*1 future means is in-
clined to commit future acts of violence that LAGRONE, Appellant, Edward Lewis puts society or members thereof risk. v. “Society” presents challenge because the Texas, Appellee. The STATE of
term in Texas has been held to include free
No. 71731.
citizens well as
v.
inmates.
Jones
(Tex.Cr.App.1992),
Texas,
Appeals
Court of Criminal
113 S.Ct.
En Banc.
(1993). However,
only Penry free citizens. (Tex.Cr.App.1985). Based
upon ordinary meaning, jury consid society
ers determining special free dangerousness.
issue of being This case, logical it would seem to inform the
jury society refers free citizens as prison
well as inmates. In order then for a
jury citizens, weigh the risk to free jury upon request
courts should inform the capital parole murder is defendant
ineligible many years. Such an instruc
tion is not barred constitution and
even allowed in noncapital cases.1 There
fore, it fair would be reasonable allow
such may instruction so that
make an informed decision based on accurate
information on involving a matter life versus
death.
It is for respectfully these reasons that I majority’s disposition
dissent to through
lant’s of error one four. Overstreet, many J.) 1. given senting opinion by I add that courts have the instruc- (dis- supra tions in Texas. See Rhoades
606 *4 OPINION KELLER, Judge.* In May, appellant was tried and con- victed of three counts of capital pur- murder 19.03(a)(6)(A) suant to Section of the Texas Penal Code the murder of more than one person in the same criminal transaction.1 19.03(a)(6)(A) (Ver- § Tex. Penal Code Ann. 1993). non’s answered the statuto- rily required special issues submitted under Article 37.071 the Texas Code of Criminal Procedure in a manner consistent im- posing the death penalty.2 Tex.Code Crim. 37.071(b) (Vernon’s 1990). art. Pro. Ac- Ann. cordingly, the trial court followed its statuto- ry mandate to sentence to death. *5 37.071(e) (Ver- art. Tex.Code Crim. Pro. Ann. 1990). non’s Appeal to court this is automat- 37.071(h) ic. art. Crim. Pro. Ann. TexCode (Vernon’s 1990). Butcher, Harris, Allan K. William S. Fort Appellant twenty-six points error, raises or Worth, appellant. for challenge sufficiency but does the the Conder, guilt-innocence pun- evidence at Atty., Steven Dist. either the W. Assist. Fort Worth, Paul, Austin, stage Atty., ishment Matthew State’s the trial. Because several fact-intensive, appellant’s points for the state. are how- ever, proceed will with a brief recitation pertinent Our of the facts. review briefs * opinion prepared by Thus, Judge mitigation special Most of this was Bill issue for all cases. prior Legislature essentially proce- White to his retirement from the Court. the abolished the dichotomy dural the created 1991 session 19.03(a)(6)(A) Article 1. of the 1993 Texas Code of by eliminating procedural the central difference Criminal Procedure has been recodified under pre post capital between and sentenc- 19.03(a)(7)(A) Article of the 1995 Code. ing mandatoiy statutory submission —the mitigation special issue. The 1990 version of capital sentencing procedure 2. Texas has under- 37.071, however, Article had still some minor gone important changes during several inter- the 1991, procedural seq., the et differences with capital im the between commission of the instant Legislature the versions statute which May handing offense in of 1991 and the down of (1) by formally splitting resolved the statute: 1991, 1, opinion. September Legisla- On the arising Article 37.071 cases controlled all after statutory mitigation special ture added a issue 1, 1991; (2) September and Article 37.0711 consideration, jury's specifically pro- but governed 1, arising September all cases before procedure vided that this new was not to be 1991. is still This basic framework intact to- applied retroactively arising cases before —to day. September Legislature The 1991. in effect keeping complex In with these somewhat separate capital sentencing proce- created two guidelines, the was sentenced under defendant dures: defendants whose crime was commit- controlling May, sentencing. law at his prior September ted 1991 were to sen- be sentencing May capital Texas law tenced under the 1990 version of Article 37.071 required the defendant be sentenced under the issue; statutory mitigation special without a and Although version Article 37.071. (2) defendants whose crime was committed after would be defendant now sentenced under Article September 1991 were to be sentenced under 37.0711, Article did not become effective 37.0711 seq., et. versions Article 37.071 sentencing. until fore, after defendant’s There- statutory mitigation special which includes a is- sentencing we must review the existed as it sue. May under the 1990 version of Article 30, 1993, however, time, August Legisla- On 37.071. thatAt Article 37.071 of the Texas again changed capital sentencing by spe- ture Code did of Criminal Procedure not contain a cifically requiring statutory statutory mitigation special the submission of a issue. abortion following ing give her dollars for the $1000 facts and record indicates Lloyd, Pamela at trial. and dollars for herself. were established $500 however, complaint. to withdraw refused May 1991, Lloyd family living was day told later and