*1 in his remain The asserts FIELDS, Appellant, ground prosecutor error that Douglas
ing Mark during closing improper remarks made phase. prose The argument penalty Texas, Appellee. The STATE cutor stated: 64519. No. “Now, people say after we all have heard hearing reading newspaper or some- Appeals of Texas. Criminal crime such as thing on the radio about a 3, 1982. Feb. violence, this, crime, ‘Why an act of March Rehearing Denied something?’ a lot they people don’t do of times blame it on the courts.” objection appellant objected
The but his prosecutor continued: was overruled. The say, ‘Why don’t people “You have heard they something people, about it?’ And do they it on the say,
like sometimes blame They prosecutors courts. blame on but it people you like who sit in jury box that set It is these sentences. up through, up is not are —it —we
prosecutor through. I am That burden of
prosecuting my is off of shoulders. now, you
burden is on I would like but you you to understand that are now in position being ‘they’, people those
who something have to do with the crimi- justice
nal system country. in this And you would like for to be able to leave today you courtroom when have set sentence, your they knowing that something done' about it.” Appellant improper contends that it was an plea for injected law enforcement and facts
outside the
record.
in Burns
(Tex.Cr.App.1977)
Charles Paul Falls, only, appellant. Wichita for Timothy Eyssen, Atty., D. Dist. Wichita Falls, Huttash, Austin, Atty., Robert State’s for the State.
OPINION
ROBERTS, Judge. appeal
This is an from a conviction Penal capital murder as defined V.T.C.A. briefly. examine him I did not with Code, 19.03(a)(3). finding After See. paper at that time. I left some him guilty, “yes” answered to complete. for him tests special the first two issues submitted under 37.071(b), Art. Punishment V.A.C.C.P. he “Q him that you at time tell Did assessed at death. you, didn’t talk with didn’t you? with have to discuss this was convicted murder- *3 Brown, estranged tests ing Linda the wife of left the “A I remember. I don’t day I went James the Wichita Falls and the next Officer Brown of with him He Department, back, had them. April Police 1975. The and he not done well, if stating a note single gunshot deceased died a wound. left me of that — you. like I can read it to proof you would showed that Officer Brown tests, doing the says, It T don’t mind appellant hired the murder to commit the I I have arrested since been challenge not but does $400. jury trial court to declare a mistrial. The court granted the request. made ferring to an ris was during prosecutor’s questions appellant’s mistrial over may appellant guilty had been began. This trial ment Tomlison, psychiatrist. and on evidence Leon the On “Q On Outside the “A “Q Yes. psychological 1976. On May sufficiency was successfully chosen. January June Morris, stage have to evaluation, Prior to the time that advise have to talk to me? IDid January 21,1977, questioned On consisted of the the appellant. selected, proceeded given second trial counsel State’s 21, 1976, May 11, 1976, of the the Defendant presence advise 18, 1977, inadmissible talk to of this trial the State’s psychologist, examination was to was arrested on appellant’s the evidence. the trial court declared Mr. charged. case-in-chief, objected about 10, 1976, jury to a normal jury him that elicited appellant concerning you? (sic) Morris, began. a third trial At that after three any warnings testimony selection for oral jury objection. and asked the At that testimony he you This time he did one of conclusion, statement point, found he didn’t Dr. Dr. selection January did this did punish- began. jurors Mor- Jack only you the Dr. the not do: re- he “A The “Q “Q “A I believe I “Q [*] the tests? that That John tests. ley, told both April they come this this first. I left not to this py to the Defense information and I told Mark Did ney’s requested any tests. er have day before So, will have Can not, Therefore, any evaluations I told him the first time. time, the Defendant’s you you did but he did day you tell was what date? [*] office, 16th, 1976, Douglas Martin of the district consider the tests I talked examination, testing I told him tell Mr. Fields to talk I he had not done of them them that did. to do this up with for me to I’m not have to I do picked [*] and talked that lied to at attorney before Fields, it, sorry. I was but before I to April not don’t might be so I did [*] the my that I had been that you I would attorney, and I if postponed. trust time that many participate 15th, Mark they had lawyer about know note examination, might first at later, whether [*] to Mr. Bai- any of talk with Mr. any time anything tell that, the relevant up Fields.’ wheth- day or times. do. I attor- if result doing make [*] with hap- him, any day the nоt At or evidence “A Yes. could be used The first time that I saw him himof 15th, April him? 1976. I talked dards, very likely he is to encounter “A I I don’t remember for sure whether or did not. rules difficulty with and laws very likely be in trouble over and “Q say you You cannot did? over and over. “A I say I cannot that did. I do remem- ber discussing with attorney at [*] [*] [*] [*] [*] [*] the time. Doctor, “Q opinion as to you do have an “Q present? Was he whether this Defendant is likely criminal of vio- to commit acts “A No. “Q [*] And [*] you examination and evaluation made [*] of Mark [*] [*] Douglas [*] “A tute a lence in the future that will would continuing say he threat very likely society? consti- to.” Fields was done direction testified, Dr. After Morris Dr. Tomlison *4 is that correct? presence was of the questioned outside jury: Yes, sir, “A Judge Kirk. Tomlison, “Q you, the di- Dr. did under “Q request you Did Mr. Fields ever rections of Mark see come and talk with him? Fields, Douglas in Defendant No, “A he did not.” this ease? Upon testimony, the conclusion of this Yes, I “A did. appellant’s objected attorney to allow- “Q you you Do when recall first saw ing testify. Dr. Morris to further basis The him? objection of the appellant was that the had 10th,
