*1 253 church any property transferred religious suit an or unincorporated as this to how non-profit assets or because that it has al- any conducted association unincorporated activity or operated. An associ- ministry non-profit as ways corpo- organized purposes ration. The ation nonbusiness only record reflects that the legal capacity has the to sue or generally church and corporation have similar in its name. Tex.R. alone, however, be sued assumed Civ. names. This fact fails to P.28. even suspicion raise that the church capacity prosecute lacked this case. See however, argues, GuideOne that Kroger Suberu, P’ship Tex. Ltd. v. 216 as an the church ceased to exist association (Tex.2006) S.W.3d (observing that non-profit corporation, in 1980 when the evidence). suspicion surmise and are not bearing the same name and a similar affili God, ation with the Pentecostal Church of Because there is no evidence that created. GuideOne submits that capacity, church lacked the courts below becoming a church corporation the lost the erred in claims dismissing its for want of capacity litigate unincorporated as an prosecution. Accordingly, we grant Only party actually association. or review, and, petition for without hearing legally may bring exists a lawsuit. See argument, oral reverse the ap- court of Nootsie, Cnty. Ap Ltd. v. Williamson judgment peals’ and remand the cause to Dist., (Tex. praisal S.W.2d Tex.R.App. the trial court. P. 59.1. 1996) (noting who party that a lacks the legal authority capacity); to act lacks see Ctr., Lovato, Nursing
also Austin Inc. v. (Tex.2005) (describing procedural dealing as a issue with
capacity of a personal qualifications party
litigate). As the party challenging capaci Wayne COBLE, Appellant, Billie ty, proof. GuideOne bore the burden of v. Corp.,
Flowers S.W.2d Steelcraft (Tex.1966). proof GuideOne’s STATE Texas. entirely here rests on the articles of incor AP-76,019. No. poration non-profit corpo created the in 1980 name ration with a similar to and Appeals Court of Criminal of Texas. religious
same affiliation the church. Oct. that, Beyond that the presumes GuideOne who articles Jan. Rehearing individuals filed these had Denied some connection to the church and intend for the church to this corporate
ed assume this, proof There is no specific
form.
however, any nor is there other evidence present this to the corporation
to connect any activity. other
suit church
The church it always maintains that has religious as an
operated unincorporated
association, sug- and the record does not
gest otherwise. no evidence There is *8 Jr., Waco,
Walter Appel- M. Reaves lant. Messinger, D.A.,
John R. Asst. Crim. Waco, Horn, Jeffrey L. Van State’s Attor- ney, Austin, for State.
OPINION COCHRAN, J., delivered opinion PRICE, WOMACK, the Court in which JOHNSON, JJ., HOLCOMB, joined. Appellant originally convicted in 1990 of capital shooting murder for the mother, father, deaths his wife’s jury’s brother. Based answers issues, special punishment the trial judge him to sentenced death. This Court upheld his conviction and sentence on di- appeal.1 rect the Fifth Circuit Appeals granted Court habeas relief and remanded for a pun- the case new trial on ishment.2 On retrial a second Appellant sentenced death. twenty-five points Finding raises of error. error, judg- no reversible we affirm the ment and sentence. Background
Factual
Karen Vicha was
wife.
third
They
July
were married
1988 and lived
ain house down the road from her brother
parents.
and across the
from her
street
Appellant
forty years
was almost
old.
*9
and,
marriage quickly disintegrated,3
after
(Tex.Crim.
appellant's
Coble v.
a en, “Oh, Appellant attempt- you you’ve got dog I see a divorce. She wanted — of this decision and big dog you’ve talk her out mean ed to now.... [TJhat’s up at randomly call her and show thereafter, would Shortly Karen found got.” place. her work dog lying dead in front of her house. Karen as a kidnapped then Appellant days kidnapped Nine after he had Kar- her divorc- to dissuade from further effort en, to her in the appellant went house car in the trunk of her ing him. He hid early daugh- afternoon. As Karen’s three evening with a at a bar one
while she was along ters each came home from school Karen started to drive girlfriend. When son,4 Bobby’s handcuffed appellant with home, the back seat appellant folded down them, feet, their up taped tied their and with a knife.” out of the trunk “popped and daughter mouths closed. Karen’s oldest console, halfway into jumped He over appellant testified that she heard cut seat, against knife the front and stuck the Then he left to telephone lines. ambush keep driving He her to Karen’s ribs. told father, mother, and Karen’s and shoot they stopped came to a field. Karen until Bobby as each of them came brother car, if appellant said that he and home.5 her, could. couldn’t have then no one else af- Appellant returned to Karen’s house tape, He out a roll of black electrical pulled triple killings waited for his ter and and, talking, after about kept but Karen wife to come home from work. He told hours, him that two she convinced she children, you away “I wish I had blown reconsider the divorce issue. He let would arrived, brother, like I intended to.” When Karen Bobby, go, her and she called her came of one Bobby appellant told Kar- out bedrooms police who was officer. said, “Karen, kidnapping. report gun. Appellant en to with a I’ve your your daddy momma and and killed appellant kidnap- After arrested for he brother, dead, your they are all and Karen, Officer James Head looked ping you to come nobody going help now.” appellant mirror and patrol-car his saw him, appellant believe She didn’t so at him with a look that “made the staring Bobby’s gun lying showed her on the up.” hair the back of head stand on [his] pulled the curtains kitchen table so got heebie-jeebies.” Appellant He “the parked she could see her father’s truck “They’re something going muttered like $1,000 behind the house. He showed her Karen’s sorry.” be Officer Head called he taken her in cash that had from mother. brother, Bobby, him about and warned Appellant lucky told Karen that she was appellant. When was released daughters, that he hadn’t molested her kidnapping charge, Bobby on bail for the got shepherd protee- good-bye. Karen a German he told her to kiss them She children, 14, 11, ages fight.... 4. All four of a I chased him down the road they appellant prior had liked way, testified and I chased him back. And then I one him, the murders. going gun for the shot and was die_ So, finally I car. And he wouldn’t father, victim, 5. Karen's the first was found big had to blow a hole that in his neck.” home, covered with blankets and inside his "really Appellant also told Karen that he hat- towels. Karen's mother was found in her your ed to do that to mom. But when she garage. Bobby was found in his car in his dad, your just she went cra- found out about garage. zy.” day, appellant Later that told Karen tough. put up hell her brother was "He one *10 He her put did. made on handcuffs. Kar- driving. Appellant said that he did not en talked into appellant leaving the house want to die in prison, so he “floored it” and taking and her with him.6 He he rammed parked said was into a car. After the crash, going to take her away appellant for a few weeks said, turned to Karen and “I guess you’ll and torture her.7 get now a new car.” Both appellant and injured Karen were in the drove, appellant As Karen tried to es- crash. Officers had to cut the car door cape by freeing one from hand the hand- open to get Karen Appellant out. was grabbing wheel, cuffs and at steering found with Karen’s father’s watch and wal- making the car swerve into a ditch. She let, as well as .37 and .38 caliber revolvers. grabbed one of appellant’s guns, pointed it stomach, Although appellant at his pulled trigger, forty years and but was old when murder, he nothing happened. triple committed this Then Karen and ap- State’s evidence pellant fought over showed that he gun, with was no appellant stranger to violence. He repeatedly long had a pulling trigger, but still histo- ry of brutalizing molesting and gun did not fire. women. Appellant pistol-whipped Appellant beat both of his Karen until former wives she couldn’t see for all of the and molested several young girls, including blood on her face. A passerby woman relatives. shouting appellant, started at are “[W]hat
you trying woman,” to do to that appel- so wife, His Woolley, first Pam testified lant drove the car out of the ditch as they were married 1970 when ap- lay Karen passenger seat. He pellant twenty-two. They had two at shouted her that if she got blood on his children, but marriage their started down- clothes, he would kill her. But he was also hill after years. By two appellant rubbing her legs between her as he drove. violent, had become and he used to beat He told her reputation that his was ruined her on the head so that her hair would because she had had him arrested and his hide the marks.8 Pam said that appellant name papers. was in the go could from extremely normal to angry second, in a split and always he blamed
He drove to a deserted in Bosque field her for Appellant his violent acts. told her County where he rape threatened to her. divorce, that if she ever filed for he would dark, field, After he drove out of the but “fix her” so no other man would look at they passed patrol a sheriffs car which her again. turned around to follow Appellant them.
grabbed a knife and started stabbing Kar- During ten-year this marriage, appellant chin, forehead, nose, en’s and as he was molested Pam’s younger sister 6.While Karen and were still at her 7. Karen testified that when she came to a house, girlfriend Bobby’s dropped by hearing court appellant kept turning and saw smiling around and at her with "a wicked evil Karen in handcuffs. She then went to Bob- grin.” Even in she was still scared of by's house and called Karen’s uncle to tell continuing him and felt that he was a threat seeing him about Karen in handcuffs. After to her. call, Bobby’s she looked around house everywhere, plants saw blood and furni- plate 8. He also threw a at Pam when she up-ended, general disarray. ture She like; something cooked he did not he knocked called the sheriff's office. Officers then came open-hand slap; her to the floor with an house, children, to Karen's talked to the four hit her on the back with a baseball bat so victims, found the bodies of the three go hard that hospital; she had to and he appellant. started the hunt for face, punched sat on her chest and her in the breaking her nose. *11 mouth, State Home for Chil- “busting” her sent to the Corsicana her on the
punched acting- promiscuous Because of her dren. children’s thirteen- molested his lip. He out, older was sent to a appellant’s sister her how teaching while year-old babysitter school, problematic older convent and his the breast of groped He to water ski. supervision under the placed brother was when girl. neighborhood another Department. Ap- Probation of the Waco thirty, raped he his cousin was appellant at the Home for twelve pellant remained the time. When at who was about fifteen years. fifteen, grabbed he niece was appellant’s wearing a sat in a chair
her ankles as she fifteen, psychia- was a appellant When ges- legs, her and nightgown, spread open trist, him con- Hodges, evaluated and Dr. per- as if he were tongue with his distant, tured and paranoid, that he was cluded that on her. Later same forming oral sex self-control, poor he showed impulsive; then threw forcibly kissed her and day, he women, and blamed displayed hostility to her a bill. $5 bad conduct. Dr. others for his own appellant was that Hodges’s impression Candy Ryan, his sec- married Appellant sociopathic personality a “represented] wife, she thirty-five when he was ond type.” People disturbance of the dissocial year marriage, one eighteen. was After diagnosis their own de- gratify with this abusing her. physically started appellant regard sires without for the cost others. he hit her on the head. Once regularly He Appellant’s “long prognosis term [did] hit repeatedly her the hair and grabbed good.” look and floor. After against her the cabinet him, seventeen, appellant joined At age at he something to throw she dared Corps Marine and was sent to Vietnam. Candy hammer. said sledge hit her with a an honorable dis- Although he received “switch-type” person- appellant had a duty, charge four-year after his tour of nasty in a ality changing from sweet to — was not recommended for re-enlistment her, during He stalked both split-second. convic- of a series of violations and because marriage. their He would sit and after shortly tions. He first wife married his gas his car outside the station where Can- after he left the Marines. worked, and, stayed in- dy if a customer gave in and long, appellant side too came Coons, psychiatrist, Dr. Richard had look. After intimidating the customer an trial that he testified at her late Candy appellant, left he would call danger. would be a future Coons tes- been, at and tell her where she had night appellant tified at the 2008 retrial with, and what she whom she had been danger though even would still be future doing. Appellant threatened had been single disciplinary not have a appellant did Candy’s help father when he tried to Can- eighteen years that he had report for the dy leave. explained been on death row. Dr. Coons by stating all those discrepancy this Appellant’s augur childhood did not well to behave on death row have an incentive years for his future. His earliest were appeal, convictions are on because their spent custody stepfa- in the of an alcoholic they they thus are less violent than only periodically ther who worked population. in the general prison would be withdrawn, sickly, depressed mother. four, mother was to at- Appellant When his called several witnesses Hospi- prison institutionalized in the Austin State test to his reformation and lack of that he had psychoneurotic Appel- tal with a disorder. violence for the entire time lant, brother, According to one fel- were been on death row. and his older sister *12 inmate, prison well appellant low was liked lant’s record which contained no always even-tempered disciplinary he was Dr. everyone; write-ups. Cunningham conducted a risk ability had the to “talk sense” into violence and assessment of appellant. opinion, appellant of his a some the more violent inmates. He said had very probability low appellant committing had a organized sports that acts violence while in prison. at league helped the Ellis Unit and he write inmates letters and would read them Sufficiency of the Evidence to Prove family their letters from members. After Dangerousness Future Row was to the Polunsky Death moved Unit, same; appellant’s behavior was the In his first and second points of error, always upbeat. helpful appellant he was and asserts that the evidence legally factually and insufficient to sup appellant Another inmate testified that port jury’s finding that a there is people wing” would take “under his and probability that he would commit criminal that, He help “agitated” ones. stated acts violence in future. appellant As Unit, appellant at the while Ellis was an acknowledges, consistently we have held trustee, SSI, which was like a and would we lack to authority conduct a factual walk A often around with female officers. sufficiency jury’s review of the future-dan third inmate testified that gerousness Appellant’s argu verdict.9 generous gave commissary and items to persuade ments do not us otherwise. inmates. A inmate other fourth said that him appellant helped English to learn and In assessing legal sufficiency a to file federal habeas petition. Appellant support evidence to danger future helped mentally-retarded inmates and was ousness, we “view the evidence in the light respect known his for the law and God. jury’s most favorable findings to the any determine whether rational trier of Appellant’s older sister testified about beyond fact could have found a reasonable appellant changed their childhood and how that there probability doubt is a that [the coming for the worse after home from defendant] would commit criminal acts of that, shortly Vietnam. She said before the continuing violence that would constitute a murders, triple she saw appellant throwing if, society.”10 Only threat to after review many away prized possessions, of his most ing evidence, all of the we record conclude began talking experiences he his about a necessarily rational would have Vietnam, he had never something done entertained a reasonable doubt about the murders, On the day appel- before. of the dangerousness, defendant’s future will we lant his at her keys threw truck and said find that legally evidence is insuffic that, anything happened, if the truck was ient.11 Appellant’s hers. son appel- testified that taught
