Steve v. State, 59942
| Decision Date | 25 March 1981 |
| Docket Number | No. 59942,No. 1,59942,1 |
| Citation | 614 S.W.2d 137 |
| Parties | Bill STEVE, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
William W. Sommers, San Antonio, for appellant.
Bill M. White, Dist. Atty., Lawrence R. Linnartz, and Gail Dalrymple, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and ROBERTS and ODOM, JJ.
The appellant was found guilty of the offense of indecency with a child. His punishment, enhanced by two prior felony convictions, was assessed at confinement for life.
Elizabeth Bialas testified at trial that she left her son and daughter, the eight year old complaining witness, with the appellant on the day of the alleged offense. That evening she returned to the appellant's apartment, picked up her children, and drove home. During the drive Bialas learned from her daughter that the appellant had placed his hand on the complaining witness's vagina. The complaining witness also testified concerning the incident. The appellant contends that he was prevented by the trial court from showing Bialas's bias and prejudice as a witness and her motive for making these allegations. The appellant also contends that he was improperly prevented from showing the strong influence Bialas had over the testimony of the complaining witness.
The appellant's third and fourth grounds of error complain of the trial court's refusal to admit the opinion testimony of Lucinda Dobbs, an intake worker for the Bexar County Child Welfare Department. The appellant contends that it was error to exclude from evidence Dobbs's opinion that the complaining witness had been told what to say regarding the alleged incident of indecency. This opinion was based upon the fact that the complaining witness, while discussing the incident with Dobbs, used almost the exact wording that her mother had used in response to the same questions, and the fact that the complaining witness described the incident in words that were not "appropriate" for an eight year old child. Whenever the jury is in possession of the same information as the witness and the jury can fully understand the matter and draw the proper inferences and conclusions, the witness's opinion testimony is unnecessary and inadmissible. R. Ray, 2 Texas Law of Evidence Section 1393 (3rd ed. 1980). Dobbs was not prevented by the trial court's ruling from testifying as to the underlying facts which formed the basis of her opinion. The jury could reasonably infer from those facts, without the aid of any opinion testimony, that the complaining witness had been told what to say. We hold, therefore, that it was not error to exclude Dobbs's opinion as to the similarity of responses by the complaining witness and her mother.
The appellant also contends that it was error to exclude from evidence Dobbs's opinion that there was a strong possibility that the complaining witness identified with and was greatly influenced by her mother. This opinion was based on Dobbs's belief that the complaining witness had been physically abused by her mother, and the belief that abused children tend to rely upon the abusing parent for acceptance. The appellant tendered Dobbs as an expert witness qualified to express an opinion as to the emotional attitudes and responses of physically abused children toward an abusing parent. Whether a witness offered as an expert possesses the required qualifications is a question which rests largely within the discretion of the trial court, and the decision to admit or exclude the proposed opinion testimony will not be disturbed unless a clear abuse of discretion is shown. Cantu v. State, 141 Tex.Cr.Rep. 99, 135 S.W.2d 705 (1940). Dobbs testified that she had received a bachelor's degree in psychology and sociology, that she had engaged in...
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