*1 multiplicity procedural may forego a say avoids of suits and is no answer to the claimant maneuvering. postpone governmental or unit un- suing the til recovery against the individual com- legislative history The section 101.106as plete. remedy the The Act states addi- specific a supports section likewise this con- may tion to have. others he On the face legislature struction. The did not intend statute, anticipate no reason to there is employee personal all insulate liabil- open problem that an The courts will arise. 12(b) ity. Section of the Tort Claims Act as point giving a is not whether trade-off of originally provided introduced that the reme- $250,000 recovery “limited” maximum dy against governmental unit was to “be against governmental unit is a reasonable exclusive of proceed- other civil action or “fair potentially trade” for unlimited but ing subject reason of the same matter liability of the uncollectible individual. We 456, against employee.” Tex.H.B. 61st construction, should not even consider 12(b) (1969). Leg., § legislature R.S. pursue but clear should construction that language deleted this from the enacted ver- complies legislative intent with and the rules request gover- sion the bill at the construction, raising question and avoids implicitly nor.4 Texas Tort Act Claims constitutionality the statute’s under the recognizes employees may be held hable Open provision. For Courts these reasons their negligence own providing that a respectfully dissent. governmental buy may unit insurance for its employees. & Tex.Civ.PrAC. Rem.Code § 101.027.
I think our principles of construction and
legislative history require construing the recovery against
statute not to bar the indi- simultaneously
vidual when the court tries
the causes of action and renders a concurrent against judgment majority’s both. The claim WILLIAMS, Appellant, Steven “may one opt pursue still the full remedy common law against responsible employee, foregoing postponing any Texas, or Appellee. at- The STATE of tempt against government,”5 to recover 592-93, Nos. 593-93. design judicial is a for inefficient use of re- unnecessarily sources and eliminates other Appeals Texas, Court of Criminal existing common law remedies. It does vio- En Banc. legislature lence to the intent of the and the 14, Dec. 1994. statute, express language of the and it should adopted. not be
Moreover, majority point misses the Open It Courts attack. is the common remedy against employee
law that is well
recognized. Adding remedy an additional unit, governmental
against providing but concurrent bars the recov- thereby
ery pronounced against the individu-
al, unreasonably burdens the claimant’s com- rights against employee.
mon law Sax v.
Votteler,
(Tex.1983).
It
Although
repeatedly
bills have
been
5.
submitted
OPINION FOR DISCRETIONARY REVIEW CAMPBELL, Judge. appellant,
A found Steven Williams, telephone guilty of harassment. 42.07(a)(2). § See Tex.Penal The trial Code appellant’s punishment at 90 court assessed fine, days pro- jail time and a both $500.00 for six months. Fourteenth Court bated The Appeals affirmed. Williams (TexApp. [14th Dist.] S.W.2d 784 —Houston 1993). granted appellant’s petition for We review, discretionary pursuant to Rule Texas 200(c)(2), Appellate to deter- Procedure in the court of erred mine whether its holding that the trial court did not abuse expert testimony excluding in con- discretion appellant’s profile. cerning We now affirm. January 30, Kim DiFrancesco
On working Whataburger at restaurant when, approximately northwest Houston at a.m., telephone call. 12:55 she received a The that “four caller informed DiFrancesco watching men” the restaurant armed give and that he wanted to her instructions. subsequently DiFran- The caller instructed perform to sexual acts with another cesco Whataburger employee. DiFrancesco and pretended comply with the her to coworker requests. two DiFrancesco informed caller’s sheriffs, deputy were in the restaurant time, deputies at call. The suc- call tracing while DiFrancesco ceeded with the caller. Di- remained on the line appel- later the voice of Francesco