not been warned that he did not have to “A I saw him on June the tests, talk participate to Dr. Morris or in the “Q many How times thereafter? and that he had not been warned that “A Just the one time. results of the tests could be evi- used as “Q right, sir, you, to the All did dence him. trial The court over- County time —he was in Wichita objection. ruled the jail at that time? returned, When the was Dr. Morris County jail. “A He was in Wichita asked then about results of his “Q you Prior to the time that talked tests: him, with he you did advise him that “Q you diagnostic Do have a impression you? did not have talk with this Defendant? “A No. Yes, “A certainly, do. diagnosis His “Q you Did advise him that the results personality anti-social disorder. your in examination could be used “Q Generally, can you lay tell us in were against him if he evidence terms.what the anti-social personali- tried for offense? ty disorder means? “A Not I remember. “A Generally speaking, refers appellant’s attorney then made the The criminal kind of This orientation. objection testimony same to Dr. Tomlison’s very individual has a con- weak It, as he had made to that of Dr. Morris. conscience, science or no has too, control, was overruled. poor impulse inadequate has regard for other people and his feel- jury, Before the Dr. Tomlison testified ings very are shallow. examination, upon be- based he Honor, “MR. RICHIE: is Your this appellant an lieved that “anti-social repetitious. He us told that once. describing personality” pattern. After this “THE COURT: Overruled. personality pattern, asked: the witness was (Continuing) person “A “Q you The little an has Would individual such as
regard society’s rights just likely and stan- have con- described
tinue to come into
sible because his
contact with soci-
arrest was based on less
ety
words,
illegally,
probable
in other
than
they
grounds
cause. These
of er-
would
problem
organized
with
ror attack the sufficiency of the affidavit
society?
support
request
filed
of the
for an arrest
“A
“Q Yes.
“A
[*]
come into conflict with the law?
Yes,
my opinion
question was,
he would.”
[*]
[*]
would he continue to
as I understand
[*]
[*]
[*]
it,
warrant or the affidavit. Our search of the
record in this case did not reveal either
appellant document. The introduce into evidence either the arrest
did
evidence at a
warrant.
contention before trial and
Although
pre-trial hearing,
appellant
he failed to
presented
request
raised
that either document be
At
included in the
the time of the
examinations
Drs.
appellate
reasons,
record. For these
noth-
Tomlison,
Morris and
appellant
was in
ing
presented
for review.
custody. He had bеen indicted and was
represented by an attorney.
appellant
ground
error,
one
never raised the
competence
issues of his
to contends that his confession is inadmissible
stand
sanity
trial or his
at the time of the
because it was
promises.
induced
Although
offense.
the record contains no only
any promise
evidence of
was the testi
court,
written order
the trial
both doc- mony
wife that the dis
tors testified that their examinations were
attorney
trict
told her that
at the direction of the court. Dr. Morris did not need an attorney because he would
further testified that he had been instruct-
*5
given
immunity
prosecution
from
if he
ed to determine
appellant
whether the
against
testified
his co-defendants. Even if
competent to stand trial.
promise
concluded that such a
would
appellant’s
have rendered the
confession in
The record fаils to reflect that the
admissible, there
testimony
was no
that this
appellant was advised before the examina
promise,
any,
if
was made to the defendant.
tions that he
right
had a
to remain silent
finding
appellant’s
trial court’s
any
and that
statement he made could be
by
confession was not
any promises
induced
used
punishment phase
him at the
supported by
ground
the record. The
of
of his trial.
error is overruled.
We hold that the admission of the testi-
error,
grounds
In two
of
mony of Drs. Morris and Tomlison violated contends that the trial court erred in over-
appellant’s right against
self-incrimina-
ruling
change
his motion for
of venue. On
guarantied by
tion as
the Fifth and Four-
15, 1976,
jury
June
before
was chosen
teenth Amendments to the United States
trial,
appellant’s
for the
second
the appel-
I,
Constitution and Art.
10 of the Texas
Sec.
change
lant filed a motion for
of venue.
Constitution.
erroneous admission of
properly supported by
The motion was
affi-
testimony requires
a reversal of the
County
davits of two residents of Wichita
appellant’s conviction.