lant him he welding, and described Appellant suggest does that the loving helpful father others. triple evidence of his gruesome murder Cunningham, psycholo- history a his life-long forensic of violence toward gist, testified that he reviewed appel- young girls had women and is—viewed in State, State, (Tex. Berry McGinn v. 9. See 961 S.W.2d S.W.3d (Tex.Crim.App.1998); (citation omitted). see also Williams v. Crim.App.2007) (Tex.Crim.App. 2008) ("We apply factual-sufficiency do not Id. jury's to the review answer the future- issue.”). dangerousness special car; support jury’s paired helped organize their he vacuum—insufficient Instead, son, it finding. Clearly sports banquet. Appellant’s is sufficient. school that, Gordon, like Saul on the road to argues helped testified that his father *13 Damascus, a experienced he has character fishing him and sports him with and took spending eigh- the last conversion while hunting. taught welding, He Gordon elec- spotless in a disci- years prison teen with work, a work ethic. He good trical and plinary proven record. He has that he no very patient friendly, was a teacher and longer any realistic threat of vio- poses talkative, happy, helpful and to others. blush, is, compelling at first a lence. This Appellant agrees proposition with the argument. past predictor that “the is the best of the sixty that he almost Appellant notes was future,” upon spotless, posi- and he relies a years poor old and in health12 at the time prison predictor tive record as a realistic Appellant points trial. to present the that, Appellant of the future. concludes the evidence that shows that he has not light age prison and rec- “[i]n [his] his stayed eighteen out of trouble for merely ord, only ... in finding rational this years prison, in but he has made continuing that he not be a case is would prison society. positive contributions his reason, society. threat For that his prison garment factory He in the worked must be vacated.”13 sentence Unit; in when he was housed the Ellis he argument appel- This is the same helped potential talking diffuse conflicts trial, during lant made and the inmates; “sense” into frustrated he seriously have it it must taken because prison sports league; gave formed a he just pieces for three asked evidence commissary items to inmates who did not deliberations, during that was its evidence money; helped have he an inmate learn directly relevant argument: to this English legal papers. and draft Dr. Cun- (1) Dr. Hodges’s Austin State School ningham, expert psychologist, his forensic psychiatric report from 1964 when placed appellant group the lowest risk appellant report was 15. That stat- But, prison. prose- for violence in as the out, appellant paranoid ed that seemed pointed appellant cutors had done “extremely and distant and hostile to many positive things of these same before women”; Hodges’s impression he murders well: coached one of teams; boy represents daughter’s Karen’s baseball he “this so- house; things eiopathic personality fixed around the he tended disturbance of Karen; concluded, garden; praised type.”14 he he re- the dissocial He appellant suspected 12. Medical evidence showed that brother were which he never ad- disease, history including readily has a of heart police mitted to which he but told heart in 2004. attack He takes medications during penulti- me about the interview.” The high pressure high reads, blood and cholesterol. Hodges's paragraph report mate of Dr. [Appellant] paranoid, seemed rather dis- Appellant's Brief at 31. tant, deliberately non-smiling, as if he deliberately keep people away interview, must from During psychiatric appellant rejection him to avoid the hurt from further length fairly "talked at some about in- [a] hostility. He said that he did have many volved series of thefts and anti-social friends, throughout stealing some but the interview bearings ball acts such as out of women, bicycles extremely other children's he seemed hostile to so wheels would very deprecating bicycle.” made remarks about not roll because he did not have a them, very Appellant Hodges general have a told Dr. about "several and in seemed to instance, burglary opinion in which he For he thefts and his low of women. [a] then, long prognosis that, “The term does not kept after he turning around good.” look looking at me and grinning.” It was a “weird grin.” evil Karen “called it to the military medical record from ap- attention, Judge’s and then he him told pellant’s stabbing 1967 self-inflicted then, stop. And he did it again. And [the thigh wound after he had judge] were, told him—I think his words I fight girlfriend.15 with his Accord- have to you admonish for that and I’ll have doctor, ing military to the you to call contempt you if stop don’t it.” lifelong “revealed evidence of malad- Karen, According to appellant had that justment.” hospital On the ward *14 grin same when she testified at the 2008 was “hostile and belligerent” and trial. only slowly “began to conform to the
ward milieu.” Appellant’s attorney explained at pictures The appel- and cards that that, trial “I’m saying not Bill Coble is a lant had in his death row cell. different person okay—than he was in — These pictures included numerous you But can see that he’s made scantily clad young women and changes. You can see adapted that he has girls young gymnasts and ska- — environment, himself prison to that[ ] he’s well ters —as as romantic cards and adapted himself to institutional life. photographs from a pen pal. female very clear; That’s clear.” That appel is jury The had also heard from several life, lant has adapted very well to prison different appellant’s sources about mercu- fact, itself, but that does not resolve the sweet, rial moods: one moment calm and special issue: the next moment in a towering rage.16 Is there a probability that the defendant jury The also heard evidence that appel- would commit criminal acts of violence lant, row, after all his time on death was that would constitute a threat continuing still hostile to women. Karen testified society?17 to appeared when she for a hearing in years question almost ten This appellant’s essentially after a normative conviction, original appellant one as the Legislature specify “turned declined to around and watched me particular sit down. And a level of risk or probability of beating up young girl told of a in the class- him and also threatened to kill his fiancée. something room because she said He stated smart to that while he was involved in a him, fight, picked impulsive, up accidentally and he he a knife and poor seemed had controls, right thigh. stabbed in very himself His low self-esteem and he admission, previous story, upon that he project great seemed to responsi- deal of attempted trying to kill himself and was bility for people. his own actions on other missed, stab himself in the abdomen and finally stabbing right thigh. report himself in the The medical set out ex- planation injury: for the really 16. Karen testified that she was scared According patient, his fiancée came Bosque when she were in the from Texas so that he and she could be- County appel- field after the murders because come married. He had arrived from Da lant pistol-whipping would veer from her and Nang and had met her and she was in an threatening wanting carry to kill her to her apartment with patient another fellow. The over the brambles in the field so she wouldn’t thought having that his fiancée was an af- her stumble hurt bare feet. fair with this other fellow and he became so 37.071, angry enraged 2(b)(1). § that he threatened to kill Proc. art. 17. Tex.Code Crim. ity put “future of the institutional restraints on dangerous- But
violence.18 issue ensures that no defen- special recently ness” As we stated in person.19 dant, capital regardless of how heinous his State,20 case law Estrada “This Court’s crime, to death unless will be sentenced future-dangerousness construed the has poses a real threat of jury finds that special issue to ask whether a defendant future violence. continuing threat would constitute in re- prison’ ‘whether or out of without special
The
issue focuses
gard
long
to how
the defendant would
the particular
the character for violence of
individual,
if
merely
quantity
qual-
actually spend
prison
sentenced to
Indeed,
prediction
S.W.2d
made.
of future crimi-
18. See Jurek v.
(Odom, J., concurring
many
(Tex.Crim.App.1975)
nal conduct is an essential element in
throughout
dissenting).
Judge
complained,
our
As
Odom
of the decisions rendered
Legislature
specify any partic-
justice system....
that a
declined to
criminal
task
special
perform answering
probability
in this
issue:
Texas
must
ular level
statutory question
basically
is thus
issue
Legislature
What did the
mean when it
performed
no different from task
count-
provided that a man's life or death shall
*15
day throughout
less times each
the Ameri-
upon
"probabili-
exists a
rest
whether there
system
justice.
can
of criminal
What is
ty”
perform
that he will
certain acts in the
jury have
essential is that the
before it all
mean,
read,
future? Did it
as the words
is
possible relevant information about the in-
probability,
probability, any
there a
some
it
dividual defendant whose fate must deter-
probability?
may say
twenty
there
We
is a
clearly
mine. Texas law
assures that all
percent probability
will
that it
rain tomor-
will
such evidence
be adduced.
row,
percent probability.
or a ten or five
274-76,
Thus,
Id. at
ual,
merely the
not
external restraints of
denying appellant’s
There is no
impres-
theoretically
It
possible
incarceration.
is
history
sive
of nonviolence in prison. Nor
prison
to devise a
environment so confin-
prosecutors
did the
at trial try to minimize
isolated,
ing,
highly
structured that
They
appellant
that record.
noted that
virtually
opportunity
could have
no one
always
good things
has
done some
in his
violence,
act of
but incapaci-
commit an
issue, however,
life. The
is
he
whether
Legisla-
tation is
the sole
focus of
person
the same
the same character
—with
ture or
death penalty precedents.22
of our
explosive
for sudden
violence—that he was
he
diagnosed
age
when was
at
as having
Supreme
has
Court
stated
“sociopathic
a
personality disturbance of
capital sentencing system
that “a state
(1)
the dissocial
Has
type.”
his character
rationally
must:
narrow the class of
changed
defendants;
again
since he was
diagnosed as
death-eligible
permit
a
having
history maladjustment,
reasoned,
lifelong
jury to
render
individualized
belligerence
violence,
he
on
when
was
sentencing determination based
hospitalized
record,
age
at the
fighting
19 after
death-eligible
personal
defendant’s
characteristics,
with his fiancee and
himself in
stabbing
and the circumstances of
Thus,
thigh
as a Marine?
the “evil
juries appropriately
his crime.”23
Was
grin”
gave
Karen
that he
said
her
court
focus
the defendant’s individual char
old,
fifty years
when
acter
probability
for violence and the
again
then
sixty,
he would
when was
indicative of
commit acts of violence what
*16
continuing animosity
ever
a
society he found himself.24 Obvious
and character for
ly,
brutality
the
that
pic-
likelihood
a
does not
toward women?
did the
defendant
And
or will
pose
heightened
not
risk of vio
tures in his
row
death
cell indicate an
athletic,
lence in
in
prison community
the structured
unnatural interest
young,
scant-
relevant,
criterion,
is a
indeed important,
ily clad women for a sixty-year-old man
(1)
21.
Id.
cap
at 281.
limited to:
"the circumstances of the
offense, including
ital
the defendant’s state of
See,
State,
Druery
22.
e.g.,
v.
S.W.3d
225
working
mind and whether he was
alone or
("State
(Tex.Crim.App.2007)
506-07
has the
(2)
parties,”
with other
"the calculated na
proving beyond
burden of
a reasonable doubt
acts,” (3)
ture of the defendant’s
"the fore
probability
that there is a
that [the defendant]
thought
and deliberateness exhibited
would
criminal
commit
acts of violence in the
execution,” (4)
crime’s
"the
of a
existence
future,
threat,
continuing
so as to constitute a
record,
prior
severity
criminal
and the
of the
State,
prison”);
whether in or out of
v.
Smith
crimes,” (5)
prior
age
"the
and
defendant's
(Tex.Crim.App.1995)
898 S.W.2d
personal
of
circumstances at the time
(how
(plurality op.)
long
capi-
a life-sentenced
offense,” (6)
commission of the
"whether the
spend
tal
prison
defendant will
in
"is not
acting
defendant
under
or the
was
duress
proper
in
even
the context
the [future-
of
domination of another at the time of the of
dangerousness] special
when
issue because
fense,” (7)
evidence,”
"psychiatric
considering
rep-
whether a defendant
State,
"character evidence.”
continuing
society,
Keeton v.
resents a
threat
to
prison
'society'
term
(Tex.Crim.App.1987).
includes both the
S.W.2d
These
non-prison populations”).
factors do not constitute an exhaustive list.
(Tex.
Barnes v.
Marsh,
163, 173-74,
Kansas
548 U.S.
Crim.App.1994). Significantly, these factors
(2006).
