Wade v. State

769 S.W.2d 633, 1989 Tex. App. LEXIS 1437, 1989 WL 56452
CourtCourt of Appeals of Texas
DecidedMarch 27, 1989
DocketNos. 05-88-00317-CR, 05-88-00318-CR
StatusPublished
Cited by1 cases

This text of 769 S.W.2d 633 (Wade 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
Wade v. State, 769 S.W.2d 633, 1989 Tex. App. LEXIS 1437, 1989 WL 56452 (Tex. Ct. App. 1989).

Opinion

BURNETT, Justice.

Walter Wade, Jr., appeals the punishment assessed by the jury for two counts of aggravated sexual assault of a child under fourteen. Wade pled guilty to both counts and was sentenced by the jury to fifty years’ confinement for each offense. In his first two points of error, Wade contends that the opinion testimony of the State’s expert witness as to whether Wade was a good candidate for probation and whether a prison sentence would benefit the victim was improperly admitted. In his third point of error, Wade argues that he was denied a fair trial by the State’s improper jury arguments. We find no merit in Wade’s contentions; therefore, we affirm the trial court’s judgment.

Wade pled guilty to the two charges of aggravated sexual assault of his seven and eight year old stepdaughters. During the course of the trial on punishment, the State called Dr. Robert Powitzky, a psychologist, as an expert witness.1 In his first point of error, Wade maintains that the court improperly admitted Dr. Powitzky’s opinion testimony that Wade was not a good candidate for probation. The complained of testimony is as follows:

STATE: Then given your criteria and your assessment of the defendant, then would it be your opinion that Walter Wade is not a good candidate for probation in this case?
DEFENSE COUNSEL: Your Honor, I will object to that question.
THE COURT: I’m going to let him answer that.
DR. POWITZKY: It would be my opinion that he’s not.

To preserve error, an objection must identify what is objected to and the specific grounds for the objection. Cisneros v. State, 692 S.W.2d 78, 83 (Tex.Crim.App.1985). In McGowen v. State, 664 S.W. 2d 355, 358 (Tex.Crim.App.1984), the Court observed that “a general objection is equiv[635]*635alent to making no objection at all.” Due to the absence of an objection on specific grounds, we overrule point of error number one.

In his second point of error, Wade asserts that over his objection, the trial court erroneously admitted the opinion testimony of Dr. Powitzky that a prison sentence frequently benefits victims. The complained of testimony is as follows:

STATE: Has it been your experience that prison frequently benefits the victims of sexual assault cases?
DEFENSE COUNSEL: Your Honor, I will object to that. That’s irrelevant as to whats happened in other specific cases. I don’t think its relevant in this case.
THE COURT: Overruled. I’m going to let him answer that one.
DR. POWITZKY: I think the benefits might be, again, depending on the child, that the child really sees that that person was responsible for the behavior, it was the offender, that society is saying “he’s the guilty one; you’re not the guilty one. It wasn’t your fault whatsoever.” I think that’s the major benefit. The problems I have seen is the child feeling totally responsible that the father is going to prison. I think that has a lot to do with how the family ends up handling the children and how they’re handled in counseling.

(emphasis added).

Expert testimony in a criminal proceeding is admissible only when 1) the witness is competent and qualified to testify; 2) the testimony will assist the jurors, as triers of fact, in evaluating and understanding matters not within their common experience and 3) the testimony’s probative value outweighs its prejudicial effect. Kirkpatrick v. State, 747 S.W.2d 833, 834 (Tex.App.—Dallas 1987, pet. ref’d) (citing Chambers v. State, 568 S.W.2d 313 (Tex.Crim.App.1978), cert. denied, 440 U.S. 928, 99 S.Ct. 1264, 59 L.Ed.2d 484 (1979), and TEX.R.CRIM.EVID. 702, 403). The review by this court of the trial court’s admission of expert testimony is limited to whether the trial court abused its discretion. Steve v. State, 614 S.W.2d 137, 139 (Tex.Crim.App.1981).

Wade has not challenged Dr. Powitzky’s competency or qualifications nor has he complained of any prejudice resulting from the testimony. Instead, Wade argues that the effect which a prison sentence may have had in other cases is irrelevant to this case. Because of the particular nature of this case, we disagree.

The Court of Criminal Appeals has held that it is not error to exclude expert testimony that it would be better for a defendant to be placed on probation. Schulz v. State, 446 S.W.2d 872, 874 (Tex.Crim.App.1969); see Levingston v. State, 651 S.W.2d 319, 324 (Tex.App.—Dallas 1983, no writ). The court reasoned that to admit such testimony would 1) invade the province of the jury and 2) cause a “battle of the experts” on the rehabilitive values of probation compared to confinement. Schulz, 446 S.W.2d at 874. However, invasion of the province of the jury is no longer a valid objection to expert testimony. Hopkins v. State, 480 S.W.2d 212, 218 (Tex.Crim.App.1972); see TEX.R.CRIM.P. 704.

In the instant case, the expert testimony did not involve a discussion of the rehabilitative effects of confinement versus probation on a particular defendant which the Schulz court sought to avoid. Instead, Dr. Powitzky testified to the possible effect of prison or probation on a general class of victims, minor sexual assault victims who lived with the man who had abused them and who may live with him again if he is released on probation. Wade’s seven and eight year old step-daughters each testified that he assaulted them vaginally, anally and orally “lots of times.” Although Wade pled guilty and conceded at trial that he has a problem, the evidence reflects that he has only attended fifty to sixty percent of his counseling sessions and has not fully participated in group sessions. Wade’s wife testified that she continues to have a sexual relationship with him and speaks to him seven to eight times a day by phone.

At the punishment hearing, any evidence which is legally admissible to mitigate punishment or is relevant to the appli[636]*636cation for probation may be admitted. Alaben v. State, 418 S.W.2d 517, 519 (Tex.Crim.App.1967). See TEX.CODE CRIM. PROC.ANN. art. 37.07. However, before the testimony of an expert is admissible, the subject must be one upon which a jury of laymen would benefit from the assistance of such expert testimony. Hopkins, 480 S.W.2d at 218.

We cannot conclude and are not aware of any cases which hold that the possible effects of sexual assault on a child victim are commonly known by laymen. Given the facts of this case, we also cannot conclude that this effect is not relevant to Wade’s application for probation which, if granted, might result in Wade’s presence in the children’s home.

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Bluebook (online)
769 S.W.2d 633, 1989 Tex. App. LEXIS 1437, 1989 WL 56452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wade-v-state-texapp-1989.