in Re GMAC Commercial Finance, LLC ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00186-CV

In re GMAC Commercial Finance, L.L.C.

Original Proceeding

DISSENTING Opinion

          This is a classic situation in which an appellate court is not equipped to decide the issue presented.  In this post-decision motion, we are asked to determine whether a document, alleged at one time to have been protected by a privilege, has lost that privilege.  The parties have engaged in no discovery about the circumstances under which the document was attached to a brief/appendix filed in this Court.

          If we have jurisdiction to decide this motion, the Court should abate this matter to the trial court for the development of a record upon which the issue could be properly decided.  It is not that I disagree with the Court’s conclusion, I simply do not have the information available to me which is necessary to decide the issue.

          There is a substantial question of whether the inclusion of the document in the appendix constitutes a waiver of the privilege.  Because this document was not produced in discovery, the discovery rules regarding inadvertent production are not applicable.  Prior to the adoption of the discovery rules related to inadvertent production, a fair amount of case law had developed on what must be shown to support a retrieval of a document the parties did not intend to disclose to opposing counsel.[1] It is that body of case law against which we should review these facts to determine if the privilege genie can be reinserted in the magic lamp.  It appears it can be, but I just do not have the information, facts, and briefing necessary to make that determination.

          The only case cited by the majority relies upon our authority to enter temporary orders.  See Monsanto v. Davis, 110 S.W.3d 23, 29 (Tex. App.—Waco 2002, order).  This authority does not support our sealing of the document and for it to remain sealed until it is destroyed.  Nor do we, on the record before us, have any authority to order the return or destruction of copies provided to opposing counsel.

          In conclusion, the trial court should develop the factual record and make the initial determination regarding whether the privilege once held, if any, has been lost.  I do not join this order.  I cannot concur in what the Court has done, so I have no alternative but to dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed July 27, 2005

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[1] “Inadvertent production is distinguishable from involuntary production.  A party who permits access to unscreened documents may, due to inattention, unwittingly--but nonetheless voluntarily--disclose a privileged document. Disclosure is involuntary only if efforts reasonably calculated to prevent the disclosure were unavailing.  Thus, although disclosure does not necessarily waive privileges, a party claiming involuntary disclosure has the burden of showing, with specificity, that the circumstances confirm the involuntariness of the disclosure.  In addition to precautionary measures, other factors to be examined in determining involuntariness include the delay in rectifying the error, the extent of any inadvertent disclosure, and the scope of discovery. This standard is consistent with the approach adopted by numerous federal courts which now determine waiver by evaluating the circumstances of the disclosure.  See Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578, 587-88 (N.D.N.Y. 1989); Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 329 (N.D. Cal. 1985); see also KL Group v. Case, Kay & Lynch, 829 F.2d 909, 919 (9th Cir. 1987); Clady v. County of Los Angeles, 770 F.2d 1421, 1433 (9th Cir. 1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1516, 89 L. Ed. 2d 915 (1986).  Many state courts also take this approach.  See generally McGlynn v. Grinberg, 172 A.D.2d 960, 568 N.Y.S.2d 481 (Sup. Ct. App. Div. 1991); Farm Credit Bank of St. Paul v. Huether, 454 N.W.2d 710 (N.D. 1990); Kanter v. Superior Court, 206 Cal. App. 3d 803, 253 Cal. Rptr. 810 (Cal. App. 2d Dist. 1988); Sterling v. Keidan, 162 Mich. App. 88, 412 N.W.2d 255 (Mich. App. 1987).”

Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 226 (Tex. 1992).

rior to the presentment of the indictment and within the statutory limitation period.”  Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); Shea, 2005 Tex. App. LEXIS 3091, at *11; accord Rodriguez, 104 S.W.3d at 91.

          The complainant’s testimony about how Bronaugh made her sit on his penis fits within the allegations of count two of the indictment.  Therefore, this does not constitute testimony regarding an extraneous offense, and the court did not abuse its discretion by overruling Bronaugh’s objections to this testimony.  See Rodriguez, 104 S.W.3d at 91; Sledge, 953 S.W.2d at 256; Shea, 2005 Tex. App. LEXIS 3091, at *11-12; Brown, 6 S.W.3d at 575-76. 