identified lant that of the caller. as 30,1991, January approximately 1:23 On a.m., Davis, employee at another Pam Whataburger Hous- restaurant northwest ton, telephone call. caller received a going rob told men were Davis that two cooperate if her shoot her she did and proceed- then with his demands. caller coworker, ed instruct Davis another Houston, appellant. Burge, William W. (Roderick), perform Roderick Williams Holmes, Jr., spoke caller with both Atty., Mary sexual acts. The B. Dist. John Kiatta, Both Davis Roder- At- and Roderick. Lou Asst. Dist. Davis Keel David Houston, Huttash, as Atty., ick identified the voice of later tys., Robert State’s Austin, that of the caller. the State. trial, appellant proffered
At ny pertaining psychological profile to the Brown, of Jerome psychologist. clinical abuse, whereas, child victim of sexual proof, offer of Brown testified as appellant argues, the instant case concerns psychological profile admissibility expert testimony pertain- harassing who would make ing psychological profile of one who *3 calls of a sexual nature. Brown testified that harassing telephone makes calls sexual such an typically individual is passive and Appellant nature. concludes that Brown’s conflict, open avoids is confused about his testimony pursu- should have been admitted sexuality, hostile, basically and has a histo- ant to Duckett. ry impaired relationships of peo- with other argues The State Brown’s ple. Brown also testified that one who unnecessary was for the to determine harassing telephone makes calls of a sexual issue, in unhelpful, facts that it was nature compulsively does so repetitively, and and that therefore the trial court did not single that a such unlikely. act would be excluding abuse its discretion in the testimo- Brown then testified as to his evaluation of ny argues under Rule 702. The State appellant. appellant Brown’s evaluation of proffered testimony the substance of Brown’s battery of consisted a tests was not knowledge experi- outside the and an interview. Brown’s conclusion was Duckett, average juror. ence of the appellant “overachiever,” was an was S.W.2d at 914. “very rule-bound,” and extremely was “an Duckett, moralistic individual.” following ex- In expert testimony we held that change then occurred between concerning psychological profile of a vic- trial counsel and Brown: tim syndrome of child sexual abuse was ad- Duckett, any missible under Rule 702. In
Counsel: Did Id. these characteris- victim, child, year tics—are a six and one-half these old characteristics con- type sistent with personality you by testified to acts of sexual abuse her uncle. talking commits, cross-examination, were about On typi- brought who the defendant cally ... commits this out a number [of] offense? of inconsistencies between the victim’s trial pretrial and her Typically
Brown:
personal-
their kind of
concerning
statements
ity profile
the sexual abuse.
In
opposite
would be almost the
rebuttal,
the State called a social worker
person.
testified to the common characteristics exhib-
Acting upon
objection,
the State’s
the trial
by
abuse,
ited
child victims of sexual
such as
court excluded
testimony.
Brown’s
changing
description
their initial
of the acts
court of
affirmed the trial court’s
perpetrated
of sexual
against
abuse
them and
ruling, citing Texas Rule of Criminal Evi-
indirectly reporting
by
complaining
abuse
dence 702.1 The court
opined
physical
geni-
ailments
the area of their
Brown’s
a
judg-
was
“character
taha. The social
applied
worker then
his
ment”
specialized
and did not constitute
generic testimony concerning the common
knowledge
contemplated by Rule
displayed by
characteristics
child sex abuse
victims to the facts of
pointing
the case
Appellant
argues
now
that Brown’s testi-
out that the victim in that case had made
mony
erroneously
excluded because it
inconsistent statements about the abuse and
would have assisted the
in their deter-
initially reported
had
the sexual abuse
mination of whether
made the calls.
complaining
itching
and irritation of her
Appellant argues that
the instant case is
vagina.
State,
analogous to Duckett v.
