*1 (2) intentionally knowingly or threatens Conclusion bodily injury, imminent in- another with summarize, correctly To cluding person’s spouse; or summary judgment granted appellant’s on (3) intentionally knowingly phys- or causes negligence against causes of action A.S. person ical contact with another when the appellant’s impris- the Miksells and on false reasonably knows or should believe that against onment claim affirm that A.S. We regard the other will contact as offen- part summary judgment. of the trial court’s provocative.58 sive or erroneously granted Because the trial court summary judgment appellant’s battery on summary judgment evidence shows A.S., against cause of action we reverse the pubic touched A.S. J.C.’s breasts and summary judgment part and remand area, touching that J.C. disliked the and told proceedings case to the trial court for further stop, A.S. to A.S. threatened J.C. opinion. consistent with this bodily injury get play at times to her to games. Appellant the sexual raised a fact battery
issue on her cause of action. Accord-
ingly, trial court in granting erred A.S.
summary judgment appellant’s battery on appellant’s
cause of action. We sustain sec- point
ond of error. point appel
In her third alleges lant the trial court erred Wayne ENOS, Appellant, Dennis granting summary judgment for A.S. because there was imprisonment. evidence of false The elements of a cause of action for false Texas, STATE State. (1) imprisonment are: a wilful detention of No. 2-92-100-CR. (2) another; (3) consent; without and without authority argues of law.59 A.S. that sum Texas, Court of mary judgment appropriate because the Fort Worth. summary judgment evidence established that Oct. 1995. falsely imprisoned A.S. never J.C. because J.C., A.S. never detained who testified as
follows:
Q you against your Did ever hold [A.S.]
will?
A you doWhat mean? Well,
Q guess by I that I mean did she you
ever have in a room somewhere like in you stop leaving
her house and where
you get wanted to out of it? mean,
A that I can Not remember. I mean, pretty
think it was I don’t ever —I she, like, me, like, stopped think that held
me back. testimony negated
This detention a as matter law, correctly granted so the trial court summary judgment appellant’s
A.S. false
imprisonment cause of action. We overrule point third of error. 22.01(a) (Vernon 1994). Sears, Castillo, §
58. TexPenal Code Ann. Roebuck & Co. v. 693 S.W.2d (Tex.1985). *2 Butcher, Beatty, and
Alan K. John C. Tom Hill, Hill, Beatty, Gallagher, & Fort Butcher Worth, Appellant. for Curry, Attorney; Tim Criminal District Mallín, Assis- Betty Marshall M. Charles Section; Appellate Helena tant Chiefs of F. Faulkner, Attorney, Assistant District Fort Worth, for the State. RICHARDS, LIVINGSTON,
Before SPURLOCK, II, DAUPHINOT, and JOE (Retired), (Sitting Assignment), JJ. OPINION ON REHEARING LIVINGSTON, Justice. opinions
This court withdraws
judgment of June
1995 and substitutes
Simultaneously,
place.
in its
appellant’s mo-
court has considered the
rehearing en
and such motion
tion for
banc
hereby
rehearing en
denied and
banc is
original
only
overruled.
revision
Footnote One to
opinions is the addition of
majority opinion
addresses the
which
majori-
dissenting opinion’s
discussion
analysis.
ty’s harm
hypertechnical
not find this
Wayne
(“appellant”) pled
fects.
do
Dennis
Enos
We
aggravated robbery
purpose
guilty
argument persuasive,
to one count of
however.
deadly weapon
with a
and true to an en
rule is to better enable the
of the Gaskin
pun
possibly
A
im-
paragraph.
hancement
assessed
to cross-examine and
defendant
seventy-five years’ imprisonment.
peach
ishment of
ic that this Defendant testimony from other pages of two-hundred any on her? That doesn’t make difference. jury testimony informed the witnesses. The plea any Doesn’t make difference. robbery and surrounding the of the events mitigation. guilty not worth one ounce of Further, Lori Sosebee appellant’s arrest. (“Sosebee”), manager at the bank where a occurred, to the events testified punishment. talk about Now let’s robbery, including that she surrounding the contrast, punish you In can and should pointed a “frightened” appellant and that was very severely this Defendant for what he’s that also indicated gun at Mimms. Sosebee felon; convicted done. He’s a four-time robbery. Mimms “hysterical” after robber; he’s a man who he’s an armed imme- testimony covered the events Mimms’ gunpoint a life at and made held woman’s before, robbery. during, diately and after might be her think that her next breath hysterical testified that she Mimms also bank, she When he left her last. robbery. immediately after the floor, sobbing heap in collapsed surrounding In addition hysterics. from robbery, admitted evidence pun- to be This is a man who deserves re- history. Appellant appellant’s criminal simple. for life. Plain and ished at- ten-year for one three sentences ceived burglaries in 1979. tempted burglary and two argument, must con- Looking we at the probation,” and he given “shock He was reiterated Mimms’ testi- clude that the State re- jail in before he was offense, six months and such a focus served mony regarding the re- probation was probation. on His allowing appel- leased emphasized the error of not fraud, obtaining drugs by in 1981 Mimms’ state- voked opportunity lant an to review imprison- years’ to ten and he was sentenced cross-examining her. ment before case, reviewing record in this prison After Appellant was released doubt aggravated a reasonable January 1989. He committed the have determined appel- robbeiy April case on error made no contribution judg- punishment.1 The lant’s conviction or “mitigating” evidence Appellant introduced affirmed. ment of the trial court is trial, focusing his twen- at the ty-year struggle