Harrison v. State

• Decision Date: 29 November 1984
• Docket Number: No. 01-83-0627-CR,01-83-0627-CR
• Citation: 686 S.W.2d 220
• Parties: Charles HARRISON, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 220

686 S.W.2d 220

Charles HARRISON, Appellant, v. The STATE of Texas, Appellee.

No. 01-83-0627-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Nov. 29, 1984.

Catherine Greene Burnett, Janet Seymour Morrow, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., J. Harvey Hudson, Dan Krocker, Asst. Dist. Attys., Houston, for appellee.

Before WARREN, LEVY and COHEN, JJ.

OPINION

COHEN, Justice.

The appellant was convicted by a jury of aggravated rape. He pleaded true to one enhancement paragraph, and the jury assessed punishment at confinement for thirty-five years.

The first ground of error contends that the evidence, although sufficient to prove rape, was insufficient to prove aggravated rape. The indictment alleged that the appellant:

by acts, words and deeds ... did intentionally and knowingly place the Complainant in fear of serious bodily injury and death to be imminently inflicted on the Complainant.

The record shows that the complainant was an employee of the appellant, which caused them to be together at a remote rural location. The appellant made sexual advances which she refused, but the appellant persisted, finally forcing her to the ground. She testified that she screamed twice, but the appellant covered her mouth with his hand. He told her that he would "knock [her] out" and suggested that she cooperate. She testified that she feared being knocked out and thought she might die. No weapon was displayed or mentioned by the appellant at any time prior to or during the rape, although there was some discussion concerning guns after the rape as the two rode around in the appellant's car to other locations. When they stopped for gasoline at a service station, the complainant got out of the car and refused to get back in, whereupon the appellant left and the authorities were notified.

The appellant argues that the verbal threat to "knock out" the complainant, standing alone, does not constitute sufficient evidence of aggravated rape because it is insufficient to show that she feared the imminent infliction of serious bodily injury or death.

When reviewing the sufficiency of the evidence, we view it in the light most favorable to the jury verdict in order to determine whether any rational jury could have been convinced beyond a reasonable doubt of the appellant's guilt. Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983).

The term "serious bodily injury" is defined by statute as "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex.Penal Code Ann. section 1.07(34) (Vernon 1974). The Court of Criminal Appeals has on several occasions found that serious bodily injury was caused by blows to the head. In Johnson v. State, 583 S.W.2d 399, 403 (Tex.Crim.App.1979), repeated blows to the head with a metal pipe created a substantial risk of death. In Hatfield v. State, 377 S.W.2d 647, 649 (Tex.Crim.App.1964), the defendant struck the victim in the face resulting in a cut lip and loss of teeth; and, in Roberts v. State, 99 Tex.Cr.R. 492, 269 S.W. 103, 105 (1924), the victim's skull was fractured by a kick to the head. In each case, serious bodily injury resulted from a blow to the head.

Common experience indicates that a blow to the head is contemplated by one who threatens to "knock you out". Thus, it was reasonable for the complainant, who was threatened with being knocked out, to fear that she was going to be struck in the head with sufficient force to cause her to lose consciousness. It is not unreasonable for the victim of such a threat to expect that such an attack might cause protracted loss or impairment of the function of a bodily member or organ, serious permanent disfigurement, a substantial risk of death, or even death itself. Johnson v. State, supra, Hatfield v. State, supra, Roberts v. State, supra. Thus, a rational jury could have been convinced beyond a reasonable doubt that the complainant submitted to intercourse out of a reasonable fear that she would sustain serious bodily injury if she did not submit. The first ground of error is overruled.

The third ground of error contends that the trial court erred by sustaining the State's hearsay objection, thus refusing to allow the appellant to impeach the complainant's testimony that she had not asked a bartender for Mandrex.

Appellant met the complainant one day before the offense at a topless bar where she was applying for a job as a waitress. Defense counsel asked the bar manager, Frank Olveda, the following:

Q: Do you know whether or not during the time she was there she had any conversation with the bartender?

A: At the time I arrived, before I arrived, I don't know. And when I was there, not until she left.

Q: She had a conversation with the bartender when she left?

