The opinion
COHEN, Justice,
dissenting.
I respectfully disagree with the court's overruling of the sixth ground of error, which complains that the trial court erred in admitting evidence concerning the victim’s two suicide attempts, weight gain, job loss, fear of being outside and loss of confidence, all of which occurred in the eight months between the rape and the trial. The victim testified that these were caused by the emotional distress of the rape. The majority holds that the appellant’s objection to this line of testimony was waived, and, additionally, that the testimony was properly admitted.
It is noteworthy that the State’s brief responding to ground of error six does not mention waiver, presumably because the appellant made at least four specific objections, each of which was overruled. The first is found at page 273 of the statement of facts. There the appellant objected “to this line of testimony and this line of questioning” on the ground that “the prejudicial *153 effect and inflammatory nature of that line of questioning outweighs any probative value that it may have in the trial of this cause.” This objection was made before any of the challenged testimony was admitted. The appellant objected the second time, on the same ground, at page 274 and was again overruled. The appellant objected the third time at page 275, on the same ground, and was again overruled. The appellant objected the fourth time at page 276, and the objection was overruled.
The victim was asked what had changed about her life since the rape occurred, what had changed about her job, what had changed about her personal life, what she was not able to do “now” (in April 1984, eight months after the rape). She testified that she had lost her job, could not concentrate or work, feared going outside, and was hospitalized for a suicide attempt about one month after the rape and for a second suicide attempt five or six months thereafter.
The only portion of the statement of facts referred to by the majority or the parties concerning this ground of error are pages 273-278. Within these pages almost as much space is taken up by the appellant’s objections as by testimony.
In Roeder v. State, 688 S.W.2d 856 (Tex.Cr.App.1985), the Court of Criminal Appeals held:
The primary purpose of the specific objection rule is to ensure that the trial court and opposing counsel are informed of the ground of objection so that first, the trial judge can rule on the objection, and second, opposing counsel may be afforded an opportunity to remove the objection or in some way cure the alleged error. Zillender v. State, 557 S.W.2d 515 (Tex.Crim.App.1977).
In accordance with these policies, a number of exceptions to the general rule that a party cannot complain on appeal to the overruling of a general objection or an imprecise specific objection have been created. 1 McCormick & Ray, Evidence, sec. 25, page 25 (2nd edition 1956). Thus, where the correct ground of exclusion was obvious to the judge and opposing counsel, no waiver results from a general or imprecise objection. McCormick & Ray, supra. Zillender v. State, supra at 517.
This record demonstrates that both the trial court and the prosecutor were aware of the appellant’s objections to the entire line of testimony concerning emotional distress and physical injury resulting therefrom occurring months after the rape. Although the appellant never requested or received a “running” objection, his repeated objections to the entire line of testimony put the court and the State on notice of his complaint. That explains why the waiver analysis of the majority opinion was not made by the State. If this judgment is to be affirmed, it must be on the merits, because there was no waiver.
The evidence of the future emotional distress was admitted on direct examination of the victim during the State’s main case. It did not come in rebuttal to any defense evidence, nor in response to any “door” opened by the appellant on cross-examination. No cross-examination had occurred when the evidence was admitted.
The State’s sole argument in the trial court was that the evidence was admissible “to show the effect this particular event has had on her life as related to her credibility and believability.” At this point in the trial, the victim’s credibility had not been attacked on cross-examination, nor had she been contradicted by any witness. Thus, her credibility was being bolstered before it was impeached, although no bolstering objection was made.
It is significant that the appellant’s sole defense was alibi. There was no claim of consent. The majority’s astonishing claim to the contrary has no support in this record. Even if emotional distress months after a traumatic event is evidence that the event occurred, or further, that it occurred without the victim’s consent, that would not justify the admission of such trauma in this case where neither the act of intercourse nor the absence of consent were ever questioned.
*154 The appellant testified that the only time he was with the victim was the evening before the rape and that they did not have intercourse then or ever. He denied being with her at all on the day of the rape. The victim testified that the only time she was with the appellant was the night of the rape, when she went to meet him at his motel. The appellant was a total stranger to her, except for phone calls he made to her in the prior two days, at first as part of a supposed telephone survey, and then to invite her to his motel room.
As stated in Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972), the first inquiry in determining whether evidence is admissible is a comparison of the probative value and the prejudicial or inflammatory aspects of the evidence. See Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Crim.App.1979).