          Article 38.37, section 2 provides:

          Notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall be admitted for its bearing on relevant matters, including:

          (1) the state of mind of the defendant and the child;  and

          (2) the previous and subsequent relationship between the defendant and the child.

Tex. Code Crim. Proc. Ann. art. 38.37, § 2 (Vernon 2005).

          The complainant’s testimony regarding Bronaugh masturbating in her presence is relevant and admissible under article 38.87, section 2.  See id.; Saenz v. State, 103 S.W.3d 541, 544-45 (Tex. App.—San Antonio 2003, pet. ref’d); Gutierrez v. State, 8 S.W.3d 739, 749-50 (Tex. App.—Austin 1999, no pet.); Walker v. State, 4 S.W.3d 98, 102-03 (Tex. App.—Waco 1999, pet. ref’d).

          Even if admissible under article 38.37 however, the evidence may still be excluded under Rule 403 if its probative value is substantially outweighed by the danger of unfair prejudice.  See Tex. R. Evid. 403; Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

          We must give appropriate deference to the trial court’s determination that the probative value of the evidence in question is not substantially outweighed by the danger of unfair prejudice.  Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).  We must uphold the court’s ruling if it lies “within the zone of reasonable disagreement.”  Wheeler, 67 S.W.3d at 888 (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).

          The appellate court should not conduct a de novo review of the record with a view to making a wholly independent judgment whether the probative value of evidence of “other crimes, wrongs, or acts” is substantially outweighed by the danger of unfair prejudice.  It should reverse the judgment of the trial court “rarely and only after a clear abuse of discretion.”

Moses, 105 S.W.3d at 627 (quoting Montgomery, 810 S.W.2d at 392).

          Factors to be considered in balancing the probative value of evidence against the danger of unfair prejudice include:

(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;

(2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way”;

(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and

(4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

Manning v. State, 114 S.W.3d 922, 926 (Tex. Crim. App. 2003) (quoting Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)); accord Wheeler, 67 S.W.3d at 888.

          The challenged testimony was relevant to the issue of whether Bronaugh sexually assaulted his daughter.  Aside from the complainant’s testimony, the State had little evidence to prove that Bronaugh sexually assaulted his daughter.  Although there was medical evidence that she had been assaulted, the record also contains evidence that she had been sexually assaulted by two others.  Thus, the testimony served compellingly to make it more probable than not that Bronaugh sexually assaulted his daughter.

See Wheeler, 67 S.W.3d at 888.

          The testimony did have the potential to impress the jury in an irrational way, but it required little of the jury’s time to present.  Id. at 889.

          Finally, on the issue of whether the State had a “need” to present the challenged testimony, Bronaugh contends that it would be premature to conclude that the State “needed” to present this testimony during its case-in-chief because he did not deny that he had committed the offense until he took the stand later and testified.  However, this is not the only way to gauge the State’s “need” for the challenged testimony.

          Rather, the issue of whether the State needs a challenged piece of evidence “to prove a fact of consequence” focuses on whether the State has “other probative evidence available . . . to help establish this fact” and whether “this fact [is] related to an issue in dispute.”  Manning, 114 S.W.3d at 926.  As noted, the State’s case essentially boiled down to a swearing match between Bronaugh and the complainant.  The State’s medical evidence could be discounted by the complainant’s sexual history.  Therefore, the trial court was within its discretion to conclude that the State “had a great need” for the challenged testimony.  See Wheeler, 67 S.W.3d at 889.

          The trial court arguably could have ruled either way on the admissibility of this testimony under Rule 403.  We cannot say that the court’s ruling was outside “the zone of reasonable disagreement.”  See Wheeler, 67 S.W.3d at 888-89.  Accordingly, we overrule Bronaugh’s first issue.

The Complainant’s Truthful Character

          Bronaugh contends in his second issue that the court abused its discretion by permitting two of the State’s witnesses to testify regarding the complainant’s truthful character.

          The State called Karen Vogle, the complainant’s second grade teacher, to testify about the complainant’s statements to her about the alleged abuse.  The prosecutor asked Vogle whether she had an opinion regarding the complainant’s character for truth and veracity.  Vogle replied that she believed the complainant.