A: She asked him something.

Q: And do you know what it was she asked the bartender when she left?

A: Yes sir, I do.

Q: What was that?

The appellant then offered Olveda's testimony that he heard the complainant ask the bartender for Mandrex, a controlled substance. The State made a hearsay objection, which the court sustained, rejecting the appellant's argument that the testimony was not hearsay because it was offered only for impeachment, not to prove the truth of any matter asserted in the statement. The appellant suggested that the State might be entitled to a jury instruction that such testimony be considered only as impeachment, not as substantive evidence.

The State's sole trial objection was that Olveda's testimony was hearsay. The testimony was not hearsay because it was not an out of court statement offered in evidence to prove the truth of the matter asserted in the statement. The complainant's alleged statement concerning Mandrex was not an assertion of fact at all, but merely a question. Such evidence is not hearsay. Girard v. State, 631 S.W.2d 162 (Tex.Crim.App.1982); Compton v. State, 607 S.W.2d 246 (Tex.Crim.App.1979); Nixon v. State, 587 S.W.2d 709 (Tex.Crim.App.1979); See and compare Tex.R.Evid. 801(c), (d), (e)(2)(A); Fed.R.Evid. 801(c), (d)(2)(A). Therefore, the State's hearsay objection was without merit and should have been overruled.

The State argues on appeal that the evidence was properly excluded, not as hearsay, but because it only involved a collateral matter, and the right to impeach the credibility of a witness does not extend to such collateral matters.

The appellant testified that the complainant consented to intercourse for pay with him the day after they met at Olveda's bar, while she was under the influence of marijuana and then, when the appellant did not pay, she falsely claimed rape because she was afraid to return to her violent boyfriend without drug money.

Frank Olveda testified that the complainant was "high" and staggering when she applied for work, although she did not appear to have been intoxicated from alcohol use. Olveda refused her application because he thought it was unsafe for her to work in that condition. There was testimony that her "old man", with whom she lived, was "a doper". The appellant testified that, on the day of the offense, the complainant had initially said that she could not work because she and her boyfriend had been "loaded" the night before, but that she needed money because her boyfriend had used all their money for drugs.

Great latitude should be allowed the accused to show a witness's motive to falsify his testimony; however, trial courts have considerable discretion as to how and when such a motive may be proved and as to what collateral evidence is material for that purpose. Cloud v. State, 567 S.W.2d 801, 802 (Tex.Crim.App.1978). The extent to which a witness may be cross-examined for the purpose of showing bias on a collateral matter rests in the sound discretion of the trial judge, who must balance the probative value of the evidence sought to be introduced against the risk its admission may entail. The potential risks include: 1) the possibility of undue prejudice, embarrassment or harassment to either a witness or a party; 2) the possibility of misleading or confusing a jury; and 3) the possibility of undue delay or waste of time. Cloud v. State, supra at 802-03. The same factors control this case, although the issue is the scope of direct examination, not cross-examination. Koehler v. State, 679 S.W.2d 6, 9-10 (Tex.Crim.App.1984); Jackson v. State, 482 S.W.2d 864, 867 (Tex.Crim.App.1972).

Professor Ray, in his treatise, Texas Law of Evidence, sections 683-84, (West 1980), has stated:

The chief reasons for excluding contradiction on collateral matters are reasons of policy. First, too great an inconvenience would result if every alleged error could be investigated. Much time would be wasted and the issues confused. Second, it would be unfair to the witness to expect him to come prepared to meet any error that might be alleged, although entirely beyond matters in litigation.

Although the rule that error on collateral matters may not be shown is well established, the rule itself marks out no definite line of exclusion. The difficult question is left unanswered. What matters are collateral and what are not? Only one satisfactory test appears to have been devised.... In Professor Wigmore's words it is: "Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?" ... The test is simple, definite and easy of application, yet, despite this, it has been accepted by very few jurisdictions in this country. The Texas courts appear to have no definite guide. They employ such terms as irrelevant, collateral and immaterial, and let the decision hinge on the particular circumstances of each case. So much depends on the individual opinion of the judges that about all it is possible to do here is to illustrate by specific instances some of the matters which have been held...