CLINTON, Judge, dissenting on stand, following colloquy witness ensued: appellant’s petition discretionary review. “Q. my request you At did have occasion cause, issue as framed do a parties in their briefs on appeal and resolved Williams? by the appeals, court of is whether it was *5 within the discretion of A. I I the trial court to did. saw Mr. on Williams June proffered exclude the year 24th purpose. of Dr. Je of this for that Brown, psychologist, rome guilt/inno at the Q. you him any And have seen other trial, stage cence ground of on the it purpose? would not “assist the trier of fact to under No, A. I haven’t. stand the evidence or to determine a fact in Q. types you perform? What of test did Tex.R.Cr.Evid., issue[.]” Rule 702.1 The A. Evaluation. court of ruled the trial court was Q. your within What did its discretion evaluation consist of? because Dr. Brown’s tes timony was no more than a “kind of charac Honor, going [PROSECUTOR]: Your I’m ter high [that] does not constitute object going at this time. This is to be ly specialized knowledge, but is the of improper character evidence. lay people assessment that every day.” make objection. THE COURT: Sustain the Williams v. at 788 [DEFENSE COUNSEL]: To the 1993). (Tex.App. [14th] - Houston evaluation, Judge? today The Court takes a different tack objection. THE I COURT: sustain his than did the court of appeals. Today the objection improper character evi- Court holds that Dr. Brown’s did agree. objection. I dence. sustain the not assist the because he did not ade COUNSEL]) Q. (By [DEFENSE After quately relate his evaluation of evaluation, performing you able personality to what he per identified as the psy- to arrive at conclusions as to the sonality profile typical perpetrator of the chological profile Williams? Maj. the kind of op. offense at issue here. Honor, Objection, [PROSECUTOR]: Your 366-367. The implicitly Court seems re improper character evidence. ject appeals’ the court of holding alleged whether an you offender meets THE COURT: Sustained. Do want psychological approach please? for such offenders the Bench seen, object objection, As will be the State did not at trial to have seems abandoned its trial that Dr. Brown’s would not "assist” reply argued responsively in its brief it that the jury, objectionable and was therefore under testimony of Dr. Brown was not admissible un- Instead, prosecutor objected Rule 702. der Rule 702 because it would not "assist” the testimony comprised objectionable jury. The court of addressed the issue as however, appeal, ig- evidence. On framed, therefore, notwithstanding thus and objection, argued nored the State’s trial objection, State’s trial the case comes to-this trial court erred to exclude the evidence because discretionary posture. Court on review in that expert testimony. it was admissible as The State
(Off-the-record Bench.) why open they at' is do discussion face conflict. This or out something behind scenes of the please. THE COURT: Take the out They people are face of the actual victim. out.) (Jury who have conflicts about their own sexuali- THE take a COURT: Let’s five-minute They people basically ty. are who are get into break before we that. history im- people hostile have (Brief recess.) paired relationships people, other es- with go get THE COURT: Let’s ahead and inability pecially in terms their handle presence started outside the direct conflict. develop testimony. Let’s Q. you through? Are I didn’t mean— (outside pres- EXAMINATION DIRECT thing pattern A. The other jury) ence of they compulsive repeti- show BY [DEFENSE COUNSEL]: words, a single tive. other this is Q. purpose your evaluation happens something This over act. Kyle Williams was what? again people over with because these Essentially A. to determine what kind it. pleasure derive a certain was, he in view of the kind basically This is an act that’s hostile also people typical who we are with re- found motivation. It’s not motivation. sexual gard to this kind of offense. Q. you And kind evaluation did what offense,’ Q. you ‘this And kind of how do your of? do? What did evaluation consist are general allegations know what parts, A. We did the evaluation two against Kyle Williams? clinical interview and administration of Well, me, A. he me he told told also testing. during phone the referral call. testing Q. And kind of what offense,’ Q. you say ‘this So when *6 you did use? you what do mean? Well, battery I psychological A. that sorry. A. I have I’m also information typically I with use is—the one use this report from the offense was sent evaluation, kind of it consists me, synopsis. M.M.P.I., Test, IQ the Rorschach estimate offense,’ Q. you say kind When ‘this Scale, personalities, Shipley’s called you what do mean? Checklist, Moony and an instru- Problem Talking telephone A. about the obscene F-i-r-o, Firo-B, dash, B. ment called threats, bodily implications' call with any Q. you able to reach conclusion Were carry if the out what harm does profile