Mullins v. State

699 S.W.2d 346, 1985 Tex. App. LEXIS 12196
CourtCourt of Appeals of Texas
DecidedOctober 17, 1985
Docket13-84-440-CR
StatusPublished
Cited by9 cases

This text of 699 S.W.2d 346 (Mullins v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mullins v. State, 699 S.W.2d 346, 1985 Tex. App. LEXIS 12196 (Tex. Ct. App. 1985).

Opinion

OPINION

NYE, Chief Justice.

Appellant pled guilty to aggravated sexual assault and was sentenced by a jury to eighty-five years in the Texas Department of Corrections. On appeal, he challenges the photographic lineup, the evidence of his prior convictions admitted at trial, the testimony of the victim’s psychologist, and the refusal of the trial court to allow one of the victim’s attorneys to testify. We find no reversible error and affirm.

On May 21, 1984, the complainant left her office in the First City Bank Tower at about 3:30 p.m. and took an elevator alone headed for the parking garage. The elevator stopped on the first floor, appellant entered, punched the “stop” switch, pointed *348 a knife at her and forced her to have sexual intercourse with him. He then fled the scene.

At the punishment stage, the state called a psychologist who testified that the victim suffered from exaggerated fearfulness, withdrawal, hypervigilance, sleep disturbances, nightmares and depression, which are symptoms of a post-traumatic stress disorder she was experiencing. She testified that the victim would probably suffer permanent damage to her sense of personal security.

In appellant’s seventh, eighth and ninth grounds of error, he asserts that the trial court erred in allowing the testimony of the victim’s psychologist because: 1) her testimony bolstered the victim’s uncontroverted testimony; 2) was highly speculative; and 3) was improper because he was not afforded an opportunity to have the victim analyzed by an independent psychologist of his own choosing.

Appellant argues that Dr. Walter’s testimony served only to bolster the victim’s own testimony. Bolstering occurs when a party is allowed to introduce prior consistent statements of an unimpeached witness to enhance the witness’ credibility. Lopez v. State, 643 S.W.2d 431 (Tex.App.—Corpus Christi 1982, no pet.). The record shows that Dr. Walter’s testimony covered different areas than the victim’s. Dr. Walter testified as an expert. She gave her professional opinion of the victim’s disorder, the symptoms, the treatment and her prognosis. The victim testified that she quit her job and, at the time of trial, was still unable to enter an elevator alone. She testified that the rape had affected her family life. The victim believed it would take her a long time to recover. The psychologist’s testimony served as a means to independently prove the nature and extent of the injuries suffered by the victim.

Appellant also complains that Dr. Walter’s testimony should not have been admitted because it was speculative. Evidence is introduced at the punishment phase to enable the jury to intelligently exercise its discretion in determining an appropriate punishment. Williams v. State, 674 S.W.2d 315 (Tex.Crim.App.1984); York v. State, 566 S.W.2d 936 (Tex.Crim.App.1978). The trial court’s decision to admit or exclude opinion testimony will not be 'distrubed unless there is shown a clear abuse of discretion. Steve v. State, 614 S.W.2d 137 (Tex.Crim.App.1981). All of the facts and circumstances surrounding the commission of the offense are admissible before the jury on the question of guilt and may be considered in determining the punishment to be assessed. Williams v. State, 535 S.W.2d 637 (Tex.Crim.App.1976).

A jury hearing a rape case may be unaware of the severe psychological damage done to a rape victim. Even if the victim has not been physically harmed or brutalized by her assailant, she may nevertheless be severely and permanently scarred by experiencing such an invasive and violent attack. Here, the evidence suggests that the “psychological wounds” suffered by the victim were every bit as painful as if they had been physically inflicted by the appellant.

The fields of psychology and psychiatry are not always as precise as those of physical medicine. However, the professionals in those fields are well able to discern symptoms and make exacting diagnoses. Here, while Dr. Walter could not state with absolute certainty the long-range effect that the rape experience had on the victim, her testimony was specific with regard to the victim’s manifest problems and, to the degree possible, her prognosis for the future. We find that the trial court did not abuse its discretion in allowing Dr. Walter to testify.

In appellant’s ninth ground of error, he further asserts that the trial court erred because he was not afforded an opportunity to have the victim analyzed by an independent psychologist. The record reflects that appellant knew that Dr. Walter might testify through his Motion for Discovery and Inspection a list of witnesses. He does not complain that the testimony of Dr. Walter was a surprise. We find nothing in the *349 record to show that he ever requested an independent psychological examination. See Id. at 425. Appellant’s seventh, eighth and ninth grounds of error are overruled.

In appellant’s first ground of error he argues that the trial court erred in overruling his motion to suppress the identification testimony of the victim. He urges that an impermissibly suggestive photographic “spread” was shown to her which tainted a later line-up and the victim’s in-court identification of appellant. First, we note that appellant pled guilty without entering into any type of plea bargain arrangement with the State. The Court of Criminal Appeals in Christal v. State, 692 S.W.2d 656 (Tex.Crim.App.1985) (opinion on motion for rehearing) reiterated the Helms 1 rule which states that where a plea of guilty is voluntarily and understanding^ made, all non jurisdictional defects including claimed deprivation of federal due process are waived. An error in a pretrial identification procedure is not a jurisdictional defect. Ex Parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.1982). We hold that appellant has waived this ground of error, if there was any, by entering into a non-negotiated plea of guilty. Appellant’s first ground of error is overruled.

In appellant’s second ground of error he claims that the trial court erred by permitting the State to introduce evidence of his prior convictions. The judgment on the prior conviction showed convictions on both counts of a multi-count indictment for attempted rape and aggravated assault, arising out of the same transaction in Aransas County. The judgment and order of probation were before the jury only after the trial court deleted any reference to the second count for aggravated assault. Appellant argues that the judgment was either void or voidable and should not have gone before the jury. We agree with appellant’s argument that the judgment convicting appellant of more than one count in one indictment for a non-property offense was erroneous.

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Bluebook (online)
699 S.W.2d 346, 1985 Tex. App. LEXIS 12196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullins-v-state-texapp-1985.