Brown v. State

692 S.W.2d 146, 1985 Tex. App. LEXIS 6633

• Court: Court of Appeals of Texas
• Decided: May 16, 1985
• Docket: 01-84-0260-CR
• Status: Published

Opinions

OPINION

DUNN, Justice.

This is an appeal from a conviction for the offense of rape. Trial was to a jury who found appellant guilty, found the enhancement paragraph of the indictment against him to be true, and assessed punishment at 35 years imprisonment.

Complainant testified that she received a phone call on Friday, August 26, 1983, from an individual calling himself “Sean.” The caller inquired about the night-life in Bryan-College Station and offered to sell her a coupon booklet. The parties conversed for approximately 45 minutes, principally about their respective personal interests and hobbies. Complainant received several more calls from “Sean” over the weekend, in which he attempted to arrange a meeting with her. On Sunday night, August 28, 1983, “Sean” succeeded in convincing complainant to come to his apartment. She testified that she arrived there about 9:30 p.m., and was shocked to find that “Sean” was a black man. He pulled complainant into his apartment, and when she screamed, stated, “I don’t go for that.” He then forced her to have sexual intercourse with him.

Appellant, taking the stand in his own defense, testified that complainant had come to his apartment on the evening of their initial telephone conversation, at which time they drank wine and talked for about an hour. He said that complainant then went home, leaving behind her address and telephone number. Appellant testified this was the last time he saw complainant before the trial.

A rape kit established that complainant had sexual intercourse during the 24 hours in question. No witnesses were brought forward who could place either appellant or complainant at the scene of the alleged offense on Sunday night.

Appellant contends in his first four grounds of error that the trial court reversibly erred in overruling his challenges for cause to four prospective jurors, Mable R. Pearce, Donald C. Campbell, Willie Mae McConnell, and Julius Skrivaneck. We will address these four grounds of error together.

The record reflects that appellant properly preserved error when his challenges to these jurors were denied. Williams v. State, 565 S.W.2d 63, 65 (Tex.Crim.App.1978). On appeal, he contends that he was forced to accept four objectionable jurors whom he would have stricken with an additional peremptory challenge due to their inability to consider the full range of punishment for the offense. During initial voir dire, twelve prospective jurors, including the four named above, indicated an unwillingness tó assess the minimum punishment for the offense of rape. Each of these prospective jurors was separately questioned outside of the hearing of the venire, and the trial judge excused eight of them, but refused to excuse the four jurors named above.

The trial court’s decision to overrule a challenge for cause must be reviewed in light of all the answers that the prospective juror gave during voir dire questioning. Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App.1982). A careful review of the voir dire testimony of the four prospective jurors complained of, i.e., Pearce, Campbell, McConnell, and Skrivaneck, reveals that each could consider the full range of punishment for the offense. Ven-ireperson Pearce, in addition, went so far as to say that she would “serve to the best of my ability and try to remove any of this and listen to only what I hear, to make my decision. I consider myself a pretty intelligent person. So for that reason, I am going to remove any preconceived ideas that I have.” Venireperson Campbell, when asked if he could consider the full range of punishment, answered in no uncertain terms, “Right.” When asked the same question, Venireperson Skrivaneck answered, “Right, and base it on the facts,” and Venireperson McConnell stated that she would listen to all the evidence and not close her mind to the lower end of punishment or the upper end of punishment.

We find that the record does not support appellant’s contention that the four jurors named on appeal could not give the minimum punishment and were subject to challenge for cause, pursuant to Tex.Code Crim.P.Ann. art. 35.16(c)(2) (Vernon 1966). Appellant’s first four grounds of error are overruled.

Appellant’s fifth ground of error asserts the trial court committed reversible error by failing to grant appellant’s motion to quash the enhancement paragraph of the indictment, due to a fatal variance between the date of the prior conviction as alleged and that date as proven.

Upon comparison with the penitentiary packet submitted at the punishment phase of trial, the sentencing date alleged in the indictment was shown to be incorrect. However, the proof revealed the necessary succession of offenses and final convictions. It is well settled that it is not necessary to allege prior convictions for the purpose of enhancement with the same particularity as must be used in charging the original offense. Cole v. State, 611 S.W.2d 79 (Tex.Crim.App.1981).

Appellant cites Hollins v. State, 571 S.W.2d 873 (Tex.Crim.App.1978), in which the Court of Criminal Appeals affirmed a judgment and stated that allegations of prior convictions for purposes of enhancement should include the name and number of the court in which conviction was obtained, the time of the conviction, and the nature of the offense. However, the Court also noted that it is not necessary to allege the dates on which the convictions became final so long as the proof at trial showed the necessary succession of offenses and the fact that the convictions for each became final before the occurrence of the next offense. Burton v. State, 493 S.W.2d 837 (Tex.Crim.App.1973). In the case at bar, the record clearly shows that the previous conviction became final on January 4, 1980, well before the offense in question occurred.

