Smith v. State

850 S.W.2d 275, 1993 Tex. App. LEXIS 908, 1993 WL 92263
Court of Appeals of Texas·Decided March 31, 1993·No. No. 2-91-245-CR·Published·Cited by 4 cases

Opinion

OPINION

DAY, Justice.

Kenneth Reed Smith (Smith) appeals his conviction of aggravated sexual assault pursuant to Tex.Penal Code Ann. § 22.-021(a)(l)(A)(i), (a)(2)(A)(ii), (iii) & (c) (Vernon 1989). The jury assessed punishment, enhanced by a prior felony conviction, at life imprisonment in the Texas Department of Criminal Justice, Institutional Division, and a $10,000 fine.

We affirm in part and reverse and remand in part.

The sufficiency of the evidence is not at issue in this appeal, and so we will limit our discussion of the facts to those addressed in each point of error.

In his first point of error, Smith complains the trial court improperly admitted evidence of an unadjudicated extraneous offense at the punishment stage of trial, in violation of Tex.Code Crim.Proc.Ann. art. 37.07(3)(a) (Vernon Supp.1993) and double jeopardy, collateral estoppel, and ex post facto principles.

At the punishment phase of trial, the court, over defense counsel’s objection, allowed into evidence testimony about the facts underlying Smith’s prior conviction for capital murder. Because that conviction was then on appeal, the court did not allow the State to admit the judgment and sentence.

The Court of Criminal Appeals has recently ruled that evidence of specific unad-judicated conduct is inadmissible at the punishment phase of a noncapital trial under article 37.07(3)(a). See Grunsfeld v. [277]*277State, 843 S.W.2d 521, 523 (Tex.Crim.App.1992). This exclusion applies to evidence of offenses for which the accused has been convicted, but is appealing, as well as to evidence of wholly unadjudicated offenses. Id. at 523-25.

Because Smith’s appeal of his capital murder conviction was still pending during the punishment phase of trial in the instant case, the trial court abused its discretion in admitting evidence of the facts underlying that conviction. We sustain Smith’s first point of error.

In his second point of error, Smith complains the trial court improperly refused to allow testimony or cross-examination on the issue of whether L.S., the complainant, had contracted the AIDS virus. In his pretrial motion for discovery, Smith asked the court to order the State to provide him evidence or information known to the State or in the State’s possession or control that was inconsistent with Smith’s guilt or relevant to punishment. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197-98, 10 L.Ed.2d 215, 218 (1963). Specifically, Smith requested information to the effect that L.S. was then suffering from AIDS.1

The trial court ordered the State to comply with Brady and to provide Smith “anything exculpatory.” The judge also ordered both Smith and the State to submit for an in camera hearing any evidence they had concerning whether either Smith or L.S. had AIDS.

At the in camera hearing, James Hol-brook, M.D., testified that Smith did not have the antibodies to the AIDS virus. Dr. Holbrook further testified, however, that Smith could be in the incubation period for AIDS and that it might be years before he showed symptoms of having the AIDS virus. Smith also had access to L.S.’s medical records at John Peter Smith Hospital.2 Smith concedes that these records did not mention AIDS.

Thereafter, the trial judge ruled that whether either Smith or L.S. had the AIDS virus was not relevant to the case. The judge further stated:

I’ve reviewed the expertise in this area, the law and the medical probabilities, whether or not a person had sexual intercourse with somebody who had AIDS, whether or not they will at that time get infected is totally, medically unpredictable. There is no reasonable medical probability. Therefore, it’s not evidence in this case....

Since the promulgation of the Texas Rules of Criminal Evidence in 1986, Tex. R.Crim.Evid. 702 has governed the admission of all expert testimony.3 Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Id.

The threshold determination for a trial court to make regarding the admission of expert testimony or other scientific evidence is whether that testimony or evidence will help the trier of fact understand the evidence or determine a fact in issue. Kelly, 824 S.W.2d at 572; Duckett v. State, 797 S.W.2d 906, 910 (Tex.Crim.App.1990).

Under Rule 702 the proponent of novel scientific evidence must prove to the trial court, by clear and convincing evidence, that the proffered evidence is reliable and therefore relevant. If the trial [278]*278court is so persuaded, then the evidence should be admitted for the jury’s consideration, unless the trial court determines that the probative value of the evidence is outweighed by some factor identified in Rule 403.4 Kelly, 824 S.W.2d at 573.

We must uphold the trial court’s rulings on relevancy and probative value as long as those rulings were within the “zone of reasonable disagreement,” given the evidence presented and the requirements of Rule 702. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (opinion on reh’g).

In the instant case the trial court could reasonably have determined, based on Dr. Holbrook’s testimony and the other information available to the court, that evidence concerning whether Smith or L.S. actually had AIDS, in any of its stages, was unreliable and therefore irrelevant on the issue of whether Smith had sexually assaulted L.S. Additionally, the trial judge could reasonably have determined that, given the speculative nature of this evidence, the prejudicial effect such an inquiry could have had on the jury would have far outweighed its probative value.

We therefore find that the trial court did not abuse its discretion in refusing to admit testimony or allow cross-examination on the issue of whether L.S. had contracted the AIDS virus.

Smith’s contention that the trial court’s ruling on this issue amounted to a comment on the weight of the evidence is wholly unfounded. All of the testimony or discussion regarding AIDS took place out of the jury’s presence.

Furthermore, Smith’s assertion that the trial court’s ruling deprived him of his constitutional right to a fair trial is unaccompanied by citation either to the record or to any authority.

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Smith v. State, 850 S.W.2d 275, 1993 Tex. App. LEXIS 908, 1993 WL 92263 (Tex. Ct. App. 1993).

850 S.W.2d 275 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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