psychological about they say they should do. administering the after tests Williams Q. you’ve actually And been involved doing the clinical interview? kind treating people have done these who phone calls? Yes, very evidence of A. there was clear has, yes. personality the kind he A. Yes. Q. people psycholog- fit a certain Do such Q. And is that? what profile? ical Well, pro- important aspects A. They Typically they A. do. show certain Kyle to an individual who file revealed be quite characteristics that are consistent an individual that is an overachievér. He’s words, other with this kind act. actually he’s expects of himself than more psychologically act consistent with is very capable who of. He’s individual people people kind these are. doing the rule or concerned about bound Q. is what? Which way right things does the or that he extremely Well, way say to do He’s all the rules it. thing A. we’ve with seen how he looks other essentially concerned about individuals is that these impression he They’re aggression. people and the about have conflicts extremely he important that typically passive in the makes. It’s who are individuals good appears good peo- knowledge experience average look to other Nevertheless, ple. extremely juror.” Maj. op. He also an moralistic at 366. who, again appears individual to affirm the court of probably more con- Court basis, any doing things right way cerned about on a different viz: that in event or way “sufficiently” average moral than the individual. Dr. Brown never testified If anything, uptight. appellant profile he’s too whether fit the for obscene disagree harassers. with both Q. Did of these characteristics-—-Are conclusions. any of these characteristics consistent with type personality you talking commits, about A typically type per- sonality who commits this of offense? rules, may Under the an accused broach Typically subject guilt alleged A. personality pro- their kind of whether his for the opposite file would be almost of that kind offense would be inconsistent with his char- 404(a)(1).3 Tex.R.Cr.Evid., person.” acter. Rule Pre- then, sumably, he would have been allowed to objection The State reiterated its present lay testimony in this cause that his “improper constituted general character was inconsistent with the it, judge evidence.” The trial opin- excluded conclusion that he of- committed the instant ing simply that “I don’t think it’s admissible.” mean, however, fense. That does not opinion testimony psychologist, from a based II. upon “specialized knowledge” his avowed now, Even the State does not attack the about the of character that would com- empirical foundation for Dr. Brown’s testimo- offense, and, particular mit specialized ny. say, That is to challenge there is no character, testing, an accused’s own could not Dr, principles by which “assist the trier of fact ... to determine a purports to be able to conclude that way lay testimony fact in issue” particular there is that obscene could not. telephonic generally harassment offenders meet, here, and that Assuming, does not fit that because it is not assailed general profile. Kelly 824 that Dr. Brown’s was based (Tex.Cr.App.1992). S.W.2d 568 Nor does the principles supported sound argue underlying data,' State underlying facts and sufficient facts and it *7 data from which Dr. opin- Brown derived jury’s his contributed to the consideration Tex.R.Cr.Evid., ion were not sufficient. ways lay testimony Rule facts in issue in two 705(c). Thus, First, the appeals court of lay did not could not have. will have witness testimony objec- hold that Dr. empirically Brown’s was “profile” no fashioned of offend- tionable lacking empirical sup- because against personal ers which to measure his Instead, port.2 appeals the court of held that assessment of the In accused’s character. opinion simply his judg- a “character respect, psychologist’s opinion a clinical require expertise informed, ment” that does not concomitantly is more more make; lay Second, “the ... people probative. “lay make people” make State, every day.” supra, judgments “every day” Williams at 788. does not today least, agrees, The Court at principled that Dr. mean them make on the same testimony Brown’s psychologist “that was basi- basis that a trained clinical does. cally Thus, person, a moral perception was not outside the the of the accused’s eharac- suggest challenges underlying 2. I do not mean to that such miliar with ... the facts or informa- empirical foundation based, of Dr. Brown’s testi- opinion prior tion which is [his] mony have would been well taken on the record Tex.R.Cr.Evid., day of the Rule offense.” My point simply before us. is that no such event, 405. In the court of did not here, challenges were made and therefore that testimony hold that Dr. Brown’s was excludable issue is not before us in the instant cause. trial, objection on the basis of the State’s at improper it constituted character evidence. See trial, specifically argue 3. The State did not at 1, n. ante. appeal, incompetent on character that Dr. Brown was an witness, in that he had not been "fa- 370 compares profile appellant’s particular psychologist