Appellant called Fort Worth. at 2004 Amanda Street the mon- he would deliver Lloyd that Pamela eight people: three Lloyd family included Thursday. ey for the abortion year-old Shakeisha homicide victims —ten aunts, great Lloyd, Shakeisha’s two Wednesday, appellant went to That same eighty-three year-old Zenobia Anderson friend, Gun Store with Winchester Lloyd, seventy-six year-old as well Caola supplying After Daniel with Anetta Daniel. of the homicidal incident— five survivors money, her to appellant asked purchase (Shakeisha’s mother), Lloyd Shakei- Pamela double-barrel, pistol-grip shotgun. purchase Lloyd siblings, Dempsey sha’s three slide-action purchased a Winchester Daniel uncle). (Shakeisha’s put in trunk of shotgun which Lloyd first met trial, Wilshire, Pamela Robert the his car. At relationship in a and the two were involved store, employee gun testified that this approximately six months. After their qualifies deadly weapon. shotgun as a however, family breakup, Lloyd main- May 80,1991, Thursday, Lloyd Pamela On appellant because he tained contact with got get a.m. to some water up around 4:00 intermittently visit the children having from the because she was kitchen home. sleeping. had left trouble After she 26, 1991, May Lloyd On Pamela noticed bathroom, somebody kitchen and entered the body changing and that that Shakeisha’s knocked at the front door and demanded getting bigger. her breasts were Because *6 Lloyds “open the door.” Shakei- one of unnatural, Lloyd seemed Pamela took this brother, Charles, identified the voice sha’s hospital for an exami- Shakeisha the local Dempsey Lloyd answered appellant’s, but nation was where she learned Shakeisha Lloyd allowing Dempsey After door. Lloyd pregnant. Pamela then contacted the he open the door and ask him what wanted police appellant’s rape daughter. her about hour, Dempsey early appellant such an shot charges, response rape police to the Lloyd shotgun. with the aforementioned Lloyd appellant’s Arlington took Pamela Dempsey Lloyd subsequently grappled with apartment she where asked sister gun. appellant over the appellant appel- to have contact her. When Following struggle, appellant went this her, Lloyd lant Pamela him how called asked Lloyd where Caola into the front bedroom Ap- he could have “messed” with Shakeisha. sleeping Appellant a was and fired shot. pellant having denied sexual relations with then went into the kitchen Zenobia where Lloyd hung up Shakeisha so Pamela the tele- Lloyd washing another was clothes and fired however, phone.' day, appellant Later that Lloyd As at- shot. Pamela and Shakeisha Lloyd tell her that he called Pamela back to hide chil- tempted to collect and the other sorry was for what he had to Shakeisha done dren, more shots were fired. Pamela several baby. and that he would take care of the lying Lloyd on the then discovered Shakeisha outrage Lloyd responded be- Pamela with face Al- floor with “half of her off.” blown appellant had Shakeisha nine cause molested Lloyd pled mercy, ap- though Dempsey times, press charges. and threatened to pellant him a second time before leav- shot day, appel- contacted The next Shakeisha Lloyd go ing. Dempsey was still able to next Lloyd beeper, via his and Pamela used lant emergency assistance door and call for “911” opportunity to inform him that Shakeisha despite his severe wounds. approx- cost wanted an abortion which would incident, the responded Following the above homicidal imately Appellant dollars. $895 County Office Lloyd Medical Examiner’s by assuring he Tarrant Pamela Lloyd, autopsies Zenobia money. Wednesday, performed on Caola provide the abortion On Anderson, 29, 1991, Lloyd. The medi- get May appellant attempted to Shakeisha cause of death Lloyd drop complaint cal examiner determined the Pamela her offer- 3, 1991, for all three of the deceased victims to be a March On Officer Keith McGuire single Lloyd Department homicidal suf- incident. Caola the Fort Worth Police wit- entry by shotgun fered a an wound caused flagging nessed down cars a the anterior portion going her neck drug manner consistent dealing. with The through the left side of her throat. also She subsequently officer observed toss injury had a right defensive to her hand pouch a ground black which was later resulting in the dismemberment her index determined a quantity to contain of crack finger, right which was consistent with her cocaine. being gun hand in front of her face when the 14,1990, Greg On October Officer Aberna- shot was fired. Zenobia had an Anderson thy department of the Fort Worth Police was entry by shotgun a wound caused to the back investigation in a poten- involved routine Lloyd entry of her neck. had an Shakeisha drug trafficking, tial tip and received a about by shotgun wound caused to her left cheek drug from local trafficker one of the sus- corresponding just and a exit wound below pects. tip Abernathy The led Officer to a right jaw the rim of the mandible bone. She nearby apartment complex where he found a injury hand, right causing also had to her matching suspected drug man trafficker’s ring finger. total dismemberment her description appellant. being con- After — The medical examiner determined there were police, appellant up fronted ran some likely gun
most
two
shots.