The only disputed fact issue in this case was whether it was the appellant who raped the victim. I believe there is no rational relationship between the victim’s collateral trauma and whether the defendant was the individual who raped her. Such trauma would presumably occur regardless of the offender’s identity. There is no indication in the record that this victim’s particular trauma was greater or different because of the rapist’s identity, so as to make it more likely that the appellant was the offender. 1 The evidence of collateral trauma was thus not material because there was no rational relationship between it and the controlling fact issue in dispute, which was solely whether the defendant was the person who committed the rape.
Rule 403 of the Texas Rules of Evidence and of the Federal Rules of Evidence provides for the exclusion of relevant evidence in some circumstances. These rules provide:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
This is a codification of the rule quoted above from Albrecht and Ruiz. Compare Bordelon v. State, 683 S.W.2d 9 (Tex.Crim.App.1985); Maynard v. State, 685 S.W.2d 60 (Tex.Crim.App.1985). See also Tex. Code Crim.P.Ann. art. 38.02 (Vernon 1979); Weir and Bernard, The Application of the New Rules of Evidence to Criminal Proceedings, 48 Tex.B.J. 518 (1985).
The collateral trauma evidence in this case should have been excluded, even if relevant, because its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. There was no dispute concerning whether the victim had undergone a traumatic event, in general, or a rape, in particular. The probative value of such evidence in proving that a rape occurred was, therefore, insignificant or wholly absent. There is little doubt, however, that the victim’s suffering prejudiced the jury against the appellant, both on guilt and punishment. While it may be reasonably argued that evidence of collateral trauma should come in at the punishment stage, because convicted defendants who have caused the most harm should get the most punishment, the admission of such evidence at the guilt stage was calculated to confuse the sole disputed issue in the case, the identity of the offender, and to mislead the jury from that question by creating justifiable sympathy for an injured victim.
The danger of confusion of issues is especially great in a ease like this one, where the indictment gives no notice, either to the defendant or to the jury, that the defendant must defend against and the jury must evaluate evidence of emotional distress during the eight months after the crime. If courts are going to admit such evidence, defendants will need pre-trial discovery of medical records and the victim’s circumstances, as occurs in a personal injury case. *155 Further, courts should expect lengthy dispute over whether the victim could work eight months after the injury, whether the victim was crying eight months after the injury, whether suicide attempts eight months after the injury were due to the act alleged in the indictment, and whether the victim’s emotional distress months after the injury truly existed and was caused by the crime alleged. Litigation of such issues is now foreign to Texas criminal practice. Letting them in, in this case through the back door, in order to prove the uncontested element of lack of consent, is likely to have unexpected and undesirable consequences.
We do not have in Texas at this time a bill of particulars practice. There is little that the indictment must say about the offense itself, much less the victim’s collateral trauma. Our discovery practice is almost non-existent compared to discovery available in a civil case. The absence of notice that such testimony will be offered and of any opportunity to investigate it before trial should give caution to anyone concerned with preserving a defendant’s right to a fair trial. The risks are serious enough at the punishment phase, after guilt has been determined, but the likelihood of unfair prejudice, confusion of the issues and misleading the jury, as well as undue delay, is even greater at the guilt stage.
The harm from the evidence offered in the instant case should not be underestimated. A severely injured victim helps the State prove guilt in a criminal case at least as much as a severely injured victim helps the plaintiff prove liability in a civil case. Juries are more likely to convict when there is an injured victim than when there is an uninjured victim, and they are more likely to convict when there is a severely injured victim than when there is a slightly injured victim. Focusing the jury’s attention on the victim’s severe injuries is a winning trial tactic for the plaintiff, i.e., the State in a criminal action, because it tends to distract the jury’s attention from weaknesses in the plaintiff’s case. In the case at bar, the State’s key witness, in response to random phone calls from a male purporting to conduct a market survey, voluntarily left her home at night for a private meeting with this total stranger, in his motel room, had sexual intercourse, but had little or no evidence of physical injury and no witnesses to the offense. The State announced its concern that the witness might not be believed and offered the evidence of collateral trauma solely to bolster her credibility, even before it was attacked. The State clearly understood the persuasive value of the evidence.
The cases cited by the majority do not require an affirmance, although several may conceivably allow one. In Hafti v. State, 487 S.W.2d 745 (Tex.Crim.App.1972), a robbery by firearms case, the Court held that “where an indictment alleges violence, the state might prove the injuries sustained as result of such violence.” Id. at 747 . This is the entire discussion of the subject, and there is no indication that anything but physical injuries received and apparent at the time of the robbery came into evidence. Nothing indicates that emotional distress suffered months after the robbery was admitted into evidence, as in the instant case.
