Brown v. State

• Decision Date: 16 May 1985
• Docket Number: No. 01-84-0260-CR,01-84-0260-CR
• Citation: 692 S.W.2d 146
• Parties: James E. BROWN, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 146

692 S.W.2d 146

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

No. 01-84-0260-CR.

Court of Appeals of Texas Houston (1st Dist.).

May 16, 1985.

Rehearing Denied June 13, 1985.

William W. Vance, Bryan, for appellant.

Bill Turner, Rodney Boyles, Bryan, for appellee.

Before EVANS, C.J., and COHEN and DUNN, JJ.

OPINION

DUNN, Justice.

This is an appeal from a conviction for the offense of rape. Trial was to a jury who found appellant guilty, found the enhancement paragraph of the indictment against him to be true, and assessed punishment at 35 years imprisonment.

Complainant testified that she received a phone call on Friday, August 26, 1983, from an individual calling himself "Sean." The caller inquired about the night-life in Bryan-College Station and offered to sell her a coupon booklet. The parties conversed for approximately 45 minutes, principally about their respective personal interests and hobbies. Complainant received several more calls from "Sean" over the weekend, in which he attempted to arrange a meeting with her. On Sunday night, August 28, 1983, "Sean" succeeded in convincing complainant to come to his apartment. She testified that she arrived there about 9:30 p.m., and was shocked to find that "Sean" was a black man. He pulled complainant into his apartment, and when she screamed, stated, "I don't go for that." He then forced her to have sexual intercourse with him.

Appellant, taking the stand in his own defense, testified that complainant had come to his apartment on the evening of their initial telephone conversation, at which time they drank wine and talked for about an hour. He said that complainant then went home, leaving behind her address and telephone number. Appellant testified this was the last time he saw complainant before the trial.

A rape kit established that complainant had sexual intercourse during the 24 hours in question. No witnesses were brought forward who could place either appellant or complainant at the scene of the alleged offense on Sunday night.

Appellant contends in his first four grounds of error that the trial court reversibly erred in overruling his challenges for cause to four prospective jurors, Mable R. Pearce, Donald C. Campbell, Willie Mae McConnell, and Julius Skrivaneck. We will address these four grounds of error together.

The record reflects that appellant properly preserved error when his challenges to these jurors were denied. Williams v. State, 565 S.W.2d 63, 65 (Tex.Crim.App.1978). On appeal, he contends that he was forced to accept four objectionable jurors whom he would have stricken with an additional peremptory challenge due to their inability to consider the full range of punishment for the offense. During initial voir dire, twelve prospective jurors, including the four named above, indicated an unwillingness to assess the minimum punishment for the offense of rape. Each of these prospective jurors was separately questioned outside of the hearing of the venire, and the trial judge excused eight of them, but refused to excuse the four jurors named above.

The trial court's decision to overrule a challenge for cause must be reviewed in light of all the answers that the prospective juror gave during voir dire questioning. Anderson v. State, 633 S.W.2d 851, 854 (Tex.Crim.App.1982). A careful review of the voir dire testimony of the four prospective jurors complained of, i.e., Pearce, Campbell, McConnell, and Skrivaneck, reveals that each could consider the full range of punishment for the offense. Venireperson Pearce, in addition, went so far as to say that she would "serve to the best of my ability and try to remove any of this and listen to only what I hear, to make my decision. I consider myself a pretty intelligent person. So for that reason, I am going to remove any preconceived ideas that I have." Venireperson Campbell, when asked if he could consider the full range of punishment, answered in no uncertain terms, "Right." When asked the same question, Venireperson Skrivaneck answered, "Right, and base it on the facts," and Venireperson McConnell stated that she would listen to all the evidence and not close her mind to the lower end of punishment or the upper end of punishment.

We find that the record does not support appellant's contention that the four jurors named on appeal could not give the minimum punishment and were subject to challenge for cause, pursuant to Tex.Code Crim.P.Ann. art. 35.16(c)(2) (Vernon 1966). Appellant's first four grounds of error are overruled.

Appellant's fifth ground of error asserts the trial court committed reversible error by failing to grant appellant's motion to quash the enhancement paragraph of the indictment, due to a fatal variance between the date of the prior conviction as alleged and that date as proven.

