Williams v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

A jury found appellant, Kyle Steven Williams, guilty of telephone harassment. See Tex.Penal Code § 42.07(a)(2). The trial court assessed appellant’s punishment at 90 days jail time and a $500.00 fine, both probated for six months. The Fourteenth Court of Appeals affirmed. Williams v. State, 850 S.W.2d 784 (TexApp. — Houston [14th Dist.] 1993). We granted appellant’s petition for discretionary review, pursuant to Texas Rule of Appellate Procedure 200(c)(2), to determine whether the court of appeals erred in holding that the trial court did not abuse its discretion in excluding expert testimony concerning appellant’s psychological profile. We now affirm.

On January 30, 1991, Kim DiFrancesco was working at a Whataburger restaurant in northwest Houston when, at approximately 12:55 a.m., she received a telephone call. The caller informed DiFrancesco that “four armed men” were watching the restaurant and that he wanted to give her instructions. The caller subsequently instructed DiFran-cesco to perform sexual acts with another Whataburger employee. DiFrancesco and her coworker pretended to comply with the caller’s requests. DiFrancesco informed two deputy sheriffs, who were in the restaurant at that time, of the call. The deputies succeeded in tracing the call while DiFrancesco remained on the line with the caller. DiFrancesco later identified the voice of appellant as that of the caller.

On January 30,1991, at approximately 1:23 a.m., Pam Davis, an employee at another Whataburger restaurant in northwest Houston, received a telephone call. The caller told Davis that two men were going to rob her and shoot her if she did not cooperate with his demands. The caller then proceeded to instruct Davis and another coworker, Roderick Williams (Roderick), to perform sexual acts. The caller spoke with both Davis and Roderick. Both Davis and Roderick later identified the voice of appellant as that of the caller.

At trial, appellant proffered the testimony of Jerome Brown, a clinical psychologist. In appellant’s offer of proof, Brown testified as to the psychological profile of the type of person who would make harassing telephone calls of a sexual nature. Brown testified that such an individual is typically passive and avoids open conflict, is confused about his sexuality, is basically hostile, and has a history of impaired relationships with other people. Brown also testified that one who makes harassing telephone calls of a sexual nature does so compulsively and repetitively, and that a single such act would be unlikely.

Brown then testified as to his evaluation of appellant. Brown’s evaluation of appellant consisted of a battery of psychological tests and an interview. Brown’s conclusion was that appellant was an “overachiever,” was “very rule-bound,” and was “an extremely moralistic individual.” The following exchange then occurred between appellant’s trial counsel and Brown:

Counsel: Did any of these characteristics — are any of these characteristics consistent with the type of personality you were talking about who commits, or typically ... commits this type [of] offense?

Brown: Typically their kind of personality profile would be almost the opposite of that kind of person.

Acting upon the State’s objection, the trial court excluded Brown’s testimony. The court of appeals affirmed the trial court’s ruling, citing Texas Rule of Criminal Evidence 702.¹ The court of appeals opined that Brown’s testimony was a “character judgment” and did not constitute specialized knowledge of the type contemplated by Rule 702.

Appellant now argues that Brown’s testimony was erroneously excluded because it would have assisted the jury in their determination of whether appellant made the calls. Appellant argues that the instant case is analogous to Duckett v. State, 797 S.W.2d 906 (Tex.Crim.App.1990). In Duckett, this Court dealt with the admissibility of expert testimony pertaining to the psychological profile of a child victim of sexual abuse, whereas, as appellant argues, the instant case concerns the admissibility of expert testimony pertaining to the psychological profile of one who makes harassing telephone calls of a sexual nature. Appellant concludes that Brown’s testimony should have been admitted pursuant to Duckett.

The State argues that Brown’s testimony was unnecessary for the jury to determine the facts in issue, in that it was unhelpful, and that therefore the trial court did not abuse its discretion in excluding the testimony under Rule 702. The State argues that the substance of Brown’s proffered testimony was not outside the knowledge and experience of the average juror. See Duckett, 797 S.W.2d at 914.

