Opinion
No. 05-04-01708-CR
Opinion issued May 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-71845-LJ. Affirmed.
Before Justices MOSELEY, O'NEILL, and BRIDGES.
OPINION
Roderick Jerome Leroy was convicted of aggravated assault with a deadly weapon. The jury assessed punishment at incarceration for ten years. In his sole issue, appellant asserts that the trial court erred in admitting testimony of the complainant that implicitly recommended incarceration and not community supervision. We affirm. At trial in October 2004, Melissa Garver, the complainant, testified that she was attacked in her parking garage and that she saw the assailant's face from a foot away as he began the attack. She identified Appellant as the assailant. She testified to the severity of the attack, that he choked her and forced her to the ground and she felt she was suffocating. She described her physical injuries. At the punishment phase, she also testified to the impact the attack has had on her life, including that she has been diagnosed with post-traumatic stress disorder and has moved out of state. When asked what she thought would be an appropriate punishment, she testified-over Appellant's objection-that she didn't think he should "just be roaming." She didn't even know her assailant and thus, she posited, others wouldn't be safe if he had opportunity to "do this again to anyone that he may feel like doing this to." Appellant brings this appeal, asserting in his sole issue that the trial court erred in overruling his objection to Garver's testimony concerning her recommendation on punishment. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996). Rule 701 permits a non-expert witness to testify in the form of an opinion or inference so long as the testimony is rationally based on the perception of the witness and is helpful to a clear understanding of the witness's testimony or the determination of a fact issue. Tex. R. Evid. 701. Testimony by an expert witness recommending a particular punishment to the trier of fact is properly excluded. Sattiewhite v. State, 786 SW.2d 271, 290-91 (Tex.Cr.App. 1989) (such testimony could escalate into a "battle of experts"). A number of appellate courts have extended that rule to include non-expert witnesses, concluding that, as a general rule, a witness may not recommend a particular punishment to the factfinder. Thompson v. State, 95 S.W.3d 537, 541 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (hypothetical during voir dire suggesting witness could recommend punishment misstated the law; harmless error); Johnson v. State, 987 S.W.2d 79, 87 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd); Wright v. State, 962 S.W.2d 661, 663 (Tex.App.-Fort Worth 1998, no pet.) (testimony of victim properly excluded, where victim proffered she "did not care" if perpetrator received probation); Hughes v. State, 787 S.W.2d 193, 196 (Tex.App.-Corpus Christi 1990, pet. ref'd) (robbery victim's testimony recommending punishment not relevant; victim has no more expertise on proper punishment than any juror); Gross v. State, 730 S.W.2d 104, 105-06 (Tex.App.-Texarkana 1987, no pet.) (victim's testimony recommending leniency properly excluded). Here, even if Garver's testimony was improperly admitted, we conclude any error was harmless. We review for harm under the standard for nonconstitutional error. See Roberson v. State, 100 S.W.3d 36, 39 (Tex.App.-Waco 2002, pet. ref'd) (reviewing testimony admitted under rule 701 under nonconstitutional standard). Texas Rule of Appellate Procedure 44.2(b) states nonconstitutional error that does not affect substantial rights must be disregarded. Tex.R.App.P. 44.2(b). Substantial rights are not affected by the erroneous admission of evidence "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Reese v. State, 33 S.W.3d 238, 243 (Tex.Crim.App. 2000). The record shows that the victim's comment on punishment was brief. She described both the severity of the attack and its impact on her, including the diagnosis of post-traumatic stress syndrome and the measures she has taken to try to feel safe again, e.g., she moved out of Texas; she installed extra alarms and sleeps with her dog and a large knife. At the punishment phase, there was testimony that appellant was eligible for community supervision and appellant's girlfriend testified to the loss to her children if appellant were incarcerated. The State did not emphasize the challenged testimony in its closing argument. The jury had before it the appellant's stipulation to a previous misdemeanor possession of marijuana. The State asked for the maximum penalty of twenty years' incarceration, but the jury chose a mid-range sentence of ten years. After examining the record, we are convinced the challenged testimony did not have a substantial effect, if any, on the jury's sentencing determination. See id. at 243. We overrule appellant's sole issue. We affirm the trial court's judgment.