Shaw v. State

764 S.W.2d 815, 1988 Tex. App. LEXIS 3407, 1988 WL 149051
CourtCourt of Appeals of Texas
DecidedDecember 23, 1988
Docket2-87-145-CR
StatusPublished
Cited by5 cases

This text of 764 S.W.2d 815 (Shaw 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
Shaw v. State, 764 S.W.2d 815, 1988 Tex. App. LEXIS 3407, 1988 WL 149051 (Tex. Ct. App. 1988).

Opinions

OPINION

KELTNER, Justice.

Richard Dale Shaw appeals his conviction by a jury of the offense of aggravated sexual assault. See TEX.PENAL CODE ANN. sec. 22.021 (Vernon 1989). The jury found that he used and exhibited a deadly weapon in the commission of the offense and assessed his punishment at sixty-seven years in the Texas Department of Corrections.

Shaw does not question the sufficiency of the evidence. However, he brings four points of error contending the trial court erred in admitting the testimony of Jane Bingham, an expert witness called for the State, and ruling that the prosecutor’s jury argument was not a comment on his failure to testify. We affirm the conviction of the trial court.

The victim testified that Shaw appeared at her house after her husband had left for work, but before she had taken her children to school. The victim was acquainted with Shaw because he was the husband of her best friend. The victim testified that Shaw had raped her before. She told Shaw’s wife of the previous rape, but did not report it to the authorities.

The victim testified that she repeatedly asked Shaw to leave but he refused. Finally, she went into her bedroom and locked the door so she could call Shaw’s wife. However, she heard Shaw talking to her children, became frightened for their safety and came out of the bedroom.

[817]*817The victim testified she told her children to get in the car so she could take them to school. Shaw also got into the car. When they arrived at the school, the victim’s two sons got out of the car. When the victim tried to get out of the car, Shaw put his hand on her knee and squeezed her leg. As a result, she did not get out of the car.

Shaw told her to return to her home. Upon arriving, Shaw guided her to the front door and instructed her to unlock the door. When she moved too slowly, Shaw grabbed her wrist, stuck the keys in the lock and unlocked the door. After they entered the house, Shaw locked the door. He requested more coffee and the victim complied.

Thereafter, Shaw slammed his coffee cup on the table, stood up and rushed the victim. After a struggle, Shaw carried her to the bedroom. Shaw directed her to undress and when she refused, he forcibly removed her clothes. When she refused to engage in oral sex, he took a gun out out of his jeans, pointed it at her head, and threatened to kill her if she failed to comply with his demands. He also displayed a knife and told her he had been to the pen twice and knew how to cut people without killing them. Shaw forced the victim to engage in oral, rectal, and vaginal sexual activity. During the attack, Shaw repeatedly directed the victim to do certain things, and inquired into her sex life with her husband. He also produced a dildo and a tube of K-Y jelly and used both on the victim.

After the attack, the victim picked up the gun while Shaw was in the bathroom. However, she could not determine how to use the gun and Shaw took it from her. While Shaw was in the house, the victim called her sister. However, she testified she could not talk about the sexual assault because of her fear of Shaw.

Immediately after Shaw left, the victim called the Rape Crisis Center and asked for advice. Thereafter, she changed the sheets on the bed, took a shower, picked up her son from school, then drove to a pet shop to pick up a guinea pig cage for her son’s birthday party later that day. She also drove to her sister’s work place to visit with her. She intended to seek her sister’s advice about what to do as her sister had been previously raped. However, her sister was busy with a customer and was unable to talk. After that she ran various errands.

Finally, she went to Shaw’s home in order to tell Shaw’s wife about the attack. She stopped at the house because Shaw’s truck was not parked outside. However, she saw Shaw immediately upon entering the house and became frightened. She went through the house into the backyard to talk with Shaw’s wife. She was afraid to say anything about the rape because she thought Shaw could hear her and she had one of her children with her.

After returning home, she called the Rape Crisis Center, her husband, and the police. She provided the police with her ripped clothing, and the bed linen. She also went to the hospital for a rape examination.

Shaw did not testify. However, several witnesses, who were friends and business acquaintances, provided alibis which, if believed, would have cleared Shaw of involvement in the crime. Shaw’s wife testified that the victim did not seem excited or agitated at the time of her visit to Shaw’s house.

In the first three points of error Shaw complains that the trial court erred in admitting the testimony of Ms. Jane Bing-ham. Shaw contends that Bingham was not shown to be qualified as an expert, was allowed to testify without a proper foundation, and that her testimony denied Shaw due process of law. Specifically, Shaw complains that Bingham, who had no personal knowledge of the case was allowed to testify that a rape occurred and that Shaw was the rapist.

The State called Bingham to explain that the victim’s conduct after the rape was consistent with the offense with which Shaw was charged. The main thrust of Bingham’s testimony was that it was not abnormal for a victim of an “acquain[818]*818tance,” “power-rape” to remain calm after the rape and delay contacting authorities.

This sort of testimony regarding emotional response to violence is admissible when such information is relevant. Fielder v. State, 756 S.W.2d 309, 319-20 (Tex.Crim.App.1988).

Although the trial court’s handling of this testimony was not perfect, when viewed in retrospect, the court’s error was harmless given the court’s instructions and rulings.

Bingham testified that she is assistant dean for Community Services at Tarrant County Junior College, and that in connection with her employment, she conducts a statewide program on the investigation and treatment of child sexual abuse. Prior to holding her position of assistant dean, she was director of the Rape Crisis program for Tarrant County for four years. Bing-ham related that she had undergraduate degrees in both religion and psychology, and a Master of Divinity degree. She testified that she had attended over 500 hours of continuing education in the field of sexual assault. She also worked with victims of sexual assault for ten years, working with approximately 1,000 victims.

At the beginning of her testimony, Bing-ham admitted that she had never talked with the complaining witness or any other fact witnesses in the case. She continually stated that her knowledge of the case was limited to a witness statement from the complaining witness and the prosecutor’s oral summary of the complaining witness’s testimony at trial.

Upon Shaw’s request, the court ordered that Bingham’s testimony be received outside the presence of the jury. After both direct and cross-examination were completed, the court held that Bingham was qualified to testify as an expert and overruled Shaw’s objection that her testimony would invade the province of the jury.

Thereafter, Bingham testified before the jury. She testified to the various categories of rape situations and the different types of responses those situations invoke.

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Shaw v. State
764 S.W.2d 815 (Court of Appeals of Texas, 1988)

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Bluebook (online)
764 S.W.2d 815, 1988 Tex. App. LEXIS 3407, 1988 WL 149051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shaw-v-state-texapp-1988.