126 S.Ct.
with a heart eral issues.28 present charac- constitutional duty to assess dangerousness, and there ter future for Daubert/Kelly Hearing. A. The support finding, to its evidence ample doubt, trial, objected Dr. appellant At beyond appellant a reasonable testimony and requested proposed Coons’s had a conversion on the experienced rather, hearing pres- outside the Damascus; Daubert/Kelly29 road to he had hearing, ence of At that Dr. jury. age same for violence at character he is board testified that certified 15, 19, Coons ages despite he did at and has been general psychiatry practicing spotless record.25 prison thirty-one years. for psychiatry forensic legally sup- sufficient to The evidence is sanity competency He has evaluated finding on the future dan- port jury’s 10,000 8,000 has people, between gerousness special issue. We overrule performed 150 evaluations of “future dan- two. points error one and gerousness,” fifty and has testified trials an expert. Admissibility of Dr. Coons’s psychiatric prin- Coons testified Testimony Expert ciples commonly making used are when person’s danger determinations of a four, points In of error three and himself in the context involun- or others appellant contends that Dr. Richard tary psychiatric commitments. He said testimony fu expert concerning Coons’s upon psychiatric that he princi- also relies ture was not un dangerousness admissible ples “fu- when he evaluates defendants for it der Rule 70226 was insufficient because capital ture dangerousness” murder ly agree. point reliable. We of error trials. He stated that “the best repeatedly five, type asserts that this predictor past” of the future is meet the relia heightened evidence fails to noted that bility of the Amend requirement Eighth
ment, there Supreme people but the United States are certain trends who *17 Estelle,27 are, words, Court, rejected patterns in v. this in other habit or Barefoot argument, required personality rely are we patterns and we to follow that —that See, State, issue, e.g., qualified 25. fact Blue v. 125 S.W.3d in a witness as an ex- skill, (evidence (Tex.Crim.App.2003) pert knowledge, experience, suffi- train- 493-96 finding ing, may support jury’s testify cient to of future dan- or education thereto in the gerousness despite opinion defendant's evidence of form or of an otherwise. years row nonviolence on death for seven 27. 463 S.Ct. U.S. 77 L.Ed.2d expert testimony retrial and that there before (1983). probabili- a no more than statistical 48% ty that defendant would commit acts of vio- State, prison prior lence in because his violence was v. 475 n. 10 Casarez "relationship-driven”; ("As largely evidence judges (Tex.Crim.App.1994) on this hon- girlfriend Court, showed that defendant doused his apply orable we are bound to the Unit- gasoline in and set her afire he had a interpreted by ed States Constitution women, history abusing lengthy espe- Court; other Supreme luxury have we do not or cially girlfriends). and former current liberty ignore binding precedent.”). reads, Evid 702. Rule 702 Tex.R. 29. See Merrell Dow Daubert v. Pharmaceuti- cals, scientific, technical, specialized If or 113 S.Ct. other 509 U.S. (1993); Kelly knowledge will assist trier of fact to L.Ed.2d 469 (Tex.Crim.App.1992). the evidence or understand to determine S.W.2d 568 then, Um, course, on. everyone there’s the because psychiatrists different has, experience one the training and construct their own methodologies. experience then the that one has in see- Dr. Coons multiple stated that psychia- ing and, quite people a number of uh— trists would not necessarily agree on what watching classifications within vari- uh— important is in the first looking to factor — Uh, jails ous forth. and so those are past predict conduct to future conduct. principles kind of the or the things that “I’m the one making who’s the decision— opinions are based on. are— about whether it means something to me
Dr. Coons noted that there are some psy- my terms of what education expe- I— diagnoses chiatric that are listed in the background rience or is.” It is a subjec- DSM,30such as antisocial personality dis- tive evaluation. assessing past When vio- order, might indicate that person lence, Dr. Coons looks at its nature and dangerous. case, But this Dr. Coons context. relied on materials supplied by the District
Attorney’s Office. The same subjectivity is true for the explained Coons his standard meth- factor, second a person’s attitude about odology assessing the issue of future violence, factor, as well as the third dangerousness. For at least the past circumstances of the offense. Two differ- twenty years he has relied several psychiatrists ent may come to different different factors: conclusions based on the same facts. Dr. (1) violence; person’s history The Coons said that psychiatrists forensic de- (2) person’s The attitude toward vio- velop experiential an body of knowledge lence; approach information and that helps (3) The particulars of the criminal of- them make their decisions. But Dr. Coons fense; disagreed “just that it was gut feeling.” (4) person’s The personality and general When it comes to the fourth factor of
behavior; behavior, personality and Dr. Coons looks (5) conscience; person’s to whether the crime was an aberration or person Where the will be—in or out whether that person has had a problem prison. looking out for other people. Is he con- He assesses these factors based on the trolling? Manipulative? With the fifth information that he given. has been This factor, “conscience is involved in—in help- is his own personal methodology. He does ing And, *18 people control their behavior. I not know rely whether others upon this mean, really, guess I everybody almost method, and he any does not know of knows that.” There is yardstick no psychiatric or books or articles psychology factor, measure it. With the final Dr. that use his factors. But are mat- “[t]hese Coons stated that if person the is on death ters that are commonly discussed at—at row he will be less violent “every- because meetings among forensic psy- forensic body that’s on death appeal by row is on .... chiatrists generally speaking, [B]ut they definition. And tend to be on their that, those are the—are things the kinds of uh, Uh, good behavior. if psychiatrists they forensic because would take into —on consideration in an their bad reaching opinion.” they get He behavior and another doubts that his methodology by is shared trial punishment, they they or know uh— Diagnostic and Statistical Manual of Mental Disorders. the Dr. then testified before again. about it Their violence Coons
they’ll hear and, response lengthy hypothetical to a or threats or whatever.”31 on death row appel- features of setting out the salient blend, overlap and All of these factors crimes, opined lant’s life and that there no book or article but Dr. knows of Coons that would probability was a these or their over- that discusses factors future acts of violence. commit any not aware of studies lap. He is Principles Concerning Legal B. journals regarding the accura-
psychiatric Psychiatric Expert Admission of into future vio- cy long-term predictions of Testimony Psychological Concern- or of capital prosecutions lence in murder Dangerousness. ing Future any concerning predic- error rates such expert of testi admission any psychiatric he aware of tions. Nor is for an abuse of mony appeal is reviewed on making of these support studies which However, judges must discretion.32 trial predictions. gone has never Coons “gatekeeper” act as a true when address try check back and obtained records to ing reliability expert and relevance of accuracy dangerousness” of the “future Daubert, testimony.33 In the United past. in the He predictions has made that Supreme States Court held when the accuracy rate is. cannot tell what his subject testimony the expert’s of is “scien redirect, knowledge,” testimony tific the basis of his prosecutor On asked Dr. grounded accepted be in the methods must legal containing to read from a brief Coons As that court procedures science.34 the names and titles of some articles on explained, dangerousness future been filed had qualify order to “scientific knowl- [I]n case,
in a different
but Dr. Coons was not
an inference
must be
edge,”
or assertion
any
familiar with
of those articles.
derived
the scientific method. Pro-
testimony,
judge
on
the trial
Based
this
posed testimony
supported by
must be
that Dr.
as an ex-
qualified
found
Coons
e.,
appropriate
“good
validation —i.
witness,
subject
pert
matter
grounds,” based on what is known.
testimony
an
for ex-
appropriate
one
short,
requirement
expert’s
that an
perts,
admitting
expert
and “that
testi-
testimony pertain to “scientific knowl-
mony
actually
will
assist the factfinder
edge” establishes a standard of eviden-
deciding
tiary reliability.35
this case.”
Phannaceuticals,
objec-
31. Dr. Coons admitted that there is no
33. Daubert v. Merrell Dow
Inc.,
579, 589-92,
way
differentiating
tive
locations,
between the two
509 U.S.
113 S.Ct.
general popula-
death row
(1993);
versus
40.
In
set out the
list of
Kelly,
42.
275 judicial case, in decisionmaking.53 We reaffirm ticular be admissible under Rule 702 and helpful to the in a capital murder expert testimony may, par- that such in a However,
trial.54
the burden is on the
Estelle,
880, 897,
Sales,
463 U.S.
Bruce D.
The
Clinical and
Barefoot
Effects of
3383,
(1983).
S.Ct.
proponent future methodology assessing long-term of in each admissibility individual establish its objective “ga- of the dangerousness.56 The and, constantly evolving is case.55 Science make certain tekeeping” requirement is to therefore, “gatekeeping” the Rule 702-703 employs profes- the same expert that an must keep up of the trial court standards in the rigor sional standards of intellectual understanding of with the most current expected practice as is in the of courtroom endeavor, including the field any scientific validity field.57 The of the relevant nary reasoning or dangerousness capital assessment of whether the prove in sen- to future Johnson, See, testimony e.g., methodology underlying 210 F.3d is sci tencing. Flores v. J., 456, (5th Cir.2000) (Garza, reasoning entifically concur- valid and of whether that 464-65 ("The community virtually ring) methodology properly applied scientific can be to or omitted). unanimously agrees psychiatric issue.”) (footnotes testimo- the facts in is, dangerousness put ny to it blunt- on future ly, and unscientific. It is as true unreliable argues previ 56. The State that this Court has '[njeither the today it was in 1983 that ously upheld of Dr. the admission Coons’s single cited a Court nor the State of Texas has dangerousness” testimony many in "future contradicting reputable scientific source cases, State, recently Ramey most v. No. professionals in this unanimous conclusion of 335276, *14-15, AP-75,678, 2009 WL 2009 psychiatric predictions long-term field that 124, Tex.Crim.App. Unpub. LEXIS *44-45 wrong are often than future violence more 11, 2009) (not (Tex.Crim.App. designated Feb. any they right.' ... On the basis of evi- are State, Espada publication), for v. No. AP- court, presented appears it dence thus far to a 75,219, 4809235, *8-10, WL 2008 Tex. psychiatric predict that the use of evidence to (Tex. Crim.App. Unpub. LEXIS *21-27 dangerousness’ all a murderer’s 'future fails 5, 2008) (not designated Crim.App. Nov. Overall, theory five Daubert factors.... publication). unpublished These cases are reliability predictions that scientific underlies precedent. and therefore cannot be cited as dangerousness uniformly of future has been rate, "grandfather anyAt in” courts do not rejected by community the scientific absent testimony particular by expert in a field or to, routinely testify those individuals who particular simply witness because the court from, predictions dangerousness.”). profit expert testimony in has admitted that field or Hernandez, by past. in the See witness State, 55. See 116 S.W.3d 30- Hernandez (fact may at 30 that trial court S.W.3d ("The (Tex.Crim.App.2003) State had the testimony particular ex have admitted from show, by proof burden of at trial ... clear pert witness does not mean that evi before evidence, convincing analyz that the ADx case). particular dence is reliable Fur determining er is a reliable method of thermore, Daubert/Kelly each record and the marijuana person’s body. presence of in a It hearing of record must be examined on each any testimony, any failed to offer scientific its own merits. We cannot tell what material, any judicial opinions published precise Daubert/Kelly gatekeep- content of the might judicial from which the trial court take cases, ing hearing, any, if was in these other (footnote reliability.”) notice of its scientific rely upon nor could we the content of such a omitted); Kelly v. assessing hearing in the ad another case (Tex. 1992) ("before Crim.App. novel scientific missibility testimony of Dr. Coons’s in this may evidence be admitted under Rule case, testimony were intro unless the former court, persuade proponent must the trial gatekeeping hearing. duced at the current evidence, convincing that the clear relevant”); evidence reliable and therefore is Gianelli, Daubert, 592-93, Interpreting 57. See Paul C. Daubert: at see also 509 U.S. Evidence, ("Faced Rules 15 Cardozo the Federal expert proffer S.Ct. 2786 with a (1994); then, 2001-03 see Daubert v. testimony, judge scientific the trial must L.Rev. Pharm., Inc., outset, pursuant Merrell Dow 43 F.3d determine at the to Rule ("Daubert (if (9th Cir.1995) II") 104(a), ex- proposing 1319-20 expert whether the (2) pert upon independent testify knowledge that evidence is not based scientific will possible professional assist the trier of fact to understand or deter research outside of its litigation purposes, prelimi mine a fact in entails a courts should look for issue. This record, upon the From this we expert’s depends conclusions cannot tell what principles psychiatry of forensic methodology.58 of the Coons soundness
might
have relied
because
cited no
*23
books, articles, journals, or even other fo-
Daubert/Kelly
Application
of
C.
psychiatrists
practice
rensic
who
in this
Principles
Nenno
and
in This Case.
objective
area.61 There is no
source mate-
As the Seventh Circuit ob
rial
in this record to substantiate Dr.
Ciba-Geigy
v.
