Brown v. State

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 examina *742 tion, 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 psychologist, without objection from appellant, that the victim had suffered emotional trauma as a direct result of a single traumatic event — the rape. Brown v. State, 692 S.W.2d 146 (Tex.App. —Houston [1st Dist.] 1985). We granted the appellant’s petition for discretionary review to review the decision of the Court of Appeals.

L_L_, the victim, testified that on August 26, 1988, two days before the offense, she received a phone call from a man who identified himself as “Sean.” Sean told her he was doing a telephone survey for social clubs in Bryan. The two began talking and carried on a lengthy conversation covering a variety of topics, including their interests and hobbies. L_L_ testified that “Sean” sounded like a nice, articulate and interesting person. At the end of the conversation, “Sean” asked L_L_if she would come to his place. She declined and the conversation ended. The next day, Saturday, August 27, “Sean” telephoned L_L_again. This phone conversation lasted approximately 30 minutes and “Sean” asked L_ L_ to meet him the next day and go bicycle riding. L_ L_ told “Sean” that she might meet him. However, the next day, Sunday the 28th, L_L_did not keep their appointment. That night at approximately 9:30 “Sean” called L_ L_ again. “Sean” asked L_L_to come to his apartment. Initially L_ L_ refused but after “Sean” continued to press her, she agreed. She drove to “Sean’s” apartment and knocked on the door. “Sean”, whom L_ L_ identified as appellant, answered the door. L_L_testified that she was shocked when she saw that appellant was black because over the phone he sounded white. Because of this revelation L_ L_ turned to leave. Appellant pulled her into the apartment and locked the door. Thereafter appellant raped her. After the attack, appellant let L_L_leave. She then went home and called a friend and told her what had happened. The next day appellant went to a local hospital and had a rape kit examination. The examination revealed that L_ L_ had engaged in sexual intercourse in the recent preceding hours. After reciting the events surrounding the offense, L_L_was allowed to testify over appellant’s objection how the rape had affected her life in the months since the rape.

Appellant testified that he first spoke with the victim who identified herself as “Tammy” on Friday, August 26, 1983, when he was trying to sell coupon books over the telephone for a company called Effective Marketing Service. According to appellant he spoke with “Tammy” between 8:00 p.m. and 9:00 p.m. and then she came to his apartment uninvited at 9:45 p.m. He invited her in and offered her a glass of wine. According to appellant he did not make any sexual advances to appellant and after an hour he asked her to leave because he was expecting other company. Appellant testified that at the time of the alleged *743 offense on Sunday, August 28, he was visiting with a sick friend. He testified that he went to Pam Gibson’s house at approximately 9:00 p.m. to check on her as she had been sick all weekend. He fell asleep at Gibson’s house and left when she woke him up at 2 a.m. and asked him to leave. Appellant vehemently denied that he had raped L_L_and testified that he had no physical contact with her whatsoever.

Pam Gibson, appellant’s friend, testified that she was sick on August 28. She testified that she remembered appellant coming to her house that day but she did not remember what time he came or what time he left. She did remember getting up during the night, finding appellant asleep in her house and telling him to go home.

The determination of whether evidence is relevant to any issue in the case lies within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. Werner v. State, 711 S.W.2d 639 (Tex.Cr.App.1986); Johnson v. State, 698 S.W.2d 154 (Tex.Cr.App.1985).

“Relevancy is defined to be that 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.” Plante v. State, 692 S.W.2d 487, at 491 (Tex.Cr.App.1985), quoting from Waldrop v. State, 138 Tex.Cr.R. 166 , 133 S.W.2d 969 (Tex.Cr.App.1940).

After reviewing the evidence adduced at trial, I would hold that the trial court did not abuse its discretion in admitting the evidence. It has long been the rule that when a violent crime has been committed, evidence of the physical injuries sustained by the victim is admissible. Hafti v. State, 487 S.W.2d 745 (Tex.Cr.App.1972) (robbery by firearms); Robinson v. State, 457 S.W.2d 572 (Tex.Cr.App.1970) (assault with intent to murder); Levell v. State, 453 S.W.2d 831 (Tex.Cr.App.1970) (robbery by firearms); Maxwell v. State, 362 S.W.2d 326 (Tex.Cr.App.1962) (rape by force); Mack v. State, 307 S.W.2d 588 (Tex.Cr.App.1957) (statutory rape). As the Court of Appeals correctly pointed out, sexual intercourse perpetrated by threats and force is a violent act. lies, Rape Trauma Syndrome, 50 Mo.L.Rev. 947, 949 (1985). Furthermore, it is common knowledge that a victim of a sexual assault often suffers not only physical but psychological and emotional injuries. lies, Rape Trauma Syndrome, 50 Mo.L.Rev. 947 (1985); Admission of Expert Testimony on Rape Trauma Syndrome, 75 J.Crim.L. & C. 1366 (Winter 1984). Evidence of the victim’s emotional and psychological state after the incident tends to buttress the victim’s version of the sexual assault, especially so in cases such as the instant case where the defensive theory is that the sexual assault never occurred. I see no reason to differentiate these psychological and emotional injuries from the physical injuries that a victim may suffer. Baldwin v. State, 697 S.W.2d 725 (Tex.App.—Corpus Christi 1985, petition refused); Burge v. State, 73 Tex.Cr.R. 505 , 167 S.W. 63 (Tex.Cr.App.1914). The testimony was both relevant and admissible.

Under the evidence presented, the sole issue was whether a rape had occurred, and the victim’s testimony tended to make that proposition more probable.

The portion of the Court of Appeals’ opinion which asserts that consent was the main issue in the case is clearly erroneous. Consent was not the main issue. The defense theory was not that L_ L-agreed to have sexual intercourse with appellant. Rather appellant testified that no sexual intercourse had occurred. Thus the rationale that such evidence was admissible to show that the sexual intercourse was not consensual is not applicable to the instant case.

Believing the evidence to have been admitted properly, I concur in the result reached.

ONION, P.J., and DAVIS, J., join in this opinion.