ter that How the anecdotal, sufficiently relat- is less more derivative character traits “were not through testimony passed common observation this not self-evident. ed” is extent, explain Maj. op. sieve of scientific To that at 366. Nor method. does Court character, both his of the accused’s it. comparison may profile, and his it to the opine does is not “[i]t The Court
be more reliable. expert merely testify in a that the sufficient psychologist’s testimony, manner, case, Absent conclusory as in the instant lay lay jury equipped is no better than is the that the defendant not the propensity witness to assess the accused’s obscene, threatening tele- who would make Pierce v. the crime he is of. accused Maj. op. phone calls.” at 366. Court (Tex.Cr.App.1989), we authority proposition. That cites no this expert made it clear that should be understandable, however, it is at since helps admitted whenever “to de- it expert scheme for odds with the admission intelligently possible termine and to the best testimony contemplated by Article VII Id., 414, degree particular at issue[J” may it Evidence. While Rules Criminal advisory quoting the note follow- committee good stand- not be a idea an adversarial Goode, ing Fed.R.Evid. also 702. See testimony in present expert opinion point to Sharlot, Wellborn & Texas fashion, Texas Practice: clearly permissi- clipped it such a Tex.R.Cr.Evid., Rules of and Criminal Evidence: Civil Rule so under ble to do (1993), assuming § Again, 705(a). Goode, Sharlot, 702.2 at & Wellborn for Dr. bases Brown’s Texas of Evidence: Texas Practice: Rules not cause— sound —an issue before us (1993), § 705.2 at 69. Civil and Criminal surely would have “assisted” may adduce “bare-bone” ex- proponent such helped id., the extent it would have 68, testimony, and thus pert opinion at degree” possible them evaluate “to the best probing the bases “shift[] the burden charged appellant’s guilt for the of- whether expert’s opinion to cross-examiner.” Id., is consistent character. The fense with his 69. That is the Rule 705 offers reason conclude otherwise. court erred to opportuni- opponent of such evidence the witness; to avoid ty to voir dire ap- Today the Court the court of eschews testing on cross-examination ambush faulty peals’ reasoning. the extent this To opinion presence bases for his outside rejection analy- that court’s constitutes Id., may opponent at 70-71. The sis, I concur. opportunity not to avail himself of the choose expert’s the bases of the to test B. provisions. But that would under these Instead, the court of the Court affirms expert’s opinion deprive the of its usefulness. ground appeals’ judgment on the alternative contemplation Clearly, in of Rule enough in explicit that Dr. Brown was not *8 “conclusory” may still “assist” opinion that is exception testimony that the bill of in his purposes of Rule 702. for appellant does not fit the character Moreover, agree I I do not that Dr. Brown’s offense. do perpetrators the instant for “conclusory.” opinion was He testified respect not understand what typical characteristics opinion Dr. enumerated a deficient. threatening testing makes obscene and that his handful of character traits experience awk- calls was based on his appellant, opined, albeit revealed of such of- opposite” treating an undisclosed number wardly, “almost the opinion appellant’s character among His expect would to find fenders. of what one clinical and a bat- of of- on a interview typically the kind was based those who commit The bases committing. tery tests.4 fense was accused danger likely "conclusory" expert will constitute a future defendants have never labeled 4. We virtually based society. capital murder identical criteria the effect opinion reasonably were thus well devel- oped. keep We must in mind that Dr. testifying purposes
Brown was of a bill of
exception. required pro- Even if the law
ponent expert opinion testimony fully
develop opinion predi- the basis for his as a admissibility, necessarily
cate to it would not exception
follow that a bill of should have to
be so exhaustive to demonstrate that an ex- opinion
cluded would have “assisted” the short, good I cannot find a reason
to hold that Dr. Brown’s in this “sufficiently
cause did not relate” typical traits to those of obscene threatening telephone Perhaps callers. justify stingi-
the Court does not better its
ness because in reason it cannot.
III.
I would reverse the of the court in this cause and remand it to that proceedings
court for further not inconsistent opinion.
with this Because the Court does
not, respectfully dissent. OVERSTREET, JJ., join
BAIRD and
opinion. LIFE
COMMERCIAL INSURANCE
COMPANY, Appellant,
TEXAS STATE BOARD OF INSURANCE
and Bankers Commercial Life Insur- Company, Appellees.
ance
No. 3-93-040-CV. Texas, Appeals
Court
Austin.
July