Corp.,59
Rosen
in
served
methodology
appro-
Coons’s
as one that is
Daubert a district
of
regime
“under
the
priate in the
of
practice
psychia-
forensic
asked to admit scientific evidence
judge
try. He
testimony prop-
asserted
his
whether
evidence
must determine
the
is
erly
upon
relied
and
principles
utilized the
scientific, as distinct from
genuinely
being
involved in
psychiatry,
the field of
but this
speculation
by
genu
unscientific
offered
a
ipse
dixit of the witness.62
simply
is
the
Here,
ques
ine scientist.”60
there is no
Dr. Coons
agreed
methodology
his
is
genuine
tion that Dr.
is a
forensic
Coons
idiosyncratic
one
and
that he has devel-
career,
a
psychiatrist
lengthy
with
medical
on
oped and used
the past
own for
the
is
but
issue under Rule 702 whether
years.
twenty
thirty
Although
to
there is
dangerousness”
testimony
his “future
is
significant body
a
of
concerning
literature
upon
scientific
of
principles
based
the
fo
empirical accuracy
predic-
the
of clinical
psychiatry.
rensic
tions versus actuarial and risk assessment
dangerousness
objective,
"other
verifiable
prediction
evidence
the
erature on
should
testimony
'scientifically
qualified
prin-
is based on
valid
be considered
a
to offer
clinical
prediction
dangerousness, regardless
ciples’
requirement may
by
of
of
this
be met
her
attainments.”)
experiential
educational or
"precisely [explaining]
experts]
how
went
[the
Dix,
(citing George
Penalty,
W.
The Death
reaching
about
their
conclusions
and
"Dangerousness," Psychiatric Testimony, and
pointing]
objective
some
source—a
Ethics,
151,
5
L.
175—
treatise,
policy
learned
the
of a
statement
Professional
Am. J.Crim.
(1977)).
77
association,
professional
published
a
article in
reputable
journal
a
the
scientific
like—to
Arce,
62.See
v.
Burrow
997 S.W.2d
235
they
show that
have followed the scientific
(Tex. 1999) ("Although expert opinion testimo
method,
(at least)
practiced by
recog-
as it
a
case,
ny
provides
often
valuable evidence
a
field.”).
minority
nized
of
scientists
their
opinion,
'it
is the basis
the witness’s
qualifications
not the
or his
witness’s
bare
Camacho,
Whirlpool Corp.
See
58.
298
alone,
opinions
that can
issue
settle an
as a
(Tex.2009) ("When expert
S.W.3d
law; a
matter of
claim will not stand or fall
involved,
testimony
rigorously
is
courts are to
ipse
on the
of a
mere
dixit
credentialed wit
validity
assumptions
examine the
of facts and
");
Ratliff,
ness.'
Earle v.
based,
testimony
on which the
as well
is
as
(Tex. 1999) ("An expert’s
ipse
simple
dixit is
research,
methodology
principles,
the
un-
matter; rather,
insufficient to establish
derlying
expert's
conclusions and the
expert
explain the
must
basis
his state
principles
manner in which the
and method-
facts.”);
ments to link his conclusions
ologies
by
applied
expert
to reach
are
Joiner,
see also General Electric Co. v.
conclusions.”).
136, 146,
U.S.
118 S.Ct.
based those factors been verified did not any psy- chiatric assessment appellant accurate over time?67 Some of after his eighteen years of nonviolent great Coons’s factors have behavior on appeal intuitive row, death nor did he refer any psycho- jurors judges,68 they but are actual- logical testing might have occurred in ly accurate predictors of future behavior? that time frame. forthrightly
Dr. Coons stated that “he does way” it his methodology with his own Based the specific problems and gone has never back to see whether his above, omissions cited we conclude that prior predictions dangerousness of future prosecution satisfy did not its burden have, fact, been Although accurate. of showing the reliability scientific of Dr.
had interviewed before the first methodology Coons’s predicting future trial in Dr. Coons had lost his notes dangerousness by clear and convincing evi- of that interview in a flood dence during the Daubert/Kelly gatekeep- apparently *25 independent memory had no of ing that inter- hearing particular in this case.69 We responsibility; attitudes toward social lacks If these scientifically appro- factors are not insight psychological into his own struc- priate violence, predicting ones for future ture; and perception reality distorts his of appeal then their doubly danger- intuitive is in accordance with his own wishes and jury might ous as the accept testimony such needs. Johnson, uncritically. See Flores v. 210 F.3d Kozol, Harry Ralph L. Richard J. Boucher & 456, (5th Cir.2000) (Garza, J., 465-66 concur- Garofalo, Diagnosis F. and Treatment ("[T]he ring) (as of problem here expert with all 371, Dangerousness, 18 Crime & 379 Delinq. testimony) is not the introduction of one (1972). description This is not unlike that opinion man’s dangerous- on another’s future given by appellant, Dr. Coons about and it ness, opinion but the fact that the is intro- may person be a valid assessment of a who (not by duced one whose title and education future, likely "dangerous” would be in the but designation to mention 'expert') gives as an nothing there is in this record that shows Dr. significant him credibility eyes in the of the upon principles Coons relied the and method- jury opinion as one whose comes with the ology colleagues. of Dr. Kozol or his fact."); imprimatur of scientific see also C. Bonnie, Robert Psy- Showalter & Richard J. study capital 67.“One of murderers commut- Capital Sentencing: chiatrists and Risks and ed as a result of the Furman decision found Responsibilities Unique Legal Setting, in a 12 paroled by 188 murderers were the end (1984) (not- L. 165 Psych. Bull. Am. Acad. 1987, serving average years of an of 5.3 in the ing jurors already likely that because are community. Only outside again, one killed believe poses danger that a defendant a future committing for a rate of repeat .1% homicides violence, they expert of will tend to overvalue per year. Six of the 188 committed violent predictions beliefs). that confirm those offenses, resulting in a violent recidivism rate per year.” Jonathan R. .6% Sorensen & 69. Weatherred v. Rocky Pilgrim, L. An Actuarial Risk Assess- ("Under (Tex.Crim.App.2000) Rule the by Capital ment ViolencePosed Murder De- show, proponent of scientific evidence must fendants, 90 J.Crim. L. & Criminology convincing proof, clear and that the evi- (citing Marquart James W. & Sorensen, proffering sufficiently dence he is is relevant Jonathan R. Study A National the jury accurately and reliable to assist the Assessing Furman-Commuted Inmates: understanding other evidence or in determin- Society Capital Offenders, Threat to from in'issue.”; (1989)). ing proponent expertise a fact L.A. L.Rev. One does not Loy. eyewitness any reliability nothing know on psychiatric expert predict- whether offered more capital testimony ed that some or all gatekeeping of these than his own at murderers hear- Chemical, danger. would ing); constitute a future also see Moore Ashland deliberations, non-constitu- such therefore its judge trial conclude making error is harmless.73 admitting tional abused his discretion tri- the entire jury.70 analysis, harm we examine testimony before Coons’s calculate, possi- as much as al record and Ex- Inadmissible Dr. Coons’s D. Did ble, error impact of the probable Testimony Appellant’s Affect pert con- rest of the evidence74 We upon the Rights Fair to a Sen- Substantial supporting overwhelming evidence sider tencing Trial? the errone- issue to which particular evidence was directed— ously admitted in the ad found error
Having
here,
dangerousness” special
the “future
testimony,
expert
mission of Dr. Coons’s
factor in our
only
that is
one
issue—but
error affect
whether that
we must decide
responsibility
It
is the
analysis.75
harm
rights to a fair
substantial
ed
harm af-
appellate
of the
court to assess
right
A
trial.71
substantial
sentencing
record,
reviewing the
and the burden
ter
had a substantial
when the error
affected
appellant
whether the
to demonstrate
or influence
deter
injurious
effect
by a trial court error does
harmed
But
if the
jury’s verdict.72
mining the
or
either
in
rest on
evidence did not
improperly admitted
State.76
slight
had but a
effect
fluence the
(in
Inc.,
(5th Cir.1998) ("Thus,
sentencing
capital murder
App.2004)
151 F.3d
seeking
erroneously
hearsay
party
phase,
to have the district court
admitted
state
expert testimony
demonstrate that
admit
must
wife—
by murder victim—defendant's
ments
*26
expert’s findings and conclusions are
the
psychologi
physically
had
that defendant
method, and, there-
on the scientific
based
given
cally
her
harmless error
the
abused
fore,
objec-
requires some
are reliable. This
amount of other evidence from
considerable
tive,
expert’s
independent validation of the
jury
have
that
which the
could
concluded
expert's
methodology. The
assurances that
had been abusive toward his wife
defendant
generally accepted
utilized
scientific
has
support
ample evidence to
and more than
insufficient.”).
methodology is
danger” special
jury's
"future
answer to the
issue).
Mendez,
Cooper Tire & Rubber Co. v.
204
70.
797,
("Admission
(Tex.2006)
of
800
S.W.3d
States,
750,
v.
328 U.S.
72. Kotteakos United
testimony
expert
that does not meet
relia
776,
1239,
(1946).
71. (Tex.Crim.App.1997) (apply S.W.2d State, Motilla v. 78 S.W.3d 356-58 44.2(b) erroneously ing admit P. Tex.R.App. (Tex.Crim.App.2002). hearsay prove future dan ted documents to sentencing phase capital gerousness in of State, (Tex.Crim. trial; harmless); v. 43 S.W.3d Johnson murder error see also Garcia (Tex.Crim. App.2001). 927-28 44.2(b). However, Brief, appellant In his cites articles that P. each case must be of persuasive facts, note the value “scienti- own high taking examined on its into testimony, especially fic” clinical expert the specific prob- account evidence concerning psychological testimony future impact able of the erroneously admitted Indeed, dangerousness.77 some studies expert evidence the jury’s decision- juror on an ex- have shown that reliance making the particular case.
pert’s proportional is directly credentials case, complexity repre- ample
to the the information this there was information, complex sented: the more probability evidence that there was a jury background, the more the looks to the appellant would commit future acts of vio experience, expert and status of the him- quite apart lence from Dr. Coons’s testi self to the of his rather than content testi- And, mony. above, as noted it was some is also mony.78 There some evidence that that independent evidence that the jurors higher medical expertise value than requested to during see its deliberations. thus, expertise;
other scientific even when First, psychiatric interview and evalua identical, jurors the information is find evi- Hodges tion done Dr. twenty more than doctor persuasive dence from a more than years forty years before the offense and very testimony psycholo- same from reached before trial the same basic Furthermore, gist.79 that corre- evidence concerning conclusion as Dr. Coons did firmly sponds may held beliefs be par- appellant’s animosity character and his to Thus, ticularly persuasive jurors.80 an Hodges’s ward women. Dr. inter expert’s juror’s to the appeal own common completed view and clinical evaluation was may considerably persua- sense be more long before any possible motive to view the sive than complex, a counterintuitive and facts and later events life verified, empirically theory. but through any dangerousness” litiga “future prism Expertise tion arisen. had support
These studies and articles would entirely developed independent litiga determination the erroneous admis- by professionals acting tion in their normal psychiatrist’s sion of a unreliable testimo- *27 likely ny future dan- field is more to be considered reli concerning defendant’s gerousness a than right expertise developed especially affects substantial to a able fair sentencing hearing Tex.R.App. under for trials.81 The same is true with the al., Complex Cooper 77. See Charles T. McCormick et Joel et Testi- al., McCormick Scientific Decisions?, 203, (3d ed.1984); mony: How Jurors Make § Do at 608-09 20 on Evidence (1996). 379 Strong, Logic Language Expert John W. Law Hum. Behav. and in & Testimony: Limiting Expert Testimony by Re Wursten, April Psy- Greenberg Jeff & The Function, Fortn, Reliability, and strictions of chologist Psychiatrist Expert Wit- and the as ("There (1992) 71 Or. 361 n.81 is L.Rev. Credibility Influence, nesses: Perceived and 19 unanimity among virtual and commen courts (1988). 378 Psych. Prof. & Prac. Res. perceived by jurors tators evidence to be particularly 'scientific' in nature will have J. 80. See C. Robert Showalter & Richard Bon- nie, effect”); persuasive Psychiatrists Capital Sentencing: & and Daniel A. Krauss Bruce Sales, Unique Responsibilities Legal Risks and in a D. Clinical Effects of Scientific Setting, 12 &L. 165 Testimony Psych. Expert Making on Juror Decision in Am. Acad. Bull. jurors (noting that tend to overvalue Capital Sentencing, Pol. & L. Psych. Pub. predictions pre-existing their be- that confirm (2001) (clinical psychological expert testi liefs). mony concerning dangerousness in future setting strong jurors). had mock trial effect on 81. See Fed.R.Evid. committee advisory (noting that one *28 ing support. and institutional expressly purposes of testi- opinions their for (internal omitted). Id. citations ") Dow fying.' (quoting Daubert v. Merrell Pharmaceuticals, Inc., 1311, 43 F.3d State, (Tex. Leday v. 983 S.W.2d (9th Cir.1995)). Circuit ex- As the Ninth State, v. Crim.App.1998); see also Valle plained, ("An (Tex.Crim.App.2003) S.W.3d expert That an testifies based on research any] in the admission of evidence is [if error litiga- independent of the he has conducted evidence comes in else cured where the same objective proof important, objection.”). provides tion where without comports with the dictates that the research thing, experts good science. For one charts and 83. His slides included statistical existing findings comprehensive research whose flow from references to scien- numerous likely are to have been biased toward a tific articles. less promise particular of re- conclusion muneration; expert prepares Psychiatric when an re- 84. The American Association’s concluded, report findings being 1974 Task Force ports and before hired as a Coons, hypothetical that, criticized “the inference” testified opinion, appel- his predicting mode of future dangerousness no risk of future violence: posed lant said, the gentlemen “[H]e ladies and of the entirely speculative.... just That’s jury likely are more somebody to kill guessing blind unless those factors have the future” than appellant. Coons, Dr. predictive been demonstrated to be of using very that same methodology and in prison. Critically impor- violence facts concerning appellant, exactly came to tant. ... the problem That’s with not opposite conclusion.86 Dr. Cunning- literature, knowing knowing without ham also told that major anything about the scientific studies that psychological associations had criticized have been done this area is then you Dr. methodology Coons and his as “unreli- have no idea whether the factors that able and inconsistent with the standard of you’re at looking predictive any- are sum, practice.” In Dr. Cunningham refut- thing or not. expertise ed Coon’s and the whole According Cunningham, to Dr. if “what “tea-leaf-reader” notion of clinical psychi- you’re doing basing your it on own gut predictions atric dangerousness. of future you haven’t done anything to check Furthermore, your gut whether reaction is correct or the prosecution did not not, your accuracy then level rely never im- heavily upon Dr. Coons’s testimony proves.” during Instead, its closing arguments. prosecutor emphasized position pointed
He first trial as an exactly example person of the same “tea-leaf-reader” school of subjective he was clinical when he killed parents assessments. In that Karen’s trial, Dr. James her Grigson,85who used the brother back in 1989. He had not same subjective methodology as Dr. changed a bit.87 The prosecutor then went State, "dangerousness” AP-74,951, Predictions of judg- are Allen v. No. 2006 WL sort, 28, 2006)
ments of a "relative
(Tex.Crim.App.
