Pope v. State

ON MOTION FOR REHEARING

JAMES, Justice.

We grant the State’s motion for rehearing and withdraw our prior opinion. The following is now the opinion of the court.

A jury convicted David Shawn Pope of aggravated sexual assault and assessed punishment at forty-five years’ imprisonment. On appeal, he complains that the trial court reversibly erred: 1) by admitting spectrographic evidence; and 2) by giving unconstitutional jury instructions regarding parole and good time. We overrule appellant’s points of error, and affirm the judgment of the trial court.

The record shows that at approximately 10:15 p.m. on July 24, 1985, a man came to the front door of S_L_’s apartment and asked, “Is Pat there?” When S_ L_, the complainant, replied that no one named Pat lived at that apartment, the man left.

At approximately 6:00 a.m. on July 25, S_L_awoke to find a man standing over her, holding a steak knife. He raped her. After the assault, S_L_got up from her bed, followed appellant toward the patio doors and stood next to him. Subsequently, the man placed S_!_L_ in a closet, warned her, “Now don’t come out for a long time and don’t scream and don’t tell anybody, because remember I know where you live,” and fled. She waited a short time in the closet and then called the police.

Complainant described her rapist to the police as a young white male, around 5' 8" tall, 140 pounds, blond, slim, very tan, and wearing beige pants and no shirt. She reported that the steak knife the man held matched a set of four that she owned. After the perpetrator left her apartment, S_L_found only three from the set. While the police were at her apartment on July 25, the complainant received a telephone call from a man she referred to as “the rapist.” Complainant recognized the voice and handed the phone to a police officer.

On July 27 complainant again received a call from the rapist. Complainant was away from her home, and her answering machine recorded the call. She turned this tape over to police, and the tape was admitted into evidence and played for the jury.

Complainant was called again on July 29. The caller said that on the night of the rape he had knocked on her door and asked for Pat. This call went unrecorded because complainant answered the telephone. S_L_’s answering machine only recorded calls if she did not pick up the telephone receiver. Complainant bought a machine to record calls as she talked.

On August 2, she received a fourth call from the perpetrator. The call lasted approximately ten minutes and the perpetrator called back a short time later. At police request, the complainant engaged in an extended conversation with him. The tape of these conversations was admitted into evidence as well. The complainant identified the appellant in open court as the man who raped her. She also testified that because she recognized his voice from the assault, appellant was the telephone caller. Although complainant was unable to pick out the appellant in a photographic lineup, she did identify appellant in a live lineup on August 28.

The State next called William David Thurman, a Garland police officer who arrested appellant on August 28, 1985, at 6:30 a.m. on the premises of the Eastgate Apartment complex where the complainant lived. Officer Dennis Wheatley testified that he found a OVfe" knife with the tip broken off and a pair of white pants in the trunk of appellant's car.

Officer Wheatley further testified that he had arranged for appellant voluntarily to make a “control” recording of his voice, reading parts of the taped transcripts using complainant’s recording equipment. Officer C.G. Young testified that he was present with appellant when the recording was made and that the appellant was informed that the police wanted to compare his voice sample to the voice on the complainant’s recordings.

Larry Howe Williams, a Houston police officer, testified that he was a voice identification examiner and had taken around 1,000 spectrograms. Williams, testifying as an expert spectrograph examiner, stated that voice print identification is a process by which a spectrogram is produced by passing sound waves through a spectrograph such that known and unknown voices can be compared.

The State next called Dr. Henry Truby as an expert in the science of spectrogra-phy and bio-acoustics, holding a Ph.D. in Acoustic Phonetics and having worked in the field for 40 years. Dr. Truby, after explaining how spectrography works, testified that he had compared spectrograms of the appellant’s voice on the control tape to spectrograms of the voice on the complainant’s answering machine tapes and, in his expert opinion, both tapes recorded the same voice — that of appellant.

The defense called Stuart R. Ritterman, a Professor of Communicology at the University of South Florida, as an expert to dispute the scientific validity of spectrogra-phy. The defense also called Craig Furche, a friend of appellant, who testified that appellant stayed and worked with him on and off during July and August 1985, and that he could not remember appellant not riding to work with him at around 6:30 a.m. the morning of the rape.

The appellant testified on his own behalf that he had lived at the Eastgate Apartments until June 1985 when he was evicted. The appellant denied committing the rape, insisting that at the time he must have been either asleep or on his way to work because that was what he usually did at 6:00 a.m. on weekdays. On cross-examination, appellant testified that he had lived out of his car on the Eastgate grounds on and off during July. Appellant testified that he made the control voice tape to prove his innocence and that he was aware of the intended voice comparison.

