Billy Gerald Crutcher v. State ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-384-CR





BILLY GERALD CRUTCHER,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 42,603, HONORABLE JACK W. PRESCOTT, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated assault. Tex. Penal Code Ann. § 22.02 (West 1989 & Supp. 1994). The district court assessed punishment, enhanced by a previous felony conviction, at imprisonment for twenty years.

Kimberly Alton testified that she was driving to work when a pickup truck cut in front of her in traffic, forcing her to swerve to avoid a collision. After this happened, Alton "kind of just threw my hands up, you know, like that (indicating) like you idiot or something." The driver of the pickup, identified by Alton at trial as appellant, responded with an obscene gesture. Alton responded in kind. Appellant moved into the lane to the right of Alton, and just in front of her vehicle. "He pulled a gun up into the back window and he just held it up . . . and then he put a magazine up with this hand and just popped it in the handle of the gun." After loading the weapon, appellant pointed it at Alton. Alton slowed to a stop. Appellant did the same, continuing to point the pistol at Alton. Appellant then sped away, but not before Alton wrote down his license number.

Appellant's defense was misidentification. Alton was unable to positively identify appellant's picture in a photo spread. Defense witnesses testified that appellant did not own a pistol or a hat of the sort Alton testified the driver of the pickup was wearing. Another defense witness testified that he was with appellant at the time and place in question and that no incident of the sort described by Alton took place. It was appellant's theory that another driver in a truck similar to his was the guilty party, that Alton lost sight of this truck in traffic, and that she wrote down appellant's license number by mistake.

In point of error two, appellant contends the district court erred by admitting evidence at the guilt stage that Alton received counseling as a result of this incident. The testimony to which appellant refers was adduced during questioning of Alton by the prosecutor.

Q. Kim, let me just ask you first of all has this case caused you a lot of personal problems since the commission of this?

A. Yes.

MR. NOELL [defense counsel]: Your Honor, I object to that. That's irrelevant at this point in the trial.

THE COURT: Where is that leading to, counsel?

MR. CARROLL [prosecutor]: Well, Judge, she's obviously sitting there visibly shaken from this thing.

THE COURT: That's obvious, Mr. Carroll. Where are you leading to with your question was my question.

MR. CARROLL: I was going to ask her if she's had some professional counseling as a result of this incident, Your Honor.

THE COURT: All right. That's fine.

MR. NOELL: Your Honor, again I'm going to object, irrelevant and immaterial and has no place in the guilt or innocence phase of the proceeding.

THE COURT: Objection is overruled.

BY MR. CARROLL:

Q. Have you had to have some counseling?

A. Yes.

Q. Who have you been seeing for problems you've had from this?

A. Mrs. Diane Campbell.

Q. Does she practice in Killeen?

A. Yes, sir.

Q. And how may times have you had to see her?

A. Oh, my goodness, numerous. I was seeing her every week up until the first part of April. I believe March 26 was my last time every week and then I had several family emergencies and I couldn't see her in April. I went to see her, back to see her last Friday.

Q. Did she come to court with you today?

A. Yes, she did.

We begin by overruling the State's contention that appellant failed to preserve this point for review. After the prosecutor informed the court that he intended to question Alton about the counseling she had received, appellant objected that such testimony was irrelevant at the guilt stage. The court overruled this objection. Under the circumstances, appellant was not required, as the State would have it, to object to each individual question about Alton's counseling in order to preserve error.

We also believe that the admission of this testimony was error under the rationale of Brown v. State, 757 S.W.2d 739 (Tex. Crim. App. 1988). Brown was a prosecution for sexual assault in which the defense was alibi. The State was permitted to offer evidence at the guilt stage that, since the assault, the victim had twice attempted suicide and otherwise manifested emotional trauma. The Court of Criminal Appeals held that because there was no dispute that the victim had been sexually assaulted and that this had been a traumatic event, the evidence regarding her emotional reaction to the assault was irrelevant to any issue at the guilt stage. 757 S.W.2d at 741; see also Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (testimony regarding attempted murder victim's future hardship as paraplegic was irrelevant to any guilt issue); Tex. R. Crim. Evid. 402.

It was undisputed that someone intentionally or knowingly threatened Alton with imminent bodily injury by use of a firearm. There was no dispute that this was a traumatic event. As in Brown, the only disputed issue at the guilt stage was appellant's identity as the assailant. We are bound to hold that the testimony regarding the counseling received by Alton following the offense was irrelevant to any guilt issue. ⁽¹⁾

We also hold that the erroneous admission of the counseling testimony was harmless. Tex. R. App. P. 81(b)(2). Alton cried while on the witness stand, and it was obvious to the jury that this experience had been a traumatic one for her. Defense counsel used this in his jury argument, suggesting that Alton's ability to identify her assailant was impaired by her emotional reaction to the offense. We are satisfied beyond a reasonable doubt that Alton's brief testimony describing the counseling she received after the offense did not contribute to the finding of guilt. Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989). Any effect the testimony might have had on the punishment assessed is irrelevant, as testimony concerning the emotional impact of this offense on Alton would have been admissible at the punishment stage. Stavinoha v. State, 808 S.W.2d 76 (Tex. Crim. App. 1991); Miller-El, 782 S.W.2d at 895-96. Point of error two is overruled.

In point of error one, appellant contends the evidence is insufficient to prove his identity as the person convicted in Bell County cause number 39,379, the conviction used for enhancement of punishment. State's punishment exhibit one is a properly authenticated penitentiary packet containing a certified copy of the judgment in cause number 39,379. The judgment reflects that Billy Gerald Crutcher was convicted in that cause of possessing amphetamine. The exhibit also contains a photograph and a detailed physical description of the Billy Gerald Crutcher imprisoned as a result of the conviction. This information was sufficient to permit the district court to identify appellant as the person previously convicted. Littles v. State, 726 S.W.2d 26, 32 (Tex. Crim. App. 1987) (opinion on motion for rehearing); Daniel v. State, 585 S.W.2d 688, 691 (Tex. Crim. App. 1979); Gollin v. State, 554 S.W.2d 683 (Tex. Crim. App. 1977); Simms v. State, 848 S.W.2d 754, 756 (Tex. App.--Houston [1st Dist. 1993, pet. ref'd). Appellant's attempt to distinguish these opinions on their facts is unpersuasive. Point of error one is overruled.

The judgment of conviction is affirmed.

Before Justices Powers, Aboussie and Jones

Affirmed

Filed: June 22, 1994

Do Not Publish

1.   The State argues that proof of the corpus delicti is always necessary, even in cases in which the fact of the offense is not seriously disputed, and that the proper objection to the victim-impact testimony in Brown (and by implication in this cause) was not that it was irrelevant, but that the probative value of the testimony was substantially outweighed by the danger of unfair prejudice and confusion of the issues at the guilt stage. Tex. R. Crim. Evid. 403. Until Brown is revisited by the Court of Criminal Appeals, however, we are bound to follow it.