risk”
*9
statements
June
(not
(Johnson, J.,
comparative probabilities
designated
publication)
that are
usual-
ly quite
concurring).
may
reasonably
low. All that
be
concluded in most
cases is
in the clini-
Grigson
85. Dr.
was nicknamed "Dr. Death”
experience,
knowledge
cian's
and from his
by the
psychia
media and was one of the two
literature,
persons
of the
some
are at a
dangerousness”
trists whose "future
testimo
comparatively higher risk for future vio-
Estelle,
ny was at issue in
463 U.S.
Barefoot
lence than are others.
(1983);
103 S.Ct.
bility by person of future violence who is leaves. in, example, like the defendant for back- ground, status, history, "[tjhis criminal mental and prosecutor’s theory 87. The was that is propensity demonstrated person years for violence exactly. the same later There against others. explained, is no difference.” He violent acts you’ve dangerous committed from the murders evidence on to recount you that have no re- you’ve to and shown bragging appellant’s themselves form un- beings any human in gard for prosecutor then The Karen afterwards. you, that serves of something less it’s future topic predicting of turned to the course, you that will probability there’s a dangerousness: violence. commit criminal acts of person’s future? predict we Can heard Well, absolutely appel- can. You to prosecutor we The then referred He made an Hodges psychologist, Cunning- Dr. said. Dr. expert what lant’s he ham, He talked about how analysis of it. and how he had called Karen biased women, how he had a gave of her an saying appellant had dislike that twice con- them. Did he? His opinion appear- low of in two different court grin evil out. And Dr. absolutely borne then returned to prosecutor duct was ances. The it prognosis poor, is Hodges said lack of conscience his theme was, ultimately restrained, person this simply because how he had been himself. only cares about in changed, prison. not Bobby’s defense, offi- closing argument, then recounted how fellow in its He appellant dangerous- that would on the future predicted quickly cer had focused argued violent act after he had been well. that commit some ness issue as Counsel Cunning- Karen before the evidence that Dr. kidnapping arrested for the statistical very Dr. briefly presented He then turned to ham had made it difficult murders. prove to prosecution for the Coons: commit future acts of violence. He would Dr. examined —first he talked Coons experts: the two compared before the first [appellant] personally him, then I want to talk about Dr. Coons versus trial in 1990. He interviewed Cunningham, really him. Dr. because it does assessment of And gave he sure, Dr. versus deal with med- sort of come down to Coons you assessment is— Dr. a likable training psy- Cunningham. Coons is predictions ical and the job an excellent just guy. common sense. Dr. Coons does chiatrists —but it’s He to have a lot of testifying. If have a conscience and seems you don’t case, during pre- the evidence And then the courtroom The evidence this week, you you trial she told that when she— from the witness stand here last sented sobbing he re- after she burst into tears and was and testified to shows that has no do, him, you August at her He had no remorse on and looked saw morse. gave got you. I I individually peo- killed her the same smile. hurt when he three Folks, kidnapped you. is man that com- ple and then Karen Vicha and this the same her all what he'd done. He had mitted those murders. told about thing prove? we can He sorrow in that at all. And he—he sim- What’s another no attachment ply doesn’t have it. It’s not here. It's has same unnatural —he young girls he did when he was out in within And what did he do later not him. molesting them. You’ve unspeakable horror that he inflict- the free world after the testimony. hearing heard that You’ve heard what ed on her? There was a this sitting questioning the evi- years ten later and she was out he did. There’s no court now, dence about that. And so what does there in the audience. This man turned her, giving jail got pictures of— glaring her an evil he do in his cell? He's and was at 30-year-old years slaughtering pinups of women from smile ten later after her got pictures young girls in family giving Playboy. He’s her heartache that lasts any gymnast positions. He grinning various same for a life. He's at her. Is that years person was a molester and a murderer remorse? Ten later he’s the same killing. August person that did the back on *30 Okay. completely He to have who horse sense. seems is uninterested whether correct totally a lot of common sense. That’s he’s or not.... Cunningham extremely
true. Dr. is ... get How can he ever better? Okay. has a long-winded. He hard How can establish jury he for the that answering question time sort of a direct- opinion is reliable? He can’t because ly. I those But that’s recognize facts. he’s not a a scientist. He’s tea-leaf a All right. because he is scientist.88 reader. Cunningham being Dr.
And talked about The defense then Dr. recapped Cun- a what scientist and that means. What ningham’s testimony which had been that is, I at just that means don’t look appellant posed an extremely low risk of Okay. evidence make a guess. and wild committing future acts of violence because guy I’m not a reader. I’m not a tea-leaf (1) well-adjusted life; he is to institutional well, I’m to says, just going depend who (2) he is sixty years “aged old and thus has say on my my experience per- and this — (3) years; out” his violent he per- has danger okay—without is a son future — many positive developed formed acts and a work, going checking my back with- and inmates; positive attitude toward fellow things, out quantifying being without (4) he serving very is long sentence and know, able I’m to say, you to correct this years “40 long-term tests” show that in- quantum certain of correctness.... So statistically likely mates are less commit up he’s a scientist. A scientist comes of aggression acts than are “short-term- idea, with an theory. Okay. He tests (5) ers;” he has a GED and additional theory. just that He doesn’t test certificates; work and he has continu- theory, gives also his data but he to ing to the family community. ties All of at, they other to look can scientists so supported by these factors are “the num- test his Then back theory. goes and reality. bers exist These are the double-checks his work. Then he numbers. So making up official he’s not thinks, now, maybe there’s a weakness just the numbers. He’s scientist. He’s my argument already own that I’ve reporting what the data is.” defense go made. Let’s back double-check and danger- concluded its discussion of “future changes that weakness and see it that ousness,” with the statement that “Dr.
our numbers or does that reinforce our Cunningham’s very appro- conclusions are right. numbers. All So that’s what a and priate very reasonable and scientific scientist is to do. supposed provable opposed to Dr. Coons’s conclusions, which are nonscientific and you Do remember Dr. testi- Coons’s if provable. Okay. they And even Coons, mony? you your Dr. do check provable, were he hasn’t to go bothered Coons, really. you work? Dr. Not do try them.” then prove out Counsel going looking remember back at the mitigation ap- moved on to the issue and people you predict- records of have youth. pellant’s miserable childhood danger ed are be a going to future see Well, they if sure really During argument, prosecu- were? I’m I’ve his final it, done I can’t tell who you very briefly by but I’ve tor mentioned Coons words, psychia- done it with. In other he’s a guy reminding another numbers, already explained looking every had who at out 88. Defense counsel these why issue, Cunningham: he had called Dr. "Be- studying scientist who is this he’s the Cunningham leading cause Dr. is the scientist leading guy.” right. every in this field. All Out of scientist *31 286 (1) other evidence
trist, appellant ample sup- had talked to There was Hodges, Dr. porting finding that there was a at him in and “he looked back 1964 probability appellant that would answers” and reached the listened to his violence;89 commit future acts of “extremely was appellant that conclusion (2) women, psychiatric The same basic evidence very opinion low of wom- hostile to appellant’s character for violence en, control, very low self-esteem. poor has admitted, with- admissible responsibility for great deal of Projects a other, objection, through entirely out people. other It was actions on his own objective, independent medical got kidnapped. that she It Karen’s fault by Dr. reports Hodges sources —the up because she fault stood was Karen’s military years and the doctor before it it ruined his life. So was her him. And appellant committed these mur- revenge to extract on fault. And he had ders; brutal, in the most her and he did it (3) opinion particu- Dr. Coons’s was not way possibly could.” The most selfish certain, larly powerful, strong;91 military prosecutor then referred to opinion, coming after an ex- 1967, doctor’s assessment from with both tremely long hypo- and convoluted reaching the “same common sense doctors simply thetical was that “there is a appellant. assessment” of probability that” be would complete society by record of upon continuing Based this threat violence; ease, committing criminal acts of admitting the error in we find testimony appel- did not affect (4) Coons’s testimony Dr. Coons’s was effective- right sentencing lant’s substantial to a fair ly rebutted and refuted Dr. Cun- hearing ningham, only because who not relied State, 352, dangerousness”), 78 S.W.3d 356-57 89. See Motilla v. future overruled State, (Tex.Crim.App.2002) (reiterating grounds by that "over on other v. 111 Nev. Alford (1995). guilt whelming evidence” of is one P.2d 714 consider deciding improper ation in whether admis particular State, sion of evidence was harmful in a Leday 90. See 983 S.W.2d State, case); Sanne v. 609 S.W.2d 773-74 (Tex.Crim.App.1998). (erroneous (Tex.Crim.App.1980) admission of expert testimony by patholo opinion forensic State, Compare Cook v. gist concerning dangerousness” "future (Tex.Crim.App.1991) (given strength its capital murder trial was harmless even under character, psychiatrist’s admission of tes- constitutional harmless error rule because error; (1) timony expert was harmful testified ample prior there was evidence of defendant’s personality that defendant had “an antisocial capital criminal acts of violence and facts of (2) sociopath"; opined disorder termed murder; other evidence demonstrated defen will, "certainly psy- defendant a medical from personality” and thus "the dant’s "antisocial standpoint probability, chiatric continue to average jury would minds of an not have way represent behave and act in a does (on punish found the State's case the second very people serious threat to the within our issue) persuasive” ment less had witness's tes society”; and concluded that defendant " ” excluded) (internal timony quotation been 'extremely would be an severe' threat to " others; omitted); marks Redmen v. 108 Nev. any 'You can’t come more severe (1992) (erroneous doubt, P.2d than If I had the if I had that. least “highly mind, psychiatric admission of unreliable” any question my certainly I would dangerousness” capital telling absolutely evidence of "future you mind I feel that. murder trial was percent harmless because record hundred certain that he is and one "plentiful contained other evidence from will to be a threat no matter where continue ”). reasonably which could infer he is.’ [the factfinder] *32 specifically listed scientific materials ham’s statistical data and to impeach the during testimony, accuracy and data his but his “low risk” future danger- prediction.93 ousness who also noted that Dr. agree Coons and We that Mr. testimony his Merillat’s methodology had been criticized admissible as re- buttal by “educator-expert” both the American and evidence. Texas Associations; Psychological and dire, On voir Mr. Merillat stated that his (5) The barely State testimony mentioned Dr. is based on specialized his during closing argument
Coons knowledge and prisons Texas prison emphasize did not him violence opin- during or his his years nineteen as a ions. investigator criminal with the Special Prosecution Unit. He proposed testify particular circumstances, Given these we concerning the under-reporting of prison conclude that the in admitting error Dr. violence in official data compilations, the testimony Coons’s did not have a “substan- prison classification system, oppor- and the tial and injurious” effect upon jury’s tunities for violence prison. inside concerning deliberations the future dan- The trial gerousness judge special issue.92 allowed Mr. We therefore Merillat’s testimony, although three, granted he points four, overrule of error motion in limine to any avoid mention of five. specific instances of by misconduct other Admissibility of A.P. except inmates for one anecdote concern- Testimony Merillat’s ing an inmate’s forced starvation death which great served as “a example for un- error, point his sixth appel derreporting of violence.” lant claims that the trial court erred in admitting Merillat, the testimony of A.P. Mr. Merillat then testified before the an investigator for the Special Prosecution jury about the inmate system classification Unit, about the prison Texas classification and the under-reporting of violence in pris- system and in prison. violence Appellant on. He also described seg- administrative (1) argues that: Mr. Merillat’s testimony regation and how it is used as “punitive was irrelevant as it did appel not relate to housing” for recalcitrant inmates. Mr. (2)
lant personally, and
this witness testi
explained why
Merillat
prison
the official
already
fied
information that was
com
statistics
Cunningham
used Dr.