attempted
jettison
stairs and
bag.
brown
addition,
the medical examiner recov-
police laboratory
later confirmed that
fetus,
ered a four-to-five month-old female
bag
quantity
contained a
of cocaine.
which
preserved
DNA
blood and
23, 1986,
year-old
February
On
fifteen
sis-
testing.
Eisenberg,
Dr. Arthur
a forensic
returning
nearby
ters
were
home from
pathologist, compared appellant’s
sam-
blood
Queen.
Dairy
they
crossing
While
were
ples with those recovered from Shakeisha
grounds
school,
elementary
appel-
of a local
Lloyd,
testing
and conducted DNA
to estab-
approached
lant
them and threatened them
upon
paternity.3
lish
Based
examina-
gun.
Appellant
took the sisters’ mon-
tion,
Eisenberg
Dr.
concluded that
ey,
clothing,
forced them to
their
remove
tied
paternity
Lloyd’s
lant’s
of Shakeisha
unborn
up,
proceeded
girl
them
to force one
*7
certain;
that,
child was 99.999%
and testified
perform oral
Af-
sex and molest her sister.
exception
having
of
an identical twin
threatening
girls’
ter
to burn down the
home
brother, appellant was the father of that
if they
police,
girls
went to the
did not
child.
contact
authorities at that time.
During
trial,
punishment phase
appellant’s points
We will address each of
moreover,
produced
fairly impos-
the State
chronological
of
in
error
order unless other-
ing catalog
punishment
of relevant
evidence.
wise noted.
First,
ap-
introduced
evidence that
pellant had been convicted of murder in
I.
twenty-year
and received a
sentence. The
produced
reputation
eighteenth points
State also
In
numerous
his first four and
of
error, appellant
argues
witnesses who testified that
had a
that the trial court
reputation
being peaceable
bad
restricting
questioning
and law-
erred
Finally,
abiding.
evi- of
of
jury
State introduced
five members
venire concern-
ing
dence of several extraneous offenses commit-
understanding
“proba-
their
of the term
by appellant.
bility.”
ted
Appellant’s
arguments
center
testing
appellant's
begin questioning
3. The DNA
revealed that
DNA
allowed the
one
defense
of
regions
eight
was included in all
where chromo-
jurors
understanding
his
of the term
about
somes were matched.
“probability.”
any way
weAs
are not aware of
jurisprudence imposes timing
that our
restric-
error,
eighteenth point
4.
In
at-
judges’
tions on trial
discretion to limit voir dire
tempts
points
draw distinction between
examination,
are
valid
we
unable to discern a
through
eigh-
error one
four
and
appellant's proposed distinction. Ac-
basis for
judge
already
teen on the basis that the trial
had
cap-
in
(endorsing
that trial court
Woolridge
proposition
v.
this Court’s decision
around
prohibit
discretion
(Tex.Cr.App.1992).
proceedings
ital
has
trial court’s re
Woolridge, we held that the
of undefined terms
voir dire on definitions
question
Otherwise,
allow a defendant
fusal
dire examination
charge).
“voir
understanding
regarding his
veniremember
length
time if
take an unreasonable
could
of the term “reasonable doubt” constituted
different
attorneys
both sides selected
on
However,
Woolridge
reversible error.
charge
contemplated
and
throughout a
words
distinguished
non-capi
specifically
Court
its
juror what
those
prospective
each
asked
holding
capital
trial
from the
trial context
tal
Wheatfall,
at
882 S.W.2d
835.
words meant.”
capital
dire
trials
because voir
examination
through
first
fourth
Accordingly, appellant’s
individual,
is conducted on an
rather
than
points
eighteenth
of error are overruled.
and
collective,
Woolridge,
basis.