In Robinson v. State, 457 S.W.2d 572 (Tex.Crim.App.1970), an assault to murder case, the entire discussion again consisted of one sentence, which stated: “The offense charged being assault with intent murder, there appears no error in the admission of evidence of the nature and extent of the injuries inflicted upon the assaulted party and the care required for them.” Id. at 574 . As in Hafti, supra, there is no suggestion that the evidence admitted showed emotional distress suffered months after the attack.
In Levell v. State, 453 S.W.2d 831 (Tex.Crim.App.1970), a robbery by firearms ease, the entire discussion consisted of the following:
The indictment charged robbery by assault, violence, and putting into fear. The state had the right to prove all three. On the allegation of violence, the state may prove the injuries sustained as a *156 result of such violence. In fact, such is the best proof thereof.
Id. at 832 . As in Hafti and Robinson, supra, there is no suggestion that the injuries described resulted from emotional distress occurring months after the attack. The injuries apparently were those the victim suffered as a result of being shot during the robbery.
In Mack v. State, 307 S.W.2d 588 (Tex.Crim.App.1957), the offense was statutory rape. The evidence indicated that the victim suffered serious lacerations during the rape, and the evidence admitted concerned these wounds and the amount of blood lost as a result of them. As in Hafti, Robinson, and Levell, supra, there is no indication that the evidence concerned emotional distress suffered months after the event.
In Maxwell v. State, 362 S.W.2d 326 (Tex.Crim.App.1962), the offense was rape by force, and the victim was permitted to exhibit scars on her head where she was struck during the rape with an iron, which rendered her unconscious. The Court noted that the appellant was charged with an assault, as well as with rape, and that the State’s proof of force was admissible to prove the assault and the force accompanying the rape. Id. at 328 . As in Hafti, Robinson, Levell, and Mack, supra, there was no evidence of emotional distress suffered months after the event.
There are two cases relied on by the majority which tend to support its holding. In Wood v. State, 80 Tex.Crim. 398 , 189 S.W. 474 (1916), the Court held that the victim’s mother was properly allowed to testify that upon making a prompt outcry to her parents the day after the rape occurred, the victim was nervous and crying, and she continued to have nervous crying spells for a month or more when the rape was mentioned. Id. at 476-77 . The Court stated, “This will be evidence of the severity of the shock to her mental and physical nature.” Wood is distinguishable from the instant case in two respects. The most important is that consent was raised as a defense. Apparently, the Court concluded that evidence of the severity of the shock to the victim’s mental and physical nature was relevant to negate the evidence of consent. The second distinction is that the evidence was far less prejudicial. It made no mention of job loss, general inability to work, general fear of the outdoors, and multiple suicide attempts. The emotional distress in Wood was limited to crying when the rape was mentioned.
In Burge v. State, 73 Tex.Crim. 505 , 167 S.W. 63 (1914), the original opinion held that it was proper to admit evidence that the victim was nervous and crying for two days immediately following the assault. The Court emphasized that this was part of the victim’s condition at the time she made prompt outcry and that prompt outcry may properly be shown in the State’s main ease. The opinion noted that the evidence of her condition two days after the event was “not too remote from the transaction to render the testimony inadmissible, and, ... we think it is permissible for the state to show that this state continued for a reasonable length of time.” Id. at 66.
In the opinion on motion for rehearing, the Court held that it was permissible to admit evidence showing that the victim’s nervous condition lasted for “about a week.” Id. at 71. For this proposition, the Court cited Jacobs v. State, 66 Tex.Crim. 146 , 146 S.W. 558 (1912). As in Wood, supra, the facts in Burge are distinguishable from the instant case because a week of crying immediately following the event, admitted to prove prompt outcry, is not comparable to eight months of emotional distress and multiple suicide attempts. Further, the victim’s prompt outcry in the instant case was undisputed.
Finally, Jacobs v. State, cited as authority in Burge , is distinguishable, because the defense was consent. 146 S.W. at 561 . Further, the victim suffered physical injuries during the attack for which she was confined to her bed “off and on” for two or three weeks. Id. at 560. The trauma mentioned in Jacobs was physical injury suffered during the rape and did not consist of emotional distress months later.
*157 The majority has thus failed to cite a single rape case in which life-threatening, generalized, incapacitating emotional distress, occurring months after the crime, was admitted in the absence of a consent defense. The authorities in the majority opinion do not compel an affirmance and allow it only upon a significant extension of the holdings in the cases.
I would hold that the error was preserved for appellate review and that the evidence admitted was not material, was harmful, and that its prejudicial effect, under the particular facts of this case, vastly exceeded its probative value. For these reasons, the judgment should be reversed.
. Certain trauma might tend to establish identity, such as a healthy victim being infected during a rape with a venereal disease, followed by proof that the defendant suffered from the same contagious disease at the time of the rape.