Estelle v.
V.A.C.C.P.,
required by
Art. 31.03. The
Smith,
day
pre-tri-
next
another
filed
(1981);
State,
Clark
paragraph
al motion. One
of that motion
(Tex.Cr.App.1981).
S.W.2d
asked
his venue motion be carried
along
jury.
with the voir dire of the
On
grounds
error,
In nine
of
the appellant
23, 1976,
June
jury
after the
had been cho-
also contends that
there was error in the
sen,
began,
but before the trial
the trial
guilt-innocence stage of his trial. We find
change
court overruled the motion for
of
it necessary to
only
address
five of those
venue. At no time did the
file con-
State
grounds.
V.A.C.C.P.,
troverting
Art.
affidavits under
error,
grounds
appel
two
Although
31.04.
the record in this case is
lant contends that
confused,
his confession is
appear
inadmis-
it does not
that the trial
Thus,
court
ed the
hearing
ever held a
the venue
motion.
issue before us is
ruling,
motion.
not the timeliness of the trial court’s
ruling.
but the merits of the
earlier,
As noted
the appellant’s second
trial ended with the declaration of a mis-
Although
appellant’s
motion
9, 1976,
trial. On November
asking
carry
before the
the trial court to
the venue
appellant’s
began,
third trial
again
along
jury
he once
with the voir
motion
dire of the
filed a properly supported
may
right
have been a waiver of his
to have
motion for
change
granted
the motion
venue. The record does not re-
before selection of
jury, question
appeal,
flect that
not before us in this
this motion was
by
controverted
State,
it
was not waiver of his
to have the
nor does it reflect that the trial
granted
controverting
motion
absent
evi
hearing
court held a
spe-
on this motiоn or
Furthermore,
dence
the State.
the se
cifically
upon
ruled
it.
the record
lection of an unbiased
is insufficient to
does
include an order
the trial court that
satisfy
join
the State’s burden to
issue with
prior
“all the
Motions asserted in the
change
motion for
of venue. See
trials of this cause be
incorporated
herein
State,
O’Brient
(Tex.Cr.
and submitting plea jury. premises? in not “A On the that to the If agreed retrial, with the “Q Uh huh. course, would be barred. we do No, sir, “A premises. not We not agree with the appellant’s contentions. had it. driven “Q you Had in been the area?
First,
the appellant argues that his
terminated,
first
was improperly
trial
and
Yes, sir,
“A
we had been in the area.
therefore, both his second and third
“Q
you
Who were
with
time?
1.10;
trials were barred.
Art.
Art.
exactly;
“A I don’t
remember
Mr.
27.05, V.A.C.C.P.
argu
The flaw in this
in
Fields was
the car with us.
ment is that when his first
trial ended he
“Q Why
you all
were
out there?
had
yet
placed
in jeopardy.
“A In reference to his statement
that he
State,
In McElwee v.
In Barker v. after the S.Ct. over ed, that it was at all the record reflects United were numerous ease. There emphasized States times an active each of to motions filed before require pre-trial Constitution does not the State timely upon. ruled These were try specific peri- a defendant within a time three trials. addition, several Rather, appellant had od. whether a In the determination of one-year pe- during this right speedy changes defendant’s trial of counsel has depends upon balancing denied of four riod.2 length delay,
factors: the reason for therefore, the total We, do not find either right, delay, thе defendant’s assertion of his appellant’s ar- between the period of time prejudice to the defendant. trial, period of time his third rest and trials, to be case, second and third In this was arrested between his for the view of the reasons January 1976. He was indicted on excessive in appellant did not January appointed delay. and had counsel We note speedy trial until represent February assert his him on After addition, day his third trial. change February of counsel on several before alleged that has not pre-trial beginning were note that the motions filed *8 delay. prejudiced by the March 5. These motions were heard and he was Although does not reflect when the the record a 2. 1. The does not claim that there was change place, counsel right speedy we note that trial under took violation of his to a trial during appеllant’s 32A.02, trial was different the third state law. See Art. V.A.C.C.P. attorneys filed the who had from of the pre-trial motions. various against hearing punishment. him at the on appel- For these reasons hold that the lant Supreme has not been denied right his to a The said: Court speedy guarantied trial as by the Sixth respondent questioned “.. . was That Amendment to the United States Constitu- by psychiatrist designated by the trial tion. court to competency conduct a neutral examination, by police rather than offi Because the trial court erred in overrul- cer, informant, government prosecut ing appellant’s change motion for ing attorney, is immaterial. When Dr. venue, admitting testimony and erred in Grigson beyond simply reporting went to punish- Drs. Morris and Tomlison at the competence the court on the issue of trial, stage ment of the we re- prosecution penal testified at the fоr the verse re- judgment conviction and ty phase crucial issue of respon on the mand for a new trial. dangerousness, dent’s future his role changed essentially
MeCORMICK,
and became
like that
Judge, concurring.
of an agent
recounting
of the State
un
Smith,
454,
Estelle v.
post-arrest
warned
made in a
statements
S.Ct.
a Texas
During
psychiatric
setting.
custodial
.capital
murder defendant was examined
evaluation,
respondent assuredly was
psychiatrist
who had been
ordered
phase
adversary sys
‘faced
of the
with a
trial
to evaluate the
court
defendant’s com-
presence
tem’
in the
and was ‘not
of [a]
petency to stand trial. At the
time of
personf acting solely in his interest.’ Id.
