Brown v. State

• Decision Date: 22 June 1988
• Docket Number: No. 663-85,663-85
• Citation: 757 S.W.2d 739
• Parties: James E. BROWN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 739

757 S.W.2d 739

James E. BROWN, Appellant, v. The STATE of Texas, Appellee.

No. 663-85.

Court of Criminal Appeals of Texas,

En Banc.

June 22, 1988.

William W. Vance, court appointed on appeal only, Bryan, Walter C. Prentice, on PDR only, Austin, for appellant.

Bill Turner, Dist. Atty. and Todd Jermstad and Rodney Boyles, Asst. Dist. Attys., Bryan, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

DUNCAN, Judge.

The appellant was convicted by a jury of the offense of rape and after it found the enhancement paragraph to be true the jury assessed punishment at thirty-five years in the penitentiary.

The appellant's conviction was affirmed by the court of appeals. Brown v. State, 692 S.W.2d 146 (Tex.App.--Houston [1st] 1985, pet. granted ). We granted the appellant's petition for discretionary review to review the following ground for review:

Whether the Court of Appeals erroneously concluded that the Trial Court was proper in admitting evidence concerning the victim's two suicide attempts, weight gain, job loss, fear of being outside and loss of confidence, all of which occurred in the eight months between the rape and the trial.

The court of appeals endorsed the trial court's admitting the evidence set forth above by concluding that consent was a disputed issue during the trial 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." Brown v. State, id., at 150.

If the facts were such that consent had in reality been a contested issue the court of appeals would have undoubtedly been correct in its analysis. However, as Justice Cohen effectively and accurately observed in his dissenting opinion: "It is significant that the appellant's sole defense was alibi. There was no claim of consent. The majority's astonishing claim to the contrary has no support in this record." Brown v. State, id., at 153 (Cohen, J., Dissenting). Further, "[t]here was no dispute concerning whether the victim had undergone a traumatic event, in general, or a rape, in particular." Id., at 154.

A detailed statement of the facts is unnecessary. It is sufficient to note that on direct examination the complainant testified that she went to appellant's apartment at his request and after she arrived he pulled her inside and raped her. In addition, over appellant's objection, she testified to specific instances of the emotional trauma she had experienced since the rape. Contesting such testimony, the appellant simply asserted he did not rape the complainant or have sexual intercourse with her at all. In addition, he presented an alibi witness who testified he was with her when the rape occurred.

The issue that must be resolved is, therefore, nothing more than one of relevancy. Although not applicable to this case, Rule 401 Tex.R.Cr.Evid. states the definition of relevancy as follows: " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985), Judge Campbell, writing for the Court, accurately defined relevancy to be evidence " 'which conduces to the proof of a pertinent hypothesis--a pertinent hypothesis being one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable ...' [citation omitted]." Id., at 491. In a footnote, Judge Campbell also observes that the Court does "not perceive this definition as being any different from Tex.R.Evid. 401...." Id., at fn. 6.

Relevancy, under either definition, is predicated on a subjective relationship between the proffered evidence and a "fact that is of consequence to the determination of the action...." Rule 401 Tex.R.Cr.Evid. Therefore, evidence is relevant only if it tends to make "the existence of ..., [that fact] more probable or less probable...." Rule 401, supra. Consequently, any item of evidence that alters the probability of a consequential fact is relevant because to alter the probabilities of a fact there must be a subjective relationship between the proffered evidence and the ultimate fact. In other words, for an item of evidence to alter the probabilities of the existence of the consequential fact and thus be relevant it must logically increase one's knowledge and enhance the likelihood of ascertaining the truth about the fact.

In the present case, the consequential fact was that the complainant had been raped. Thus, any evidence that would tend to prove that fact or increase the jury's knowledge about that fact would be relevant. However, as previously observed, there was no dispute that she had been raped; therefore, evidence of her emotional difficulty after the rape would not alter the probability it occurred because that was not disputed. Therefore, quite simply there was no logical relationship between the evidence and the consequential fact. Thus, it was irrelevant and should not have been admitted into evidence.