827 S.W.2d
905;
Wheatfall
II.
(Tex.Cr.App.1994) (relying Woolridge de
on
through eight, ap-
points
of error five
context);
capital
trial
see also
cision
Tex.
pellant
trial court erred
contends that the
(mandat
35.17(2)
Code Crim. Proc. ANN.art.
ordering
psychiatric
him submit to State
judge
ing that
instruct the
on defi
presence
examination without the
of defense
making
further
nition
reasonable doubt—
Appellant’s arguments fall into two
counsel.
jury’s
“proba
inquiry
understanding
into
(1)
categories:
points of error five
discrete
bility”
proof in
as it relates to the burden of
alleged
and six involve
violations
special
our
issue
right against self-incrimination as con-
lant’s
Thus,
unnecessary).5
must
repetitive and
we
to the
the Fifth Amendment
tained
both
appellant’s claims under our estab
evaluate
I,
Article
United States Constitution
judicial
reviewing
lished standard
limita
Constitution;
§ 10
of the Texas
capital
tion of
voir dire.
points
eight
assert
error seven
generally employ
We
an abuse of
appellant’s right
under the Sixth
to counsel
reviewing allega
standard
discretion
to the United States Constitu-
Amendment
improperly
tions that the trial court
restrict
1, §
tion and Article
the Texas Consti-
dire
ed voir
examination. Nunfio
by the
tution was violated
exclusion
de-
(Tex.Cr.App.1991);
psychiatric
from the State’s
fense counsel
(Tex.Cr.
State, 703
Smith v.
exam.
Moreover,
App.1985).
cap
our
of our
review
dispose
effectively,
To
of these issues
jurisprudence
ital
reveals that we have deter
begin with
of the factual
must
a recitation
mined that a trial court
its
does not abuse
applicable
circumstances
these
by refusing
permit
discretion
counsel to
15, 1993, appellant filed a
error. On March
question
regarding
a veniremember
his defi
*8
seeking independent expert
motion
witnesses
“probability.”
nition of the term
Milton
psychiatry
psychology.
in
the areas
and
(Tex.Cr.App.1980),
motion,
support
appellant alleged
In
of this
3022, 69
signifi-
a
(1981)
that his
condition would be
mental
(finding
no
dis
L.Ed.2d
abuse of
phase,
during
punishment
and
cant factor
cretion where trial court refused voir dire
from
mental disor-
that he suffered
“serious
terms
questioning on definitions of
deliber
granted appellant’s
court
ders.” The trial
ately, probability, and criminal acts of vio
by
as
case);
appointing Dr. Richard Schmitt
capital
also
v. motion
lence in a
see Wheatfall
expert.
(Tex.Cr.App.1994) appellant’s mental
doubt,
trial,
eighteen
to
on
of reasonable
cordingly, we
of error
ble
the case
will address
along
through
grand
points
proof,
by
four.
of error one
return
indictment
burden
innocence,
opinion.
jury, presumption of
and
(Vernon's
35.17(2)
Tex.Code Crim. Proc. Ann. art.
5.
defendant,
Then,
the State or
on demand of
1995)
ours)
(Emphasis
provides:
juror
to
each
on voir
either is entitled
examine
case,
capital felony
the State
"In a
in which
individually
apart
the entire
dire
from
penalty,
pro-
the court shall
seeks
death
question
juror
panel,
may
further
jurors
pound
panel
prospective
to the entire
by
principles propounded
the court."
questions concerning
principles
applica-
response,
subsequent
the State filed
to
by
defendant
submit to an examination
requesting independent
motion
exam-
(1)
mental
expert
State’s mental
on two fronts:
of appellant
purposes
ination
of rebuttal.
right against
self-incrimination contained
requested
The
motion
State’s
also
that the
the Fifth Amendment to the United States
testimony
appellant’s
court exclude the
Constitution;
right against
self-
expert
health
if appellant
mental
failed to
I, §
incrimination
contained Article
10 of
cooperate
expert.
with the State’s
After an
opinion
the Texas Constitution. Since our
hearing,
granted
extensive
the trial court
(Tex.Cr.App.