In Duckett, we held that expert testimony concerning the psychological profile of a victim of child sexual abuse syndrome was admissible under Rule 702. Id. In Duckett, the victim, a six and one-half year old child, testified to acts of sexual abuse by her uncle. On cross-examination, the defendant brought out a number of inconsistencies between the victim’s trial testimony and her pretrial statements concerning the sexual abuse. In rebuttal, the State called a social worker who testified to the common characteristics exhibited by child victims of sexual abuse, such as changing their initial description of the acts of sexual abuse perpetrated against them and indirectly reporting the abuse by complaining of physical ailments in the area of their geni-taha. The social worker then applied his generic testimony concerning the common characteristics displayed by child sex abuse victims to the facts of the case by pointing out that the victim in that case had made inconsistent statements about the abuse and had initially reported the sexual abuse by complaining of itching and irritation of her vagina.

Similarly, in Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App.1993), we held that expert psychological testimony concerning the characteristics commonly displayed by child victims of sexual abuse was admissible. In Cohn, a psychologist testified that child victims of sexual abuse often experienced “crying” and “angry” episodes, had problems concentrating in school, and tended to cling to parents or others to get reassurance. A number of other witnesses testified that the victims in Cohn, both young children, were “withdrawn, fearful, and ‘clingy’ ” after the alleged acts of abuse had been committed against them.

In Duckett, the expert applied his generic testimony concerning the common characteristics displayed by victims of child sexual abuse syndrome to the facts of that case, by pointing out that the victim in that case had made inconsistent statements about the sexual abuse inflicted upon her and had initially reported the abuse by complaining of irritation of her genitalia. Likewise, in Cohn, witnesses other than the expert testified that the child victims in that case displayed some of the characteristics that the expert had testified were commonly displayed by child victims of sexual abuse, thereby linking the expert’s generic testimony to the facts of that case.

In the instant case, we note that the proffered testimony provided by Brown was potentially helpful under Rule 702, pursuant to Duckett. Such testimony, concerning the psychological profile of an offender who makes harassing telephone calls of a sexual nature, might assist the jury in determining a fact in issue, i.e., whether appellant made the telephone calls to the Whataburger employees. However, to be helpful, such testimony must be applied, or connected to the facts of the individual case. See Duckett, 797 S.W.2d at 915; Cohn v. State, 849 S.W.2d 817.

In the instant case, Brown’s testimony was not helpful to the jury, since he did not specifically apply his psychological profile testimony to actual characteristics possessed by appellant. Brown merely testified that appellant was an “overaehiever” and “extremely moralistic;” he did not specifically say whether appellant possessed any of the typical characteristics of an offender who makes harassing telephone calls of a sexual nature, e.g., a tendency to avoid direct conflict, confusion about his sexuality, excessive hostility, and/or a history of impaired relationships. In other words, Brown did not connect his generic testimony concerning the psychological profile of such an offender to the facts of the case.

We believe the instant case is similar to Pierce v. State, 777 S.W.2d 399 (Tex.Crim.App.1989). In Pierce, we held that the trial court did not abuse its discretion in excluding expert testimony regarding the unreliability of eyewitness identification. We reasoned that the jury was inherently able to determine the credibility of an eyewitness, and that expert testimony concerning eyewitness identification was therefore not helpful to the jury. We also noted in Pierce that the expert’s failure to connect his abstract testimony concerning eyewitness identification to the actual testimony provided by the eyewitnesses in that ease contributed to our determination that the expert’s testimony was unhelpful. Id. at 415-16.

Expert testimony should be admitted only when it is helpful to the jury. See Yount v. State, 872 S.W.2d 706 (Tex.Crim.App.1993). As we stated in Duckett, “[t]he use of expert testimony must be limited to situations in which the expert’s knowledge and experience on a relevant issue are beyond that of an average juror.” Duckett, 797 S.W.2d at 914. It is not sufficient that the expert merely testify in a conclusory manner, as in the instant case, that the defendant is not the type of person who would make obscene, threatening telephone calls.

The substance of Brown’s proffered testimony in the instant case, that appellant was basically a moral person, was not outside the knowledge and experience of the average juror. Additionally, Brown’s testimony concerning appellant’s personal characteristics, i.e. being an “overachiever,” etc., and his testimony concerning the profile of a person who makes harassing telephone calls of a sexual nature were not sufficiently related. To that extent, Brown’s statement, “Typically their kind of personality profile would be almost opposite of that kind of person,” was inadequate to connect his testimony concerning the profile to his testimony concerning appellant. Therefore, Brown’s testimony was properly excluded.

We hold that the trial court did not abuse its discretion in excluding Brown’s testimony, and that the court of appeals did not err in upholding the trial court’s decision. The judgment of the court of appeals is AFFIRMED.

MILLER, J., dissents.

1 . Tex.R.Crim.Evid. 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.