Appellant failed to show that the error in the sentencing dates shown in the indictment prevented him from finding the conviction record or from making adequate preparation for trial. Cole, supra; Hol-lins, supra. Appellant’s fifth ground of error is overruled.

Appellant’s sixth ground of error avers the trial court committed reversible error by overruling appellant’s objection to the admission of evidence concerning trauma suffered by complainant as a result of the rape.

In order to establish appellant’s guilt of the offense of rape, the state was required to prove the allegations of the indictment that appellant had sexual intercourse with complainant “unlawfully, intentionally, and knowingly, by threats and force, and without her consent.” (Emphasis added.) Contrary to ■ appellant’s argument, the issue of consent is not only raised by the evidence, but was emphasized by the particular circumstances of the case. Indeed, the issue of consent was the central, if underlying, issue since the evidence showed that complainant voluntarily presented herself at appellant’s apartment. Thus, the issue of lack of consent was ever present during the state’s case-in-chief, and the state was entitled to offer relevant proof tending to show that complainant had not consented to engage in the act of sexual intercourse.

In an enlightened society, there is no longer a question that sexual intercourse perpetrated by threats and force is a violent act. Our courts have consistently admitted evidence showing the injuries sustained by the victim as a result of violence. Hafti v. State, 487 S.W.2d 745 (Tex.Crim.App.1972); Robinson v. State, 457 S.W.2d 572 (Tex.Crim.App.1970); Maxwell v. State, 362 S.W.2d 326 (Tex.Crim.App.1962); Mack v. State, 307 S.W.2d 588 (Tex.Crim.App.1957). Indeed, proof of the injuries sustained by a victim may be the best evidence of an assaultive crime. Levell v. State, 453 S.W.2d 831 (Tex.Crim.App.1970). Similarly, our courts have long recognized that evidence of subsequent emotional distress and shock may be properly considered in determining whether sexual intercourse occurred as a result of threats or force. Wood v. State, 80 Tex.Crim. 398, 189 S.W. 474 (1916); Burge v. State, 73 Tex.Crim. 505, 167 S.W. 63, 66 (1914).

In Wood, the court held there was no error in permitting testimony that the complainant was in a nervous condition for some time after the rape and that she continued to have nervous crying spells for a month or more. The court found this to be proper evidence of the severity of the shock to the victim’s mental and physical nature. 189 S.W. at 476-77.

There is no set criteria to determine whether force has or has not been applied in any particular rape case, and the facts of each individual case must determine the issue. Brown v. State, 576 S.W.2d 820, 823 (Tex.Crim.App.1978); Bundren v. State, 152 Tex.Crim. 45, 211 S.W.2d 197 (1948). The nature and seriousness of the victim’s injuries are admissible as a part of the state’s case. Maxwell, 362 S.W.2d 326.

Emotional scars are much more difficult to prove than physical scars. The proof required to show “emotional trauma” looks to the effect of the trauma on the complainant as evidenced by her physical manifestations. The testimony of the state’s expert witness, Dr. Simpson, which was admitted without objection, tied complainant’s emotional trauma to the rape “as a direct reaction to a specific traumatic event.” The probative force of such evidence sheds light on the element of consent, as well as the severity of the force used by appellant.

It was the duty of the trial court to weigh the probative value of the evidence of complainant’s emotional trauma against the prejudicial effect of its admission, and in the exercise of its discretion, to decide whether the evidence should be admitted or excluded. See Bush v. State, 628 S.W.2d 441, 444 (Tex.Crim.App.1982); Ruiz v. State, 579 S.W.2d 206 (Tex.Crim.App.1979). Unless the trial court abused its discretion, this court will not disturb its judgment. Williams v. State, 535 S.W.2d 637 (Tex.Crim.App.1976); Knight v. State, 635 S.W.2d 650, 652 (Tex.App.—Fort Worth 1982, no pet.). Under the particular circumstances presented, we conclude that appellant has not demonstrated that the trial court abused its discretion in admitting such evidence.