are not
knowledge
jurors.
mon
among
(1)
The State
completely
prison report-
reliable:
argues that Mr. Merillat’s rebuttal
ing system
testi
does not match
penal
code
mony was relevant to refute
Cunning-
behavior;94
(2)
definitions of “violent”
King
court,
noted,
92. See
271-73
In the trial
the State
"We
(harmless
(Tex.Crim.App.1997)
Cunning-
have all of these
error in erro-
statistics that Dr.
ham
right
relied
and we
hearsay
neous
have
to show
disciplinary
admission of
re-
that there's a substantial reason to believe
ports; reports "did not have a substantial or
they may
be inaccurate.”
injurious
jury’s
influence on the
decision”
concerning
dangerousness special
future
issue
example,
94. For
Mr. Merillat said that the
(1) properly
because
admitted evidence
official TDCJ
define
statistics
serious assaults
escalating pattern
showed an
disregard
only
on
injuries
staff as
those that
result
law; (2)
particularly
the offense itself was
Thus,
requiring more than first aid.
while the
brutal;
(3)
murder,
after the
the defendant
prison
official
data showed 78 serious assaults
bragged
again;
that he would kill
Special
on staff for
Prosecution Unit
emphasize
State did not
the documents dur-
prosecuted
against prison
197 assaults
staff
ing closing argument).
Similarly,
pris-
members.
there is no official
understanding
inmate-on-inmate inci-
some
that violence can and
not all incidents of
but a trial court need
prison,
does occur
reported. Finally,
are
dents of violence
testimony when the
expert
not exclude
that,
years,
in the last few
told the
*33
subject matter is within the com-
general
inmates who were
prosecuted
unit had
94
juror,
as
prehension
average
long
of the
murder
serving
capital
life sentences for
specialized
the witness has some
knowl-
felo-
both assaultive and non-assaultive
edge
topic
on the
that will “assist” the
nies.
jury.95
only
expert
It is
when the
offers
cross-examination,
On
Mr. Merillat
testimony
appreciable
no
aid that his
fails
agreed
nothing
appel-
that he knew
about
to meet
the Rule 702 standard.96 The
prose-
had never
except
lant
that his office
question under Rule 702 is not whether the
agreed
him. He
that he was not
cuted
jurors
something
subject,
know
about this
any
regarding
qualified
express
opinion
to
expert
expand
but whether the
can
their
dangerousness.”
“future
He
understanding
way.
in a relevant
inmates “had
explained
also
how death row
case,
In this
Mr. Merillat confined his
the run of the row” and could work
the
testimony
specific
to
information about the
factory when death row was in
garment
operations
prison system
of the Texas
and
agreed
the Ellis Unit. Mr. Merillat
that
productive
the
for violence or
opportunities
point
testimony
of his
was that there
expert
testimony
behavior. His
was in-
opportunities
are abundant
for inmates to
(1)
jury
to
educate the
an
tended
about
good, depending upon
either violent or
be
it
a thorough
area which
lacked
under-
their own decisions.
97
standing;
and
cast doubt
Appellant
pri
asserts
prison
Cunningham
official
data that Dr.
mary subject
testimony—
of Mr. Merillat’s
upon.
relied
Mr. Merillat acted “as an
opportunities
prison
for violence in
jury,
advisor to the
much like a consultant
—is
knowledge
ju
within the common
of the
might advise a
Because Mr.
business[.]”98
Indeed,
jurors
testimony
probably
edueator-exper-
rors.
most
have Merillat’s
See,
State,
entry
prison guards
e.g.,
on data
for homicides of
Pierce v.
777 S.W.2d
1989).
duty
(Tex.Crim.App.
414
in the line
because it
not an inmate
is
death.
See,
State,
e.g.,
Fielder v.
S.W.2d
756
(defense
(Tex.Crim.App.1988)
expert
95. See Duckett v.
testify
why
have
should
been allowed to
about
(under
(Tex.Crim.App.1990)
"spe
Rule
if
physically
sexually
a woman who was
and
knowledge
jury
cialized
will assist the
to un
stay
abused would continue to
with an abu-
derstand the evidence or will assist them to
"average lay person
sive husband because the
issue,
expert may
determine
fact in
an
be
understanding
has no basis for
the conduct of
provide
jury
allowed to
with the benefit of
a woman who endures an abusive relation-
knowledge.
prevalent
Two themes are
ship”);
advisory
see also Fed.R.Evid. com-
First,
language
within the
of the rule.
("Most
mittee note
of the literature assumes
jury
qualified
intelligently
must not be
to
experts testify only
opin-
in the form of
possible degree
par
to the best
determine the
assumption
logically
ions. The
unfounded.
expert
ticular issue without benefit of the
wit
accordingly recognizes
The rule
that an ex-
Second,
knowledge.
specialized
ness'
may give
pert
the stand
on
dissertation
meaning
_
clear
of the rule must be ob
exposition
principles
of scientific or other
rel-
expert testimony
served
The use of
must
case, leaving
evant
the trier of fact
to
expert’s
be limited to
in which
situations
facts.”).
apply them to the
knowledge
experience
on a relevant issue
(inter
Saltzburg
beyond
average juror.”)
are
that of an
98. Stephen
al„
et
Federal Rules of
omitted).
(7th ed.1998).
nal citation
Manual
Evidence
cellmate,
tise
designed
example
information
“assist” the
as an
why
702, the
judge
under Rule
trial
did
when fellow
fail
inmates
to report
in admitting
abuse his discretion
it.
acts of violence.
Point of error six is overruled.
The trial judge properly overruled these
seven,
point
error
appel
hearsay
three
objec-
confrontation
lant
trial court
by
contends that the
erred
tions.
testify
allowing
hearsay
Mr. Merillat to
Hearsay is an out-of-court
statement
information
violation of the Confrontation
person
offered for the truth of the mat-
Cla use99
and of the Texas Rules of
*34
ter asserted.100 None of these three pieces
Evidence. Out of six instances in which
testimony
of
fits that definition.
In the
appellant claims that Mr. Merillat testified
first, Mr.
not offering
Merillat was
his
information,
hearsay
to
we have found only
of
statement
the official
data
prison
compi-
three
objections
hearsay
trial
based on
lation
“78 serious staff assaults” for the
the Confrontation Clause. We will ad
truth of the matter asserted —that
there
only
dress
those
instances:
three
were 78 serious staff
in
previ-
assaults
the
(1) Appellant
on the
objected
basis of
year. Quite
ous
the reverse. Mr. Meril-
hearsay to Mr. Merillat’s statement
point
lat’s
was that
official
the
number of
that 78
staff assaults
serious
were
was
than
significantly lower
the actual
official prison
documented
the
re-
number of serious assaults and thus the
port
Cunningham
that Dr.
had used
prison
official
statistics
Dr. Cunning-
as the basis for his statistical analy-
ham used as the
his
sis;
expert opin-
basis for
second,
ion were inaccurate.101
the
In
the
(2) Appellant objected on the basis of
testimony concerning why assaults upon
hearsay
Confrontation
inmates aren’t reported
by
“because
telling
Clause to Mr.
explanation
Merillat’s
person
it, they
on the
who did
are going
to
why inmate-on-inmate violence is
off[,]”
much
be
worse
Mr. Merillat did not
under-reported
nobody wants to be
—
any
a “snitch” which is the
disclose
out-of-court statement.102
“very lowest
He
form
penitentiary”;
simply explaining,
general
of life in
was
propo-
sition,
why inmates do not “snitch” on each
Appellant objected on the basis of
third,
other.
In the
the inmate who was
hearsay
inability
and an
to confront
death, appellant
beaten and starved to
and cross-examine when Mr. Meril-
story
point
lat
does not
any
cited the
of an inmate
out-of-court state-
who
had been beaten and starved
ment. There is none. Mr. Merillat
was
by
stronger,
death
gang-member
recounting
event,
an
not a verbal or writ-
Appellant’s
99.
objection
only
Confrontation Clause
of-court statement is relevant
if the trier
is based on his assertion that Mr. Merillat’s
of fact believes that
statement was
both
testimony
hearsay"
involved "testimonial
accurate,
truthful and
then the statement is
Washington,
statements. See
hearsay.
relevancy
If
Crawford
of the statement
36, 51,
U.S.
124 S.Ct.
ten statement. it,103 telling him of by eight. someone the event imply any recite or out-of-
but he did not
the trial
court statements.104 Because
Emotional Outbursts
Two Witnesses
in over-
judge did not abuse his discretion
ten,
points
of error nine and
hearsay
confronta-
ruling appellant’s
that the trial court erred
appellant claims
objections,
point
we overrule
of error
tion
for a
when
denying his motion
mistrial
seven.
Sawyer
sep
Karen Vicha and Lorna
made
error,
point
eighth
In his
during
pun
arate emotional
outbursts
testimony
Mr. Merillat’s
asserts that
case,
judge
ishment trial.
In each
the trial
Eighth
inadmissible because
appellant’s objection to the out
sustained
reliability” re-
“heightened
Amendment’s
disregard
burst and instructed
prosecutions.
murder
quirement
capital
the remarks. We conclude that the trial
any authority
fails to cite
Appellant
court did not abuse his discretion in these
increasing
admissibility requirements
rulings.
capital
sentencing
for evidence in a
murder
*35
During
testimony
Karen Vicha’s
describ-
Indeed,
trial.
some state and federal
ing
appellant
what
told her about how he
suggested
courts have
that the Confronta-
brother,
had chased and shot her
she ex-
Evidence,
Clause,
tion
the Rules of
and the
plained that
against hearsay
apply
rule
do not
with full
[Appellant]
talking
started
about—he
in capital
sentencing
force
murder
trials.105
matter,
me,
tough, you
told
express
opinion
you’re pretty
put up
We
no
on that
but
said,
reject appellant’s Eighth
good fight
gun.
we
Amendment
with that
And he
however,
testified,
preme
103. Mr. Merillat
that he
treatment of Sixth
Court's consistent
investigated
rights
capital
this case and "worked the trial of
Amendment
across
and non-
death,
alone,
capital
person responsible”
prison
unpersuasive
cases
we find
for
argument
why
knowledge
dissent’s textual
for
the Con
so he would have first-hand
of at
through
frontation Clause
extend
briefly
the events
should
least
described.
entirety
capital sentencing process,
of the
light
jury right
of the fact that the
extends
appellant objected
grue-
104. When
that "the
determination,”),
only
eligibility
as far as the
some
how
details of
some other individual
denied,
cert.
552 U.S.
128 S.Ct.
nothing
tortured
other
some
individual has
(2008);
L.Ed.2d
see also United
here,”
jury’s
presumably
do with the
decision
Johnson,
F.Supp.2d
States
1059-
401-403,
invoking
judge
Rules
the trial
sus-
(N.D.Iowa 2005) (questioning
whether
objection,
prosecutor
tained his
and the
applies
capital
Confrontation Clause
sen
moved on.
Johnson,
tencing phase); State v.
(Mo.2009) (no
583-84
abuse
discre
Fields,
105. See United States v.
483 F.3d
impact
tion to admit written victim
statement
(5th Cir.2007) ("Here we
are asked to
capital
sentencing
murder
trial over hear
right ap
decide
the confrontation
whether
Fields,
say
objections).
confrontation
plies
throughout capital
with full force
sen
explained
the Fifth Circuit
that in Woodson v.
tencing, despite the fact that it is nonexistent
Carolina,
280, 305,
North
428 U.S.
96 S.Ct.
that,
ordinary sentencing.
at
Given
(1976),
but before any questioning, she burst
Witness: It is not inappropriate.
piece
“Evil
of shit.” The defense immedi-
ately responded: “Judge
object.
object
we
Defense: I’d
Call
to the sidebar from
for a
Request
mistrial.
an instruction to
the witness.
Judge.
