Grunsfeld v. State
| Decision Date | 04 June 1991 |
| Docket Number | No. 05-90-00243-CR,05-90-00243-CR |
| Citation | 813 S.W.2d 158 |
| Parties | Robert Charles GRUNSFELD, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Robert Charles Grunsfeld appeals his conviction for aggravated sexual assault. A jury assessed punishment at life imprisonment. Grunsfeld alleges insufficient evidence and also raises several points of error on the admission of evidence. We reverse the trial court's judgment.
Grunsfeld took the complainant out on a date. After dinner, the two went to Grunsfeld's mother's house where they had some drinks. After having his sexual advances rejected, Grunsfeld became violent. Grunsfeld forcibly removed the complainant's clothes and then pulled out a stun gun. Grunsfeld used the stun gun on the complainant's side, head, neck, and buttocks. Grunsfeld repeatedly raped and abused the complainant over a five-hour period.
Grunsfeld alleges that there is insufficient evidence to support the judgment. When an appellant challenges the sufficiency of the evidence, a reviewing court must determine whether, evaluating all the evidence in the light most favorable to the verdict, any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. [Panel Op.] 1981).
Grunsfeld concedes that the evidence, when viewed under the standard cited above, is sufficient to sustain a conviction for sexual assault; he only challenges the finding as to the aggravating circumstances. Aggravated sexual assault is sexual assault with the additional element that the assaulter has placed the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person. TEX.PENAL CODE ANN. § 22.021 (Vernon 1989). The jury is mandated to assay first if that state of fear in fact existed; the defendant's conduct is then assessed to determine if it was the producing cause of such fear and whether the subjective state of fear was reasonable in light of such conduct. Douglas v. State, 740 S.W.2d 890, 891 (Tex.App.--El Paso 1987, no pet.); see Kemp v. State, 744 S.W.2d 243, 245 (Tex.App.--Houston [14th Dist.] 1987, pet. ref'd). The jury may consider an appellant's objective conduct, his acts, words, or deeds and infer from the totality of the circumstances whether an appellant's overall conduct placed the complainant in fear of serious bodily injury. Kemp, 744 S.W.2d at 245. It is not necessary to show that serious bodily injury or death was threatened or inflicted. It is also not necessary to show that the appellant could have inflicted serious bodily injury. Id.
The complainant testified to several circumstances: she had never seen a stun gun before, the stun gun hurt "real bad"; and the stun gun made her numb. The complainant also testified that, after she hid the stun gun, Grunsfeld stated that he was going to have to find a real gun. The complainant testified that she thought Grunsfeld would use this gun on her. A jury could have found beyond a reasonable doubt that the circumstances and Grunsfeld's actions placed the complainant in fear of serious bodily injury. We overrule Grunsfeld's first point of error.
Next, Grunsfeld complains of the admission into evidence of a police offense report under the theory of optional completeness. TEX.R.CRIM.EVID. 107. After the the complainant had testified, the State called John Umpledy, a Dallas police officer. On direct examination Umpledy testified that: he responded to a sexual assault report; he met the complainant at an apartment in Lewisville and took her and her roommate to Parkland Hospital; he then drove the complainant to the scene of the alleged offense, located the house in question and the house to which she fled when she escaped from Grunsfeld; and he took a report from the complainant. He did not relate that conversation. The offense report was tendered to Grunsfeld's counsel for cross-examination.
On cross-examination, Grunsfeld used the report to elicit from Umpledy some of the things that the complainant had told him. The portions elicited were highly selective. Umpledy testified that the complainant told him that Grunsfeld had been drinking heavily and had told her he loved her and wanted to marry her. At one point, when the officer-witness could not recall the address of the house to which the complainant fled, Grunsfeld had the officer review his report to refresh his memory and read the address to the jury. Grunsfeld did not introduce the report or read any other portion of the same to the jury.
Upon re-direct examination, the State offered the entire offense report into evidence under the theory of optional completeness. The trial court overruled Grunsfeld's objection and admitted the offense report into evidence.
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, as when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation, writing or recorded statement is given in evidence, any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence. "Writing or recorded statements" includes depositions.
Rule 107, like its forerunner, 2 is designed to guard against "the possibility of confusion, distortion or false impression that could rise from the use of an act, writing, conversation, declaration or transaction out of proper context." Livingston v. State, 739 S.W.2d 311, 331 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988).
The State cites cases for the proposition that the entire statement is admissible under the rule of optional completeness when the defense counsel raises the issue of a police report and questions the witness as to its contents. See, e.g., Wintters v. State, 616 S.W.2d 197, 202 (Tex.Crim.App. [Panel Op.] 1981). We conclude that the cases are distinguishable on the facts from the instant case. The mere use of the offense report for the purposes of cross-examination did not invoke rule 107. Grunsfeld did not introduce any portion of the offense report and, other than refreshing the witness's memory as to an address, it was not read to the jury. The court erred in admitting the entire offense report into evidence.
We conclude, however, beyond a reasonable doubt that the error made no contribution to the conviction or punishment. TEX.R.APP.P. 81(b)(2). In making this decision, we are required to focus not on the weight of the evidence of guilt but on whether the error might possibly have prejudiced the jurors' decision-making. Harris v. State, 790 S.W.2d 568, 587-88 (Tex.Crim.App.1989). Thus, we focus upon the error and determine whether it contributed to the conviction or to the punishment. Id. at 585.
Since Grunsfeld opened the door and inquired into the conversation the officer had with the complainant, the State had every right under rule 107 to inquire into the balance of the conversation. Had the State done this, there would have been no error. An examination of the offense report reveals the balance of the conversation the officer had with the complainant and reflects other facts already in evidence from the officer without objection. Further, in jury argument Grunsfeld used the report to call to the jury's attention the inconsistencies between the complainant's trial testimony and what she told the officer as reflected in the report. He asked the jury to carefully examine the report. The error was harmless under the test prescribed. TEX.R.APP.P. 81(b)(2). We overrule Grunsfeld's second point of error.
In his third ground of error, Grunsfeld contends that the trial court erred in permitting a demonstration of a stun gun under circumstances different from the alleged offense. The complainant testified that during the course of the alleged offense the stun gun snapped when Grunsfeld turned it on and that a current of electricity went across the two prongs of the gun. She could see and hear the electricity. When Grunsfeld touched the gun to her skin, it hurt "real bad" and made her "numb."
Paul Wimer, a district attorney's investigator, testified that over eleven months after the alleged offense he executed a search warrant at the home of Grunsfeld's mother; that he found the stun gun in question in a closet described by the complainant; and that it was made of black plastic with metal prongs. After the stun gun was admitted into evidence, the prosecutor asked the witness to "activate" the exhibit in the presence of the jury. The witness explained that the battery might be dead, but that he had a new battery. Grunsfeld in his objection made clear that he did not oppose a demonstration with the original battery; instead, Grunsfeld directed his objection to the use of a new battery. Wimer was then permitted to testify that the stun gun was operable when it was found; that it "sparked" but that he didn't touch it. After the prosecutor pointed out that the stun gun had been in storage since its seizure, the trial court conducted a hearing in the absence of the jury. After the hearing the...
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