Soria v.
presenting psychiatric testimony on his be- A. Indeed, explained half.” Id. at 53. Appellant’s psychiat- fifth the “introduction and sixth of error defense testimony directing upon attack order ric court’s based examination of material, Brady report 6. The restrictions were as follows: mines the it contain attorneys. [material] shall release counsel, notify 1. State shall the defendant’s may present 4. have Dr. Coons place in advance of the time and of the exami- presents if court the defense a mental health may pres- nation. Defendant's counsel not be *9 expert testify. to during ent the examination. The defendant expert 5. a If defense calls mental health may recess interview and consult with time, testify, report to at that Dr. Coons’ shall counsel. by be turned to the the Court. over State by any 2. shall relate Dr. Coons not manner conversations, findings, or means his conclu- Bradford, plurality 7. a of this Court held that a opinions any prosecutors sions and conditioning admissibility findings, trial court’s order agents. or Dr. Coons shall reduce his expert's dangerousness opinions writing the defense future tes- deliv- conclusions and to and timony inspec- on the defendant's submission to a state- er same to Court in-camera sponsored mental examination violative tion. Court, expressly 3. the Fifth and Sixth Amendments. We after examination Dr. Coons' Soria, report, declined to will decide whether to release the ulti- follow Soria. 933 Bradford only. If at mate conclusions the Court deter- S.W.2d 59-60 n. 21.
611
limiting the testimo
pert, and the sanction of
waiver of the
‘constitute^]
the defendant
virtually
privilege
ny
further defense witnesses is
Fifth Amendment
defendant’s
already
manner as would the
has
had
the same
the defense
worthless since
defendant’s
”
testify
(quot
testimony.
at trial.’
Id at 54
expert’s
election
of their own
the benefit
Estelle,
692,
ing
655 F.2d
701-02
Battie v.
Soria,
58-60. Our sense
933 S.W.2d at
(5th
ours);
Cir.1981))(emphasis
see also Bu
allowing
justice
criminal de
not tolerate
will
422-23,
402,
Kentucky,
v.
483
chanan
U.S.
testify through the defense ex
fendants
2906, 2917-18,
107
sponsored examination);
party
legal
capacity
Estelle
a
or non-medical
454, 468,
1866, 1876,
451
severely
efficacy
S.Ct.
68 would
limit the
of
exam-
(1981)(noting
L.Ed.2d 359
that
Moreover,
a defendant
appellant
ination.” Id.
has once
attempts
“who neither initiates nor
to intro-
again neglected
provide
any
to
us with
ratio-
evidence,
psychiatric
any
may
duce
not be
support providing
to
stringent
nale
more
con-
compelled
respond
psychiatrist
to
if his
a
I, §
protection
stitutional
under Article
10 of
against
statements can be
him in a
used
provided by
the Texas
than
Constitution
that
capital proceeding”). Accordingly, we now
Appellant’s
Sixth
Amendment.
seventh
hold
when the
defense demonstrates the
eighth points
accordingly
of error are
put
expert
intent
on
overruled.
testimony,
may
trial courts
order defendants
independent, state-sponsored
to submit to an
III.
psychiatric
prior
presen-
exam
to the actual
points
thirteen,
through
of
nine
testimony.8
expert
tation of the defense’s
alleges
appellant
that the trial court
erred
light
holding today,
of our
we find no
ways by refusing
several
to allow
devel-
violation of the
Fifth
defendant’s
Amendment
opment
testimony concerning
drug
of
rights. We also
note that
has
addiction of a
witness
and victim the
provide
any
us
failed to
with
distinction or
crime,
Lloyd.
Pamela
provides
reason that the Texas Constitution
greater protection than the Fifth Amend-
A.
Consequently,
necessary
ment.
it
not
error,
fact,
Appellant’s
point
ninth
tous
address the merits of
sixth
that the
court
asserts
erred
forbid
Appellant’s
of error.
fifth and sixth
ding
impeaching
the defense from
Pamela
points of error are overruled.
ability
recall,
Lloyd’s
perceive,
and relate
the details of
crime with evidence
her
B.
alleged drug
subsequent
use and
“withdrawal
Appellant’s
eighth points
seventh and
symptoms.”
concisely,
More
error,
hand,
question
other
the consti
drug
claims that the inchoate
use of one of
validity
excluding
tutional
defense counsel
principal
impaired
the State’s
witnesses
her
psychiatric
from the State’s
exam under the
perceptual capacity. Appellant cites two
right
guaranteed by
to counsel
the Sixth
in support
proposition
cases
of the
that a
of the
Amendment
United States Constitu
may
perceptual capacity
witness’
chal
be
I, §
tion and Article
10 of the Texas Consti
lenged by drug addiction evidence. See
previous
tution. As with the
two
Anderson v.