]
examination, the defendant had been indict-
at
16 L.Ed.2d
[384 U.S.]
attorney
ed
been appointed
and an
Ops.2d237,
723 impor opinion danger- would lead to an rule. The other two factors become on future ousness violated the defendant’s Sixth only purpose tant when the does not favor right Amendment to counsel because the retroactivity. As for prospectivity either psychiatric stage interview was a critical of criteria, purpose Supreme Court proceedings. The Supreme Court did of said, only when an assessment “And right hold that counsel had a to be upon the reli probabilities those casts doubt present during the examination but did hold guilt past ability of the determinations of that notification is important so that a de- new rule procedural criminal cases must the attorney termination can be made U.S., retroactively.” page 447 at applied be and defendant as to whether par- or not to Therefore, 329, S.Ct., page at 100 ticipate in the examination. announced, when a new rule is it must be applied retroactively only procedure if the
Thus,
Supreme
Court overruled a
of the
upon
used casts doubt
the fairness
number of decisions of this Court. See
efficacy
finding
truth
trial or the
Livingston
State,
(Tex.Cr.App.1976),
v.
542
655
S.W.2d
States,
procedure.
In Williams v. United
933,
t.
denied 431
97
U.S.
cer
646,
1148,
2642,
401
91
Recently, Louisiana, in Brown v. inter- psychiatric evidence adduced in the view could be used him. Never principles discussed the held that the defendant retroactivity. before had The Court held that three attorney psy- factors must receive notice before a (1) purpose should be considered: rule; (2) dangerousness new extent chiatric interview on the is- of reliance law fact, rule, (3) enforcement on the in numerous old sue could be held. rejected effect on the justice administration of cases this Court the contentions retroactivity. important proceedings The most con- in Estelle v. used trolling purpose rights. factor is the new violated a defendant’s Smith
724
State,
that Estelle v.
was retroactive
Livingston
State,
found
Smith
supra; Shippy
v.
v.
State,
supra;
Byrd
supra;
Von
v.
Wilder v.
the Fifth Amendment
issue.
as related to
State,
State,
supra,
supra.
and Gholson v.
Amend-
Battie did not address the Sixth
fact,
In
the
Supreme
United States
Court
However,
question.
ment
this Court is not
many
had denied certiorari
in
of those
other
by
bound
decisions of federal courts
cases.
the
Until
United States District
Court,
State,
Supreme
than the
Pruett v.
Estelle,
Court decision in
v.
445
Smith
F.2d
upon
(Tex.Cr.App.1970),
463
191
S.W.2d
(N.D.Tex.1977),
647
had been no
there
consideration,
compelled
disagree
I am
contrary judicial voice in Texas. That the with the conclusion reached in Battie.
rule in Estelle v.
was a new rule
Smith
Battie,
the federal court found that
explicitly recognized by the federal courts
announced no new rule of
Estelle v. Smith
as a factor in excusing the defendant from
opinion
essentially
said
that Es-
law.
contemporaneous objection
the
rule. The
application
an
and exten-
telle v. Smith was
Supreme
United
a footnote
States
Court in
Arizona,
436,
sion of Miranda v.
384
86
U.S.
said, “For the
reasons stated
the Court
1602,
New
384 U.S.
S.Ct.
doctors,
Miranda
protections
ployed
Denno,
(1966),
L.Ed.2d 882
and
v.
Stovall
evading
apply, he is
Arizona should
293,
1967,
388
87
In Stovall v. district court decision in v. Estelle Smith 18 L.Ed.2d was announced December 1977. The affirmed a death sentence specif- ically question interview here in held that and the trial the rule in Wade would not Therefore, applied be occurred before either. since retroactively but ap- would be plied only also, applied Estelle v. prospectively. Smith should be retro- Adams Illinois, actively, I would not reverse ground. conviction on that
The danger of Wade-type unfairness in a lineup certainly greater much than that
presented here since the attorney has a
right to present lineup guard
against any procedure unfairness in the
whereas he has no present to be at the psychiatric fact, interview. it is much likely
less psychiatric that a interview will be unfair or compared unreliable lineup
of suspects police. conducted I am
not convinced that the lack of notice to the