We are further of the view that any error in the admission of such testimony was waived and/or cured by defense counsel’s failure to object to similar testimony later elicited. Although defense counsel did timely object to certain portions of the testimony regarding complainant’s emotional injuries when it was first elicited, he did not obtain a running objection to such testimony, and complainant later testified, without objection: that she had attempted suicide twice, the first time a month after the rape; that she was hospitalized both times; and that she had had continuing counseling since the rape. It is defense counsel’s responsibility to object every time allegedly inadmissible evidence is offered, and when counsel objects to certain inadmissible testimony, but then permits similar evidence to come in without objection, the complaint is deemed cured. Moore v. State, 675 S.W.2d 348, 350 (Tex.App.—Fort Worth 1984, no pet.); e.g., Brown v. State, 640 S.W.2d 275, 280 (Tex.Crim.App.1982); Brasfteld, v. State, 600 S.W.2d 288, 296 (Tex.Crim.App.1980).

We overrule appellant’s sixth point of error.

Appellant’s seventh ground of error asserts the trial court reversibly erred in overruling appellant’s motion for mistrial after the state failed to reveal exculpatory evidence in violation of the discovery order entered by the trial court.

The evidence complained of by appellant consisted of a police report made as a result of the photograph identification procedure, which indicated that complainant identified photo # 4 as the man who had raped her. Appellant’s photo was # 3. There is no evidence to suggest that the police or the state willfully suppressed this report, or that counsel for the state was aware of the discrepancy.

Appellant argues that reversible error occurs when the prosecutor negligently or inadvertently fails to disclose evidence which may exonerate the accused or which may be of material importance to the defense, even though not offered as testimony at the trial, citing Means v. State, 429 S.W.2d 490 (Tex.Crim.App.1968). However, the test to determine if appellant has been denied due process of law is whether the withheld evidence is material, so that its omission deprives the accused of a fair trial. Fitzpatrick v. State, 632 S.W.2d 935 (Tex.App.—Fort Worth 1982, pet. ref’d).

Here, Officer Chavarria, who was assigned to the entire investigation of this case, testified that he was present at all times during the photograph identification procedure and that complainant never identified anyone except appellant. It is established in the record that the “exculpatory evidence” consisted of a typographical error, and as such, could not have exonerated appellant, been of material importance in his defense, or affected the outcome of the trial. Appellant’s seventh ground of error is overruled.

Appellant’s eighth ground of error contends the trial co,urt reversibly erred in overruling appellant’s objection to the admission of a writing by appellant which was withheld by the state in violation of the discovery order entered by the trial court.

The state attempted to prove, both by testimony and by introduction of physical evidence, that appellant had a continuing practice of sexually soliciting women over the telephone. Pages from a telephone book, which contained marks made by appellant next to women’s names, were admitted into evidence. Appellant contends that the state violated the discovery order by withholding this telephone directory.

The telephone book was given to counsel for the state by a defense witness after the trial had begun. Appellant had been living with this witness at the time of the alleged offense and the telephone directory was her property. This witness was hostile to the defense and informed defense counsel, before trial, that she would tell the district attorney’s office about the existence of the telephone book; at that time, the witness also made defense counsel aware of the incriminating nature of appellant’s marks in the telephone directory. She did not inform defense counsel that she would turn the directory over to the district attorney’s office. Defense counsel chose not to ask his witness for the telephone book and run the risk of antagonizing her further.

The purpose of discovery is to prevent surprise at the trial. Under the above circumstances, appellant cannot claim that he was surprised by the production of this evidence. Although the state had a continuing duty under the discovery order, Granviel v. State, 552 S.W.2d 107 (Tex.Crim.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977), any error shown here is harmless. Appellant’s eighth ground of error is overruled.

The appellant’s ninth ground of error asserts the trial court committed reversible error by overruling appellant’s objection to the admission of evidence of an extraneous offense.

During trial, the state called a witness who testified that she had received several phone calls of a personal nature from appellant. The witness eventually agreed to meet appellant, but left without getting out of her car when she saw that he was a black man.

This testimony is not evidence of an extraneous offense. Appellant had committed no offense in calling the witness on the telephone, and the witness testified that she “did not think nothing of it” when defense counsel asked why she met with appellant after he had told her he was masturbating during one of their conversations. However, the testimony of this witness was admissible to impeach appellant’s testimony that he did not attempt to solicit women by use of the telephone and that he telephoned them only in the course of his employment with a telephone marketing service. Appellant’s ninth ground of error is overruled.

Appellant filed five pro se grounds of error, in addition to the brief filed by his counsel on appeal. There is no right in Texas to hybrid representation. Landers v. State, 550 S.W.2d 272, 280 (Tex.Crim.App.1977) (op. on reh’g); Wendt v. State, 664 S.W.2d 730 (Tex.App.—Waco 1983, pet. ref’d). We thus decline to review the pro se grounds of error.

The judgment of the trial court is affirmed.

COHEN, J., dissents.