In rebuttal, the State called police officer Larry Wilson who testified that on October 30, 1985, appellant told Wilson that he had probably been sleeping in his car on the night of the rape and did not mention his friend Craig Furches. The State also called Linda Gilíes, an assistant manager of the Eastgate Apartments, who testified that appellant was evicted in June 1985 and created a problem by continuing to show up on the Eastgate grounds. Gilíes further testified that the appellant had a bad reputation for truthfulness in her opinion.

The jury found appellant guilty of aggravated sexual assault. At punishment, the appellant testified on his own behalf, continuing to assert his innocence. The jury assessed punishment at 45 years’ confinement in the Texas Department of Corrections.

Appellant complains that the trial court erred in admitting the spectrographic evidence against him. We believe this question on the admissibility of “voice-print” evidence to be of first impression in Texas. We need not, however, address this issue because the overwhelming evidence against appellant renders this error, if any, harmless. In determining whether there was harmful error in admitting evidence that we assume but do not decide was improper, the facts and circumstances of the individual case must be considered. Bass v. State, 622 S.W.2d 101, 104 (Tex.Crim.App.1981).

The complainant had the opportunity clearly to view her attacker. She testified that she stood right next to him near her patio doors after the rape. S_ L_ identified the appellant as the rapist in a live lineup as well as in open court. She had ample opportunity to hear the perpetrator’s voice during the incident and over the phone. Complainant testified that the voice of appellant was the same voice that she heard at the rape and on the telephone. The jury also had the opportunity to hear the tapes from complainant’s answering machine and to compare that voice with the appellant’s. The police found a knife and a pair of slacks matching the description of those used during the rape in the trunk of appellant’s car. The jury was able to compare the knife found in the car with one from S_L_’s set.

Appellant’s alibi witness, Furches, could not remember precisely where appellant was on the morning of the offense. Furch-es testified that appellant probably was with him because they usually rode to work together around 6:00 a.m. on weekdays. Conversely, Wilson testified that appellant told him he may have been sleeping in his car on the apartment complex grounds on that date. Against these general and conflicting statements is juxtaposed specific evidence identifying appellant as the assailant.

Where there is not a reasonable possibility that improperly admitted evidence contributed to an appellant’s guilt, reversal is not required. Bird v. State, 692 S.W.2d 65, 70 (Tex.Crim.App.1985); TEXrR.APP.P. 81(b)(2). In this case we conclude that the minds of the average jury would not have found the State’s case less persuasive had the testimony been excluded. See Bird, 692 S.W.2d at 70. The error, if any, was harmless beyond a reasonable doubt. The role of the spectrograms was cumulative. They did not contribute to the conviction. See United States v. Addison, 498 F.2d 741, 747 (D.C.Cir.1974). Appellant’s first point of error is therefore overruled.

In appellant’s second and third points of error, he complains that the trial court erred by giving the instructions on parole and good time laws required by article 37.-07, section 4(a), Texas Code of Criminal Procedure. The court of criminal appeals has declared these instructions to be unconstitutional. Rose v. State, 752 S.W.2d 529, 535, 537 (Tex.Crim.App.1987), modified on rehearing, (Tex.Crim.App.June 15, 1988). Thus, the trial court erred in including these instructions in the charge to the jury. We must therefore determine whether such error requires reversal.

The standard to be used to determine whether the charging error in this case was harmful is prescribed by rule 81(b)(2), Texas Rules of Appellate Procedure. Rose, on reh’g at 553. That rule states:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

The application of this rule in this case is remarkably similar to its application in Rose.

Similar to the instruction in Rose, the trial court gave the following instruction prior to the parole law instruction:

You are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are, consequently, no concern of yours.

This instruction had the same curative effect in this case as it had in Rose, although it was given in Rose subsequent to the court’s charge on parole law.

If anything, the facts of this case we have noted above called for a harsher sentence than the jury assessed. Not only did appellant rape S_L-at knifepoint, he continued to call her, threatening to kill her. Consider the facts of this case no less heinous than those in Rose. The jury could have sentenced appellant to 99 years or life imprisonment, and imposed a $10,000 fine. The State asked the jury to sentence appellant to not less than 75 years’ imprisonment. Instead, the jury assessed appellant’s sentence midrange at 45 years’ imprisonment. In Rose, appellant had five prior felony convictions, whereas appellant in the instance case had none. However, in Rose, appellant received the maximum sentence of life imprisonment, while appellant in the instance case received far less than the maximum sentence.

After carefully viewing the record of the instant case in light of Rose and rule 81(b)(2), we conclude, beyond a reasonable doubt, that the error in giving the jury the parole law instruction made no contribution to the punishment assessed by the jury. We therefore overrule appellant’s second and third points of error.

AFFIRMED.