drug Appel- addiction. RICHARDS, J., dissents, joined by family appel- friends and testified to lant’s DAUPHINOT, J. addiction and unsuccessful treatment lant’s programs, psychologist and a testified to the RICHARDS, Justice, dissenting. addic- physical and mental effects of heroin tion. was re- respectfully dissent. This case permit whether manded to us to consider to re- While the failure allow defense counsel is entitled to review wit- before view Mimms’ victim pur- ness’s written “victim statement” cross-examining our her was review Gaskin, after the witness testifies. suant to any par- does not reveal Mimms’ statement majority correctly held that defense ground ticularly fertile for cross-examination to that information counsel was entitled jury in to have influenced the this ease. sentencing appellant light of .the other *5 if Mimms’ evidence admitted at trial. Even majority’s My disagreement is with the credibility brought question through into that the non-disclosure of the statement view statement, impeachment unchal- via the the in this case was harmless error. testimony lenged of Sosebee covered sub- plea guilty. The Appellant entered a of stantially the same areas as Mimms’ testimo- jury upon to decide sole issue the was called Further, ny. attorney trial con- appropriate punishment. was the State’s ducted a cross-examination of Mimms that witness the bank teller who focused on the fact that never actu- aggravated robbery, was the victim of the ally anyone appeared tried to shoot to be length post-event testified at some drugs robbery. at the time of the Look- experienced. Specifically, trauma she she whole, ing at the record as a we do not following testified that she was likely place significant believe the to knees, hysterical, “just fell to her col- weight testimony regarding on Mimms’ lapsed.” She also stated she believed she effects, short-term, long-term or right go place to a work and not be had a to robbery had on her. subjected easy to to such conduct. It imagine follow- the terror the victim suffered Repetition Impunity of the Error with for ing the and it is not unreasonable Finally, must consider whether declar- jurors from the testi- to have concluded ing likely the error harmless to would be mony may Mimms have suffered that Ms. impuni- to the State long-term incident. trauma as result earlier, ty. As we mentioned did Certainly, very con- her Further, not cause this error. because the by jurors, ultimately sidered who set cases, judge, future will know to seventy-five years’ confine- punishment at analysis requests apply the Gaskin to for production impact fol- of victim statements testimony, at trial or on lowing a victim’s this error Not known to defense counsel paragraph unlikely repeated appeal to in the future. was that in the first be improper analysis by this court 1. The Harris used this court is a Rule evidence and it would be 81(b)(2) analysis, opinion the same dis- to now do so. The result would be and this court’s 81(b)(2) 81(b)(2) analysis specific or a Rule cusses the more "Harris factors” that do under a Rule apply impact analysis coupled factors. Id. would have little with the Harris not or Tex.R.App.P.81(b)(2). was limited to whether the state- discussion. The court The remand rule, held, appeals proposed under the Gaskin criminal has never as ment was admissible dissent, analysis application of the to a more narrow that the Harris is or should discern improper be limited cases of admission of Harris factors. 298 completed impact two used the victim statement to his ad-
victim statement incident, vantage, Ms. Mimms indi- cannot conclude the error was months sought professional counseling cated she had harmless. but, retrospect,
as a result of the crime regretted having sought counseling DAUPHINOT, J., out- joins. she approximate spent one hour she side at Her exact statement counselor work.
was, “Spoke for about with counselor work regret seeking help an further hour —
private my choice.” counselor of 81(b)(2) Appel- of the Texas Rules of
Rule requires that we reverse the
late Procedure determine, case unless we under the HELTON, Appellant, Elizabeth Gail standard, had a reasonable doubt the error no effect on the assessed. Be- Texas, Appellee. it is to believe a skilled The STATE of cause reasonable attorney quoted defense could have used the through Nos. 09-94-089 CR 09-94-094 CR. portion of the victim logical Texas, trauma counter the inference Court severe, I con- the victim suffered was cannot Beaumont. harmless. clude the error was 21, June 1995. Submitted majority applies In its harm 1, Decided Nov. 1995.
the formulaic test set forth Harris v. (Tex.Crim.App. Rehearing Nov. Overruled S.W.2d 1989), i.e., the source of the the nature *6 error, it whether or to what extent was probable collat-
emphasized implications, probable weight
eral error,
jurors placed on the and whether de-
claring the error harmless would impunity.
the State to be- Appeals never
lieve the Court of Criminal Harris, analysis employed
intended improper
which concerned the introduction offenses, apply to all
extraneous errors. brief, “because
Even the State admits nondisclosure of evi-
this case deals with
dence, opposed improper admission of as
evidence, it difficult to see how the State emphasized have how the
could implications, had collateral
error could have placed any weight could have
or how Clearly, alleged it is time to error.” many of factors in what has be-
admit no known as the Harris “test” have
come errors, to harm for some
relevance
including violations. The critical Gaskin reviewing
holding of Harris is that the the error at issue
should focus on whether jurors’
might possibly prejudiced have Here, making. because it is reason-
decision could have to believe defense counsel
able