          The State called Michelle Davis, a counselor who treated the complainant, to testify that the complainant’s conduct was consistent with that of a child who had been sexually abused.  The prosecutor asked Davis whether she had observed any conduct of the complainant which would cause her to question whether the complainant was being truthful.  Davis testified that she had not observed any such conduct.

          When a complainant is impeached with prior inconsistent statements, the State may rehabilitate the complainant with evidence of the complainant’s character for truthfulness under Rule 608(a)(2).[2] Pavlacka v. State, 892 S.W.2d 897, 902 (Tex. Crim. App. 1994).

          “Expert witness testimony that a child victim exhibits elements or characteristics that have been empirically shown to be common among sexually abused children is relevant and admissible under Rule 702 because it is specialized knowledge that is helpful to the jury.”  Gonzales v. State, 4 S.W.3d 406, 417 (Tex. App.—Waco 1999, no pet.); accord Burns v. State, 122 S.W.3d 434, 437 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d); Hitt v. State, 53 S.W.3d 697, 707 (Tex. App.—Austin 2001, pet. ref’d).  However, “expert testimony that a particular witness is truthful is inadmissible under Rule 702.”  Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993); accord Burns, 122 S.W.3d at 437; Hitt, 53 S.W.3d at 707; Gonzales, 4 S.W.3d at 417.

          Bronaugh characterizes Vogle as an expert witness.  We disagree with his characterization.  The record is clear that the State called Vogle as a lay witness to testify about the statements the complainant made to her regarding the alleged abuse.  Bronaugh had previously impeached the complainant with prior inconsistent statements.  Thus, the State properly sought to rehabilitate the complainant with Vogle’s testimony regarding her character for truthfulness under Rule 608(a)(2).  See Tex. R. Evid. 608(a)(2); Pavlacka, 892 S.W.2d at 902.

          Davis properly testified that the complainant exhibited characteristics similar to those of children who have been sexually abused.  See Burns, 122 S.W.3d at 437; Hitt, 53 S.W.3d at 707; Gonzales, 4 S.W.3d at 417.  Davis’s testimony that she did not observe any behavior which would cause her to question whether the complainant was being truthful is not a direct comment on the complainant’s truthfulness.  See Schutz v. State, 957 S.W.2d 52, 73 (Tex. Crim. App. 1997); Burns, 122 S.W.3d at 437.

          Accordingly, the court did not abuse its discretion by overruling Bronaugh’s objections to Vogle’s and Davis’s testimony.  Thus, we overrule Bronaugh’s second issue.

The Complainant’s Attitude About Prior Sexual Experiences

          Bronaugh contends in his third issue that the court abused its discretion by sustaining the State’s objection to the testimony of two daycare workers regarding the carefree nature with which the complainant talked to them about an incident when she was caught acting out sexually with her brother and about being sexually assaulted by her uncle.[3]

          However, the State later withdrew its objection, and the court informed Bronaugh that he could call the daycare workers to give this testimony.  Thereafter, Bronaugh called one of the daycare workers who gave this testimony without objection.

          Because the trial court ultimately allowed the testimony which Bronaugh contends was excluded, we overrule his third issue.  Cf. Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004) (to challenge exclusion of evidence on appeal, defendant must obtain adverse ruling).

The Mother’s Alleged Physical Abuse

          Bronaugh contends in his fourth issue that the court abused its discretion by excluding testimony from Vogle that the complainant told her that her mother was physically abusing her.

          Bronaugh did not make an offer of proof concerning the substance of the testimony he wanted to elicit from Vogle.  Thus, he has not preserved this issue for our review.  See Tex. R. Evid. 103(a)(2); Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); Simmons v. State, 100 S.W.3d 484, 495 (Tex. App.—Texarkana 2003, pet. ref’d).  Accordingly, we overrule his fourth issue.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed June 8, 2005

Do not publish

[CRPM]

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[1]           This was according to the “State’s Second Notice of Intent to Offer Evidence [of Extraneous Conduct].” The State’s original notice listed 19 incidences of extraneous conduct.

[2]           Rule of Evidence 608(a) provides:

            (a) Opinion and Reputation Evidence of Character.   The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

            (1) the evidence may refer only to character for truthfulness or untruthfulness;  and

            (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

[3]           Bronaugh sought to introduce this testimony to discredit Davis’s testimony that the complainant was very hesitant to discuss the allegations against her father.