during the relevant time frame, this testimony would have had little impact on her credibility before the jury on the question of consent. Her testimony was unequivocal, and uncontradicted, on this matter. Furthermore, the complainant admitted she had taken Valium belonging to her former boyfriend on June 29 when they were traveling together several days before her encounter with appellant. Valium belongs to the benzodiazepine class of anti-anxiety drugs, and, at her visit to her primary care physician, the complainant tested positive for three categories of benzodiazepine. The results were consistent with someone taking Valium between July 4 and July 8. The complainant's testimony revealed that she was still close enough to her former boyfriend to call him immediately after leaving appellant's apartment and, additionally, to see him the week of July 15. The jury, had it chosen to disbelieve the complainant's statement that she had not taken a benzodiazepine drug from July 4 to July 8, could have also chosen to disbelieve when she first saw her former boyfriend after the sexual assault. Thus, it could have determined that even if she did not possess Valium in her own medicine cabinet, she had ready access to it through the former boyfriend. Similarly, the complainant's testimony showed she was completely comfortable taking prescription drugs that were not actually prescribed for her. Again, had the jury chosen to disbelieve her testimony denying she had taken benzodiazepine drugs between July 4 and July 8, it could have also believed she got access to the drugs from someone else. The trial court's exclusion of evidence possibly showing the complainant had access to benzodiazepine drugs in her own medicine cabinet was not harmful to appellant because other evidence showed she may well have had access elsewhere. Finally, we note the only evidence in the record before us showing that the complainant might have personally possessed an anti-anxiety benzodiazepine medicine was a medical record admitted at trial for record purposes only. It showed the complainant had told her primary care physician she occasionally took Xanax for anxiety. It showed also that she had previously taken an antidepressant, which the complainant's doctor again prescribed following the sexual assault. But no other evidence was admitted at trial to indicate the complainant possessed any anti-anxiety medications other than Xanax. Notably, the benzodiazepine metabolites found in the complainant's urine could not have come from Xanax or antidepressants. Thus, nothing in the record before us indicates that, if appellant had been permitted to cross-examine the complainant on the contents of her medicine cabinet during the relevant time period, the evidence would have shown the complainant personally possessed benzodiazepine drugs that could have been the source of the benzodiazepine found in her urine. Under the facts presented here, we conclude appellant was not harmed by the trial court's decision to exclude cross-examination about the anti-anxiety medications the complainant may have personally possessed during the relevant time frame. Accordingly, we resolve appellant's second issue against him. In his third issue, appellant complains the trial court abused its discretion in denying his motion for mistrial. When the part-owner and bartender of Zubar testified for the defense, he claimed he recalled appellant and the complainant being present at the bar on the night of the alleged offense. On cross-examination, the State asked the owner if he knew why appellant "would tell the [police] he was not there with a date that night." Appellant's objection to the question was sustained, and the trial court instructed the jury to disregard the question. The trial court, however, overruled appellant's motion for mistrial. We review a trial court's denial of a mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Id. An improper question will seldom call for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Id. In evaluating whether prosecutorial misconduct warranted a mistrial, we must balance three factors: (1) the severity of the misconduct, (2) any measures adopted to cure the misconduct, and (3) the certainty of conviction absent the misconduct. See Ramon v. State, No. PD-2030-03, 2004 WL 2896254 at *1 (Tex.Crim.App. Dec. 15, 2004). In this case, appellant did not testify at trial, and the State did not put on evidence that he had given any statements to police. We agree with the trial court that the prosecutor's question assumed facts not in evidence. Nevertheless, the trial court immediately sustained appellant's objection and instructed the jury to disregard the question. The prosecutor promptly moved on to a different topic. Later at trial, testimony showed appellant denied to police that he was called Rick, although both the complainant and Ashley stated that he identified himself as Rick to them. He provided both women with a photograph he claimed depicted him, but even appellant's doctor friend admitted appellant did not resemble the man in the photograph. He told Ashley he was Italian, but he is not. In addition, the complainant's undisputed testimony in the case showed she woke to find appellant sexually assaulting her. She told him to stop, but he did not. Based on the entirety of the record before us, we conclude the trial court did not abuse its discretion in denying appellant's motion for mistrial. We resolve appellant's third issue against him. In his fourth issue, appellant contends the trial court's charge to the jury on punishment was fundamentally defective in its instructions on the applicable parole law. The jury charge contained the following instruction on the law of parole:You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles of the State of Texas and are no concern of yours.Under the law applicable to appellant's case, the code of criminal procedure mandates the following instruction on the law of parole:
Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole. Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted. It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities. You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004-05). Appellant did not object to the trial court's failure to include the mandatory statutory instruction in the jury charge. Thus, assuming the trial court erred by failing to give the instruction mandated by the code of criminal procedure, we may reverse only if we determine the instruction given egregiously harmed appellant. See Jiminez v. State, 32 S.W.3d 233, 237-38 (Tex.Crim.App. 2000). Appellant contends a proper parole instruction would have informed the jury that he would not be eligible for parole until he had served one half his sentence, without consideration of good time credit earned. Additionally, appellant contends the instruction given failed to inform the jury it could consider the law of parole. The parole instruction in appellant's case did not mislead the jury about the application of parole law to appellant's case. Had it been given, the statutory instruction appellant now contends was mandated in his case would have instructed the jury that it could not consider the application of good conduct time or how parole law might be applied in his case. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a). Jury arguments from both parties on punishment discussed whether appellant should be given probation, not how much prison time he was eligible to receive. We conclude the facts of appellant's case do not show he was egregiously harmed by the trial court's instruction. Cf. Atkinson v. State, 107 S.W.3d 856, 860 (Tex.App.-Dallas 2003, no pet.) (holding appellant not egregiously harmed by statutory jury charge on parole and good conduct time, despite fact that appellant not eligible for good conduct time). We resolve appellant's fourth issue against him. In his two final issues on appeal, appellant complains the trial court abused its discretion when it admitted into evidence extraneous offense testimony. He specifically complains the testimony about his date with Ashley constituted inadmissible extraneous offense evidence and the testimony suggesting he may have drugged her was without an adequate evidentiary foundation, was extremely prejudicial, and unconstitutionally shifted the State's burden of proof. We review rulings on the admissibility of evidence under an abuse of discretion standard. Carter v. State, 145 S.W.3d 702, 707 (Tex.App.-Dallas 2004, no pet.). If a trial court's evidentiary ruling is reasonably supported by the record and is correct under any applicable theory of law, we must uphold it. Id. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show he acted in conformity with that character. Tex. R. Evid. 404(b). Nevertheless, it may be admissible for other purposes, such as proof of motive, intent, plan, knowledge, or absence of mistake or accident. See id. Here, the critical issue in the case against appellant was whether the complainant consented to sexual intercourse with him. DNA evidence showed appellant's semen was on the complainant's underwear. Given the amount of alcohol the complainant consumed, it was critical for the State to show appellant had acted without the complainant's consent. The complainant stated that she suspected she had been drugged, possibly in a drink she had not requested. She testified that, at the very least, appellant took advantage of her alcohol intoxication to sexually assault her. She did not immediately call police when she left appellant's apartment, but she did call friends and told them she had been raped. Ashley's date with appellant was strikingly similar to the complainant's. She, too, met appellant through the internet. She knew him as "Rick" — a name he did not otherwise use. When she got to his apartment, she, like the complainant, discovered that he was not the man pictured in the photograph he had e-mailed. Evidence of appellant's date with Ashley showed he had, on another occasion, given a date a drink she had not requested. Like the complainant, Ashley also became so violently ill she later suspected she had been drugged. Like the complainant, she became so sick that she could not move and lost consciousness. Ashley also believed she had been sexually assaulted. In her case, she believed appellant had sexually assaulted her after he moved her from his floor to his bed while she was still unconscious. On the day she left appellant's apartment, she talked to police and waited over four hours trying to get a rape exam to prove her date with appellant had resulted in a sexual assault. Appellant's actions with Ashley show appellant intended, and possibly planned, his sexual assault against the complainant. The extraneous offense supports the complainant's assertion that she did not consent to the admitted sexual act. It shows appellant was aware of the complainant's lack of consent and disregarded it. It shows he had a motive for the date from the start. For all these reasons, we conclude the trial court did not abuse its discretion in admitting into evidence testimony about appellant's date with Ashley. We resolve appellant's fifth issue against him. Lastly, in his sixth issue, appellant complains that admission of evidence showing appellant could have drugged Ashley was without an adequate evidentiary foundation, was extremely prejudicial, and unconstitutionally reduced the State's burden of proof. At trial, the toxicologist who tested Ashley's urine testified that certain drugs could cause symptoms of vomiting, nausea, dizziness, inability to walk, and loss of consciousness in a person and still be out of the person's system faster than the amount of time that passed between Ashley's last drink and her drug test. Appellant objected that such a question posed to the toxicologist "has to be based on the known drug," was "not based on facts in evidence," and was an "[i]mproper hypothetical." The trial court overruled appellant's objection. The toxicologist later testified, without objection, that GHB is a potent central-nervous-system depressant that has been used in sexual assaults. GHB typically involves more vomiting that other central-nervous-system depressants and is not detectable in the blood or urine after nine to twelve hours. At trial, appellant did not complain that the drug evidence was prejudicial or reduced the State's burden of proof. He therefore has not presented these complaints for appeal. See Tex.R.App.P. 33.1(a). Appellant did object that the testimony was not based on facts in evidence and was an improper hypothetical. The facts in evidence showed, however, that Ashley ingested several alcoholic drinks during her date with appellant yet persisted in a belief that appellant had drugged her. She testified that she had previous experience with nausea from alcohol and explained that the nausea following her date with appellant was distinctly different. Evidence showed she experienced symptoms that could have resulted from alcohol alone. Without evidence showing certain drugs existed that could have caused her condition when combined with alcohol and be eliminated from her system before the blood test, the jury might have been unfairly prejudiced to believe Ashley was wrong in her belief about being drugged and therefore should not be believed at all. This relevant evidence helped the jury understand the evidence before it. See Tex. R. Evid. 401, 702. Accordingly we resolve appellant's sixth issue against him. We affirm the trial court's judgment.