I’d ask that—
disregard. Call for a mistrial.” The
the jury
disregard.
to
out,
jury
moment,”
106. While the
was
defense counsel
appropriate
tion of the
it would be
explained
happened:
what had
jury.
to instruct the
The defense then asked
mistrial,
for a
based on Rule
the Fifth
We would like to note for the record that
Amendment, Sixth Amendment and the
the last comment of the witness was—was
Eighth Amendment.
made
very
with the
witness
tearful
state. What the
did
witness
was to turn in
recess,
During
the
reiterated his
chair,
directly
her
[appellant]
look
at
stated,
objection under Rule 403 and
"I think
of,
say something along
you
the lines
I hate
completely poisoned
it’s
jury,
display
the
this
making
go through
me
this. That was
emotion, something
that not even the—the
an unsolicited comment not made in re-
know,
complainants you
family
the Vicha
—
sponse
any
ques-
to
of the Government's
did,
jury’s going
I think
unfairly
the
to be
time,
tions. So at this
we would ask the
by
point
[appellant]
influenced
that
the
to
that
Court to rule that’s an inadmissible state-
get
now can’t
a fair trial.” The record re-
ment and
unfairly prejudi-
not relevant and
laughing
flects that the witness then made a
cial and we would like to ask the Court to
judge
sound. The trial
said that he would
jury
disregard
instruct the
to
comment,
the last
jury
disregard
instruct the
the
dis—
remark.
and he admonished the witness to answer
that,
prosecutor agreed
although
The
it
only
questions
the
that are asked and to "not
"spontaneous,”
response
any voluntary
and "in
to the emo-
make
statements.”
jury
the
follow
presumed
to disre-
it is
will
jury
The
is instructed
Court:
the witness
the last comment of
those instructions.111
gard
any purpose.
it for
and not consider
Appellant
upon
relies
Stahl v. State112
mistrial,
ask for a
You
Defense:
I’d
judge’s
claim that the
instruction to
for his
Honor.
disregard
spontaneous
the
outbursts could
Court: That’s denied.
their
effect and
prejudicial
not have cured
Lorna—
State:
with
those outbursts must have interfered
sorry,
sorry.
I’m
I’m
Witness:
But Stahl was decided
jury’s
the
verdict.
testimony then
And the
continued.
misconduct,
prosecutorial
the basis of
outbursts,
argues that
these
Appellant
merely
not
the witness’s emotional out-
individually
collectively, unfairly
influ-
Stahl,
prosecutor
called the
burst.
jury
enced the
and that influence could
stand,
knowing
victim’s mother to
disregard.
be limited
an instruction to
outbursts,
prone
she was
to emotional
identify
photograph
asked her to
of her
judge’s
A trial
denial of a mo
son.113 She burst
into tears and
dead
for mistrial
is reviewed under an
tion
“Oh,
yelled,
my god. My baby. My
standard,108
abuse of discretion
and his
May
May
he rest
in hell.
God....
ruling
upheld
must be
if it was within the
Oh, my baby.”114
judge
burn in hell.
The
disagreement.109
zone of reasonable
We
disregard,
but the
instructed
an
bystand
have held that
outburst from a
prosecutor
impact by
“exacerbated” the
“which
er or witness
interferes with the
repeatedly referring to the incident in clos-
proceedings
normal
of a trial will not re
ing argument.115
prosecutor’s
“delib-
sult
reversible error unless the defen
conduct,
“persistent”
erate” and
“in direct
that a
probability
dant
reasonable
shows
prior
rulings by
contravention of
the conduct interfered with
[exists]
judge”
impermissibly
indicated “a desire to
jury’s
verdict.”110 In the context of
Indeed,
outbursts,
sway
jury.”116
trial
court of
judge’s
such
instruc
disregard
appeals
suggested
pros-
had
that the Stahl
generally
tions
are
considered
*37
impropriety
“actually
original
sufficient to cure the
because
ecutor
orchestrated the
State,
574,
grounds,
108.
(Tex.Crim.App.
Gamboa v.
296 S.W.3d
580
119.
803(2).
See
294 tion, however, peeked through specific type out the curtains and saw is not the appellant driving off his truck. Then emotion that the declarant is dominated inside, “very mad and Karen came back fear, by anger, happiness whether — —but red, angry.” Karen frustrated. She was by the declarant was still dominated Amy told that she had seen out- by emotion caused the startling event through Amy the curtains looking side when spoke.125 Appellant argues she also dressing. was that Karen’s statement was not admissible independent because there was no evi- judge The trial admitted Karen’s out-of- startling dence of the Amy court it being statement based on event— “Peeping Appellant both an utterance Tom” conduct. present excited cites impression. case, sense need examine We its to a Supreme Texas Court Richard- admissibility only Green,126 under excited utter- son v. which applied the common- An exception. ance excited utterance is a 803(2) gestae” law “res rule. But Rule statement that a startling relates to event law; changed the common the current rule condition, and it is made when the require independent does not evidence of declarant is still under the stress of excite- exciting event before judge the trial by ment caused the event or condition.123 may admit the declarant’s statements re- lating to that event.127 trial judge
Appellant contends that Kar
decides,
104(a),
under Rule
whether there
en’s statement was not admissible as an
.is sufficient evidence
prove
exciting
an
excited utterance because there was no
event,
may
and he
consider the statement
showing
“grip
that she was in the
of vio
emotion,
Here,
itself in
pain.”124
making
lent
excitement or
that decision.128
for
She
angry,
was
not excited. The critical ques-
example,
judge
the trial
could consider the
Id.;
State,
238,
803.3,
McCarty
123.
see
v.
§
257 S.W.3d
Rules of
Civil and
Evidence:
Criminal
State,
(2d ed.1993)
(Tex.Crim.App.2008);
239
v.
(stating
Zuliani
at 132-33
803(2)
that Rule
589,
(Tex.Crim.App.2003).
S.W.3d
prior
overturns
Texas law on the need
independent
startling
evidence of the
State,
486,
(Tex.
King
v.
631 S.W.2d
event);
David A. Schlueter & Robert R.
Barton,
Crim.App.1982).
Texas
Rules
Evidence
Manual
803.02[3][d],
(8th ed.2009);
§
at 852-53
see
Zuliani,
596;
Apoli
97 S.W.3d at
see also
803(2), advisory
also Fed.R.Evid.
committee
184,
(Tex.Crim.
nar v.
note; Christopher B. Mueller & Laird C.
(declarant
"animated,
App.2005)
angry,
436,
Kirkpatrick,
§
Federal Evidence
at 405-
and excited” when he made statement about
(2d ed.1994).
assault);
aggravated
see also United States v.
(4th Cir.2007)
Jennings, 496 F.3d
348-49
Moore,
128. See United States v.
791 F.2d
(statements by 13-year-old
passenger
airline
(7th Cir.1986) (stating
570-71 & n. 1
that the
"shocked, angry,
who was
and confused”
"appearance, behavior and condition of the
defendant-passenger’s groping of her inner
may
startling
declarant
that a
establish
event
thigh were admissible under
Fed.R.Evid.
Further,
may
occurred.
the declaration itself
denied,
803(2)),
cert.
552 U.S.
128 S.Ct.
occurred.”)
startling
establish that a
event
(2008).
295 (1) Amy that evidence said that she heard objections, tained State’s but allowed window, banging her sister on the kitchen general mitigation more questions about (2) run through saw Karen her bedroom whether there was anything ju- that the door, and out the saw appellant rors “could consider under the circum- driving just off before Karen returned to having stances of [appellant] found a fu- tell her that appellant peeping was in her ture danger society to might which merit evidence, bedroom window. That when a penalty.” life statement, combined with Karen’s would State, Raby v. rejected we appellant’s support finding of the startling event— claim that he is potential entitled to ask
appellant’s “Peeping Tom” conduct.129 jurors in a death penalty case about what we Because conclude that the trial court specific evidence that juror could or would did not abuse his in admitting discretion mitigating.133 consider as We stated that utterance, Karen’s excited we ap- overrule trial court does “[a] not abuse its discre- pellant’s point eleventh of error. tion by refusing to allow a defendant to ask venire members questions based on
Miscellaneous Claims peculiar facts to the (e.g. ease on trial Questions A. Limitation questions of Voir Dire particular about mitigating evi- 134 dence).” Appellant does not persuade error, In his twelfth point ap Raby us that wrongly decided. We pellant claims that the trial court erred therefore overrule point twelfth limiting by refusing his voir dire of error. question allow him to jurors about facts, mitigation value of specific in Mitigation B. The Instruction cluding childhood, evidence of a troubled mental illness or extreme emotional error, dis In his point thirteenth tress, service, community age, kindness appellant claims that the trial court erred others, ethic, work or military service. refusing jurors to instruct the they objected, The State citing v. unanimously agree need not par on what Standefer State,130 State,131 Sells v. Wingo v. ticular supports evidence an affirmative State,132and stated that these were com finding mitigation on the Appellant issue.
mitment questions. The trial judge sus-
invokes Mills v. Maryland135
support
Moore,
State,
(citing
See
his State,136 argument Segundo v. mitigating sug this same evidence.140 It never persuaded has not us can, should, jury that a or must be gested wrongly was decided. We over- Segundo any instructed not to consider nexus be point rale his thirteenth of error. mitigating tween the crime and the evi dence. Such an instruction would be nec Mitigating The Definition Evi- C. essary only jury reasonably if the would be dence likely requirement to infer a from nexus his fourteenth and fifteenth In statutory words.141 That is not the error, points appellant argues that the case. We overrule fourteenth given jury trial court should not have points and fifteenth of error. statutory mitigating definition of evi juror might dence “as evidence that a re Mitigation D. The Issue gard reducing as the defendant’s moral error, In point his sixteenth blameworthiness.”137 This same claim appellant relies on State,138 Apprendi142 Ring143 rejected in v. Roberts argue that Article 37.0711 is unconstitu appellant’s arguments persuade do not us require to overrule that He tional because it fails to the State case. also contends judge prove beyond that the trial should have instructed a reasonable doubt that jury that there need be no nexus be mitigating there are no circumstances that tween the mitigating cap evidence and the warrant a life sentence. He fails to men mandatory ital murder because the statu rejected tion that this has that claim Court definition, tory he argues, implies that cases,144 in numerous and- he to per fails there be must a connection between the suade us that our prior decisions were reduced moral blameworthiness and the mistaken.
capital
any
offense itself.
do not
We
see
error,
eighteenth point
requirement
statutory
“nexus”
in the
defi
appellant claims that the
Appellant
death-pen
nition.
relies
Tennard
Texas
v.
Penny
Dretke,139
Court,
alty
Supreme
but the
in that
scheme is unconstitutional under
case,
,145
simply chastised the Fifth Circuit for
the mitigation
because
issue sends
II
79,
(Tex.Crim.App.
Segundo,
136. 270 S.W.3d
141.
102-03
See
138. 220 S.W.3d
(Tex.Crim.App.
State,
Crim.App.2006); Perry v.
158 S.W.3d
2007).
438,
(Tex.Crim.App.2004);
446-48
Hankins v.
State,
380,
(Tex.Crim.App.2004);
132 S.W.3d
139. 542 U.S.
124 S.Ct.
Resendiz
(Tex.Crim.App.2003).
(2004).