Upon comparison with the penitentiary packet submitted at the punishment phase of trial, the sentencing date alleged in the indictment was shown to be incorrect. However, the proof revealed the necessary succession of offenses and final convictions. It is well settled that it is not necessary to allege prior convictions for the purpose of enhancement with the same particularity as must be used in charging the original offense. Cole v. State, 611 S.W.2d 79 (Tex.Crim.App.1981).

Appellant cites Hollins v. State, 571 S.W.2d 873 (Tex.Crim.App.1978), in which the Court of Criminal Appeals affirmed a judgment and stated that allegations of prior convictions for purposes of enhancement should include the name and number of the court in which conviction was obtained, the time of the conviction, and the nature of the offense. However, the Court also noted that it is not necessary to allege the dates on which the convictions became final so long as the proof at trial showed the necessary succession of offenses and the fact that the convictions for each became final before the occurrence of the next offense. Burton v. State, 493 S.W.2d 837 (Tex.Crim.App.1973). In the case at bar, the record clearly shows that the previous conviction became final on January 4, 1980, well before the offense in question occurred.

Appellant failed to show that the error in the sentencing dates shown in the indictment prevented him from finding the conviction record or from making adequate preparation for trial. Cole, supra; Hollins, supra. Appellant's fifth ground of error is overruled.

Appellant's sixth ground of error avers the trial court committed reversible error by overruling appellant's objection to the admission of evidence concerning trauma suffered by complainant as a result of the rape.

In order to establish appellant's guilt of the offense of rape, the state was required to prove the allegations of the indictment that appellant had sexual intercourse with complainant "unlawfully, intentionally, and knowingly, by threats and force, and without her consent." (Emphasis added.) Contrary to appellant's argument, the issue of consent is not only raised by the evidence, but was emphasized by the particular circumstances of the case. Indeed, the issue of consent was the central, if underlying, issue since the evidence showed that complainant voluntarily presented herself at appellant's apartment. Thus, the issue of lack of consent was ever present during the state's case-in-chief, 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.

In an enlightened society, there is no longer a question that sexual intercourse perpetrated by threats and force is a violent act. Our courts have consistently admitted evidence showing the injuries sustained by the victim as a result of violence. Hafti v. State, 487 S.W.2d 745 (Tex.Crim.App.1972); Robinson v. State, 457 S.W.2d 572 (Tex.Crim.App.1970); Maxwell v. State, 362 S.W.2d 326 (Tex.Crim.App.1962); Mack v. State, 307 S.W.2d 588 (Tex.Crim.App.1957). Indeed, proof of the injuries sustained by a victim may be the best evidence of an assaultive crime. Levell v. State, 453 S.W.2d 831 (Tex.Crim.App.1970). Similarly, our courts have long recognized that evidence of subsequent emotional distress and shock may be properly considered in determining whether sexual intercourse occurred as a result of threats or force. Wood v. State, 80 Tex.Crim. 398, 189 S.W. 474 (1916); Burge v. State, 73 Tex.Crim. 505, 167 S.W. 63, 66 (1914).

In Wood, the court held there was no error in permitting testimony that the complainant was in a nervous condition for some time after the rape and that she continued to have nervous crying spells for a month or more. The court found this to be proper evidence of the severity of the shock to the victim's mental and physical nature. 189 S.W. at 476-77.

There is no set criteria to determine whether force has or has not been applied in any particular rape case, and the facts of each individual case must determine the issue. Brown v. State, 576 S.W.2d 820, 823 (Tex.Crim.App.1978); Bundren v. State, 152 Tex.Crim. 45, 211 S.W.2d 197 (1948). The nature and seriousness of the victim's injuries are admissible as a part of the state's case. Maxwell, 362 S.W.2d 326.

Emotional scars are much more difficult to prove than physical scars. The proof required to show "emotional trauma" looks to the effect of the trauma on the complainant as evidenced by her physical manifestations. The testimony of the state's expert witness, Dr. Simpson, which was admitted without objection, tied complainant's emotional trauma to the rape "as a direct reaction to a specific traumatic event." The probative force of such evidence sheds light on the element of consent, as well as the severity of the force used by appellant.

It was the duty of the trial court to weigh the probative value of the evidence of complainant's emotional trauma against the prejudicial effect of its admission, and in the exercise of its discretion, to decide whether the evidence should be admitted or...