During the State's case-in-chief, Dr. Dale Simpson, a psychologist, also testified. He stated that he had been treating the complainant and had diagnosed her as suffering from a "DS3 diagnosis of adjustment reaction with depressed mood." According to Dr. Simpson, an "adjustment disorder is a diagnosis that describes a certain emotional state ... [that is] in reaction to some event that has happened to the person, usually an obviously traumatic event...." Later in his testimony, Dr. Simpson detailed the symptoms of "an adjustment reaction with depressed mood" as follows: "It is an intense depressed mood in the person, that you see things like fatigue, lack of caring in their job and their work, withdrawal, staying at home, not wanting to get out of bed sometimes is a symptom." In addition, and quite significantly, Dr. Simpson observed that a sexual assault is a common cause of this emotional state.

Concluding his testimony, Dr. Simpson testified that he had received a medical history from the complainant and that in his opinion the source of the complainant's emotional difficulties was that "[s]he reported that she had been raped. And I had tied that into her report of the rape."

It is apparent that Dr. Simpson's testimony was essentially the same as that given by the complainant regarding her emotional state after the rape. However, the appellant did not object to this testimony on the basis that it was irrelevant. The only objections lodged by the appellant to Dr. Simpson's testimony was that there was no proper predicate laid for his opinion and that the State failed to supply him with the doctor's notes in violation of the court's discovery order. Neither of which was claimed as error before the court of appeals.

In Anderson v. State, 717 S.W.2d 622 (Tex.Cr.App.1986) the rule regarding such cumulative evidence was stated as follows: "Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove." Id. at 628. See also: East v.State, 702 S.W.2d 606 (Tex.Cr.App.1985) and Lichtenwalter v. State, 554 S.W.2d 693 (Tex.Cr.App.1977). ^*

As previously stated, the evidence of the complainant's emotional reaction to the rape, under the facts of this case, was irrelevant, and should not have been admitted. However, the similar and equally irrelevant testimony of Dr. Simpson that was not objected to cures the error. The complainant's testimony was simply cumulative of Dr. Simpson's testimony. Under Rule 81(b)(2) Tex.R.App.Pro. we find beyond a reasonable doubt that the error in admitting the testimony of the complainant concerning her emotional problems, when considered in conjunction with the unobjected to testimony of Dr. Simpson, did not contribute to the judgment of conviction or the punishment.

Therefore, the judgment of the court of appeals is affirmed.

McCORMICK, Judge, concurring.

Since I find that the evidence was properly admitted, I do not believe it necessary to reach the issue of curative admissibility as the majority has done. Agreeing, however, that the Court of Appeals reached the correct result, I file this concurring opinion. In doing so, I will examine the facts in somewhat greater detail than has the majority.

The first witness called to testify at appellant's trial was the victim L____ L____. As part of her testimony on direct examination in addition to reciting the facts of the offense, L____ L____ testified over objection that as a result of the offense she had become emotionally distressed, she had had to quit her job as a mail carrier in that she was afraid to be outside, she had gained a lot of weight since the offense, and she had attempted to commit suicide on two occasions. In response to appellant's objections that this testimony was inflammatory and prejudicial, the State argued that the testimony was offered to show the effect the rape had on her life as related to her credibility.

On original appeal, appellant argued that the trial court committed reversible error by allowing this testimony into evidence. The Court of Appeals, after noting that the State had the burden to show that the intercourse was without the victim's consent, and finding that consent was the central issue to the case, held that the evidence was admissible to prove that the victim did not consent to the intercourse. Analogizing the complained of evidence to proof of physical injury after a sexual assault as a result of threats or force, the court held that the trial court did not abuse its discretion in admitting the evidence. The court further found that any error was waived when the State introduced testimony from a...