L.Ed.2d 384
(rejecting
140. Id.
any
at
297 signals” jury, argues to the thus that rendering jurors “mixed the should not have special any finding reached on that issue been instructed on the “10-12” Rule. Al- distinguishable II Penry unreliable. be though appellant fails to mention control- cause, case, was jury given the ling precedent Court, from this we have judicially crafted nullification instruction.146 repeatedly rejected these claims.149We do Here, jury given statutorily again. so mitigation which question, mandated does twenty-first through twen In not contain a nullification instruction. No error, ty-third points appellant of argues exists, repeatedly error and we have re the statutory dangerousness” “future
jected this claim.147 appel We overrule special issue is unconstitutional because eighteenth point of lant’s error “probability,” the terms “criminal acts violence,” Challenges “society” are E. not defined. Constitutional Art. have repeatedly rejected We these
37.0711 claims,150and, although counsel suggests error, In point his seventeenth that we should this precedent, revisit we contends that appellant the Texas death- to do decline so. penalty gives statute too much discretion and therefore permits arbitrary twenty-fourth In his point of inconsistent of the application ultimate error, appellant contends that the statuto penalty. repeatedly rejected We have this ry “future dangerousness” special issue vi persuade claim and does not us the Eighth olates Amendment because no fact, prior to overrule these In eases.148 can reliably predict one whether another he fails mention them. will person commit acts of violence arbitrary future and this therefore is an his nineteenth and twentieth error, factor. dangerousness” ag The “future point appellant argues that jurors gravating should have factor been recognized been instructed on the has Supreme properly narrowing of a so Court as consequences hung jury they immediately jury’s if stop deliberating would consideration ensure individu juror single recently voted favor on alized sentencing years as two an that required unanimity. ago issue He also in Kennedy v. Louisiana.151 Although 797-99, State, (Tex.Crim.App.2000); 146. Id. at 121 1910. S.Ct. Chamberlain v. 230, (Tex.Crim.App.1999); 998 S.W.2d 238 See, State, 77, e.g., 147. 232 Saldano v. S.W.3d State, 482, (Tex. McFarland S.W.2d v. 928 519 State, (Tex.Crim.App.2007); 107 Scheanette v. Crim.App.1996). 503, (Tex.Crim.App.2004); 144 S.W.3d 506 State, 766, (Tex. v. Jones 119 S.W.3d 790 See, State, 491, e.g., Druery v. 225 S.W.3d Crim.App.2003). State, (Tex.Crim.App.2007); 509 Blue v. 125 491, (Tex.Crim.App.2003); S.W.3d 504-05 State, 814, 148. Escamilla v. S.W.3d 143 828 State, 693, (Tex.Crim.App.1996); S.W.2d v. 924 698 Martinez State, (Tex.Crim.App.2004); v. Turner 87 State, v. 877 S.W.2d Earhart 759, 111, (Tex.Crim.App.2002); 118 S.W.3d Shan 1994). (Tex.Crim.App. 767 State, 591, (Tex.Crim. v. 942 S.W.2d 600 non State, App.1996); Bell v. S.W.2d 938 53- 2641, 2661, 151. 554 S.Ct. U.S. 128 171 State, (Tex.Crim.App.1996); v. Lawton ("The [Supreme] L.Ed.2d 525 Court 1995). (Tex.Crim.App. S.W.2d upheld constitutionality ... aggra- has See, State, e.g., vating ranging factors from whether v. 112 S.W.3d the de- Resendiz ‘cold-blooded, pitiless (Tex.Crim.App.2003); slayer,’ 548-49 fendant was a Johnson v. State, (Tex.Crim.App. ‘perpetrator to whether the mental inflict[ed] 2002); Wright anguish physical S.W.3d before the abuse victim’s *42 298 facts; state, proves historical Evidence priate. one other only that asserts
appellant issue is dangerousness” special future dan finding a of the “future requires Oregon, that a prove by effort to mandated in his assessment gerousness a normative against developed jury. has consensus” legislature and determined “national on that penalty based the death imposing as a “appropriateness” its Questions about twenty-one factor, fails to note sen- determining a life or death in factor possible a include defendant’s other states legisla- to the be addressed tence should aggrava among dangerousness future Furthermore, of speaks the article ture. considered at the to be ting circumstances of the unrelia- psychiatric predictions, Fur a case.152 stage capital of sentencing appel- verdicts. We overrule bility of rejected this thermore, previously have we of error. twenty-fifth point lant’s by ap claim,153 persuaded we are not error, we reversible Having found no precedent that our pellant’s arguments and sen- judgment trial court’s affirm the be overruled. should tence. error, ap point In his final dangerous the “future claims that pellant J., MEYERS, except points joined violates the Texas statutory scheme ness” error 3 and pun on cruel or unusual constitutional ban KELLER, P.J., concurring filed a acknowledges, we ishment. As in which MEYERS and argument.154 opinion already rejected this have JJ., KEASLER, joined. have before that we now Appellant asserts danger “future “evidence” that the us his HERVEY, J., concurred. inaccurate, un results inquiry ousness reliable, arbitrary disproportionate KELLER, P.J., concurring filed is the cita His evidence determinations.” MEYERS, opinion which by the Texas De an article written tion to KEASLER, JJ., joined. Service,155 advocacy group an fender about scientific evi- just Rule 702 is not on row. This is inmates death represents dence: which we of “evidence” type not the technical, scientific, special- or other If finding that the “future dan can base a the trier of knowledge will assist ized necessarily is an gerousness” special issue the evidence or to fact to understand determining factor to use unreliable issue, qual- a fact in a witness appro- determine a life or death sentence whether State, See, death,’ e.g., v. 862 S.W.2d McBride the defendant ‘would to whether State, (Tex.Crim.App.1993); that would v. criminal acts of violence 611 Joiner commit ") society.' continuing threat to (Tex.Crim.App.1992). constitute 825 S.W.2d omitted; (internal citations some internal omitted). quotation marks State, S.W.2d Anderson v. 154. See (Tex.Crim.App.1996); also see Cantu 509-10 Rocky L. Pil- R. Sorensen & 152. Jonathan (Tex.Crim.App. grim, Criminology: An Actuarial Risk Assess- 1997). by Capital Murder De- ViolencePosed ment of fendants, Criminology J.Crim. & Service, Deadly Specula- 155. Texas Defender ("The (2000) goal incapacitating dan- Capital Misleading Juries with Texas tion: twenty-one gerous prompted states offenders Dangerousness, Future False Predictions potential for future to include a defendant's (2004). among aggravating circum- 47-48 violence may jurors be directed to consider stances decision.”). reaching punishment before skill, expert by ified as an knowledge, testimony encompasses a field outside experience, training, may or education of the hard sciences is admissible if: testify thereto in opinion the form of an expertise one, field of legitimate is a *43 or otherwise.1 (2) the subject matter expert’s of the testi- mony field, is within the recognized scope of the expert We Nenno that and testi- (3) the mony expert’s can be of the variety, testimony properly “nonscientific” relies that, event, upon in any but it might principles not be utilizes the involved and/or rigid fruitful to draw “a in the distinction be- field.11 science, sciences, tween ‘hard’ ‘soft’ or non- observed, As the Court has Dr. Coons is testimony” scientific because the “distinc- a psychiatrist who has been practicing fo- tion between types various of testimony psychiatry rensic thirty-one years. He may often be blurred.”2 In Griffith, we has the competency evaluated sanity explained that future dangerousness testi- 8,000 10,000 between people, he has mony provided can be by a mental health performed approximately 150 evaluations expert expert’s “specialized based of future dangerousness, and he has testi- experience.”3 education and fied in approximately fifty cases. As the Rule 702 was meant to “relax the tradi- acknowledges, Court the record further tional barriers to opinion testimony.”4 psychiatric shows that principles are com- away rule steered Frye’s5 courts from monly used in the civil commitment con- “general acceptance” standard6 toward de- text to determine person poses whether a termining whether the expert’s testimony a danger to himself or others. I would helpful would be to the trier of fact.7 For add that the record also shows the follow- fact, evidence to be helpful to the trier of it First, ing: while clinical practice ais rela- reliable, must be reliability but need not tively part work, small of Dr. he Coons’s always be measured rigor with the that is 3,000 has Second, treated over patients. applied to the hard sciences.8 The reliabil- Dr. Coons journals subscribes to two ity inquiry is “a flexible one.”9 And even psychiatry, goes forensic to annual meet- if subject “the matter is within the com- ings, and has lectured on forensic psychia- prehension of the average jury,” “[i]f try School, at the University of Texas Law
witness has
special
some
knowledge or
attorney associations,
at various
and at
insight
additional
into the field that would
continuing legal education seminars.
be helpful, then the expert can assist the
trier of fact to understand the evidence or With respect
assessing
danger-
future
ousness,
determine a fact in
Expert
issue.”10
Dr. Coons’s educational baek-
added).
1.
Daubert,
(emphasis
Tex.R. Evid. 702
589,
6.
2.
v.
Nenno
970 S.W.2d
560
2786;
7.
Id. at
113 S.Ct.
v.
Williams
Crim.App.1998).
State,
(Tex.Crim.App.
895 S.W.2d
366
1994).
State,
(Tex.
3.
v.
983 S.W.2d
Griffith
Crim.App.1998).
Nenno,
8.
4.
(quoting
ground and Unit; testimony of average juror. grand jury lunsky than position in a better sister; incoming at trial: explained mother and As Dr. Coons any county jail; specific there’s mail from the outgoing know that I don’t measure, um, other than Hodges.12 Ralph rule or external from Dr. report and a that, is—is you experience know say always uses explained Coons just matters. It’s in these important dangerous- evaluating the same factors to a jail you talk you go to like twenty so for at least ness and has done they say, So and officer corrections years. *44 just I know Why? dangerous. so is at trial —Dr. Coons testi- The evidence are, they’ve things that or some they a psychiatry that forensic is mony Uh, they’ve had said, —shows whatever. or field, predicting future dan- legitimate that psychia- Forensic with that. experience field, scope of that gerousness is within with however experience have had trists using experience education and that they’ve seen or cases many people a dangerousness proper future is assess they develop And an they’ve dealt with. involved in the application principles of the in- knowledge and body of experiential no Notably, appellant presented has them field. approach helps formation contrary. The faults evidence to the Court make their decisions. “books, to cite arti- failing Dr. for Coons assessment, his Dr. Coons making cles, psy- other forensic journals, or even variety a information from upon relied who in this area” to practice chiatrists interview with Lorna Sue sources: an ac- methodology, while substantiate vital statistics death certificate Sawyer; a genuine “a knowledging that Dr. Coons is Coble; note from a Arthur regarding lengthy with a medi- psychiatrist forensic investigator prose- with the senior criminal But did not intro- cal career.”13 office; summary from a narrative cutor’s “books, articles, journals, or even any duce Diego regarding Hospital the Naval at San that, testify psychiatrists” to other forensic Griffith, Clay report from appellant; Dr. contrary testimony, to Dr. Coons’s M.D.; by the prepared prosecu- a timeline method of evalu- experience-based Coons’s office; military personnel appellant’s tor’s inappropri- future is records; prior ating dangerousness testimony from Mary Ivey, and Dr. ate.14 Grigson, trial from Dr. op. Hodges diagnosed appellant age fif- 13. Court's at 277. at
12.Dr. having sociopathic personality “a dis- teen as course, party pre- the fact that neither Of According turbance of the dissocial order.” articles, "books, any journals” at or sented diagnosis Hodges, for an to Dr. such a is citing prevented from trial has not the Court who "little concern about oth- individual has though types Even of sources. those grati- "who are concerned about ... ers” and rely upon expressly those Court does not regard fying their own wishes with little proposition Dr. for the Coons’s sources they money pain cost in terms of methodology inappropriate, the court im- is Hodges fur- inflict on others.” Dr. testified suggest plicitly upon relies them to that there diagnosis involves “extreme self- ther that this body that Dr. of literature substantial centeredness," "basically un- someone who is have relied in his testimo- Coons should well-being caring welfare or of oth- about the ny. the Court to be I find such reliance Hodges ers.” Dr. testified that a later revi- ap- in inappropriate, absent some indication changed the name of sion of the DSM manual pellate opinions that these sources have been pro- hearing, to "conduct disorder” and disorder for the in an adversarial considered age concurring opinion diagnosis anyone expressed my under hibited the reasons 26, 32-37 eighteen. v. Hernandez the trial court I would hold that did testimony. Coons’s I admitting
err judgment. concur in the Court’s
therefore URANGA, III, Appellant,
John
The STATE Texas.
No. PD-0385-08. *45 Appeals
Court of Criminal Texas.
Nov. (Keller, P.J., (Tex.Crim.App.2003) considering concur- cake and eats it too: the exis- ring). Judge But even if one adhered to Keas- tence this literature off-the-record to find appellate view that an ler's court is free that Dr. Coons has failed to offer sufficient materials, proof legitimate, methodology consider such see id. at 43-52 but J., (Keasler, dissenting), considering the Court fails to of these materi- contents they comprehensively light approve consider issue in als to determine whether of his methodology. materials it So the its cites. Court has notes to 2000 amendments Psy- American awarded the which he was report noted military medical (APA) award for chological Association “lifelong maladjustment” appellant’s in to research distinguished contributions thought rage when jealous violent for his Both awards were public policy. with having affair an that his fiancée predict factors that concerning research Significantly, else. someone capi- in and his research during prison its violence reports two to see these asked among He is also sentencing. Dr. tal deliberations; not ask to see it did 2,000-3,000 as a Fel- elected psychologists held We have often report. Coons’s 155,000 mem- the APA out of the “will low of erroneously admitting evidence significant num- published He has when other such bers. in reversal not result studies articles. objection, peer-reviewed ber of without was received evidence testified, pres- slide He with a PowerPoint complained-of or after the either before illustrate,83 violence about the Hodges Dr. entation to Although neither ruling.”82 factors that he uses to opined risk assessment military specifically doctor nor the dangerous- probability of future 2008 assess probability whether there was on are on prison. His factors based acts of future ness would commit well prisons, from as violence, medical as- research data psychiatric and their scholarly writings. He other research and character for vio- sessment of “scientific,” is Dr. how his research remarkably explained similar to that of lence is subjective: “It’s not replicable, and less Coons. my gut feeling something. on about based Furthermore, testimony was Dr. Coons’s me. on what the data tells And It’s based by appellant’s expert, rebutted and refuted so, accurate. It’s reliable.” it’s Cunningham, psychol- a forensic Dr. Mark studies, the various Cunningham explaining is not a After Although Dr. ogist. data, analysis, Cunning- doctor, and statistical he did win the 2005 Texas medical appellant fell within ham concluded that award for his out- Psychology Association and, category.84 He in the lowest risk-of-violence to science standing contribution witness, degree that record will limit the to and after factor have used both before courts testimony tailor his to serve a which he can determining expert whether testi- Daubert in Then, too, independent party’s interests. mony sufficiently admitted is reliable to be carries its own indicia of reliabili- research testify experts 'proposing are "Whether conducted, speak, ty, in the as it is so directly growing naturally out of matters normally and must usual course of business independent they have conducted research satisfy variety attract of standards to fund- they developed litigation, have or whether