Tex.Crim.
error, appellant’s
groundless.
contentions are
(1912);
S.W. 281
Beland v.
86 Tex.
(Tex.
In Bennett v.
(1920).
Crim.
S.W.
Our exami
Cr.App.1989),
held
we
defendant does
nation of
cases reveals that
Court
these
possess
right
present
not
to have counsel
allow,
right
protect,
did indeed
and even
during
psychiatric
examination under ei
drug
utilize a
im
witness’
addiction as an
ther
Fifth or Sixth
Amendment. See
peachment
early
during the
tool
1900’s.
(Tex.Cr.App.),
Bennett v.
Court, however,
t.
implicitly
This
cer
(1989).
Indeed,
impeachment
Therefore, ment Pamela with evidence appel we refuse to allow from was a of her withdrawal cocaine Criminal Rule effects lant this case to circumvent *12 614 of argument authority).
violation Amendment’s Consequently, Sixth Confron- tation Clause. As discussed in our denial of appellant’s must overrule eleventh and thir- appellant’s above, point ninth of error points howev- teenth of error.
er, interpretations our of Texas of Rule 608(b) Criminal Evidence have limited the IV. drug use of alcohol and addiction evidence point fourteen, of error appellant impeachment to instances where the wit- urges that the court trial abused its discre actually ness under the influ- intoxicant’s by sustaining objection tion the State’s to a during perceptual encé window of the proper voir question posed by dire defense III-A, supra. crime. See Section Pamela Hyder Phillip counsel venireman Lee con Lloyd was not under the influence of cocaine cerning mitigating Specifically, evidence. during capital the commission of this murder. appellant complains that the trial court Accordingly, classify Lloyd’s we must Pamela by limiting abused its discretion the voir dire alleged drug usage accompanying with- Hyder regarding examination of his defini symptoms precisely type drawal of tion term “criminal of acts violence”. specific conduct evidence which Texas Rule again, appellant primarily Once bases his 608(b) prohibits. of Criminal Evidence See complaint on our Woolridge decision in Ramirez, 608(b); Tex.R.CRIM. E. 802 S.W.2d State, (Tex.Cr.App.1992) 827 900 S.W.2d (discussing prejudi- at 675-76 collateral and where this Court held that trial court’s drug impeachment). cial nature of addiction question refusal to allow a defendant The trial court not scope outside the regarding understanding veniremember excluding its discretion in specific conduct term “reasonable doubt” constituted evidence which we have determined to be Woolridge, reversible error. 827 S.W.2d at prejudicial both and collateral. Id. More- earlier, 906. As we Woolridge stated over, appellant any has failed to out pains great Court went to to exclude the in meaningful distinctions between the confron- dividualized voir dire examinations conducted tation clauses in the Federal and Texas Con- in capital proceedings holding from its relat stitutions which merit our extension ing solely question to the collective voir dire capacity broader confrontational under Arti- ing conducted in other criminal actions. I, cle Section 10 of the Texas Constitution. 905; Woolridge, 827 at see S.W.2d also appellant’s We overrule tenth and twelfth (Tex. Wheatfall points of error. Cr.App.1994) (holding limitation voir dire “deliberately” examination on definition of C. case). proper capital in points of error eleven and thir Moreover, teen, consistently upheld we have tri maintains that the trial al judges’ prohibit discretion to voir court’s omission of evidence about dire Pamela term, Lloyd’s drug deprived examination on the “criminal acts of addiction the defen capital dant of effective assistance of counsel in violence” trials. Milton v. vio See 824, 826 (Tex.Cr.App.1980), lation both United States and Texas However, appellant complete Constitutions.
ly provide authority explain fails (holding L.Ed.2d 400 no abuse dis the manner in which the trial court’s questioning actions cretion where trial court refused deprived “deliberately, proba him of effective assistance of coun on definitions of terms argument sup bility capital sel. Without substantive and criminal acts violence” authorities, porting case); adequately we cannot Battie v. S.W.2d (Tex.Cr.App.1977) (determining evaluate effective assistance trial 74(f) See (requiring denying claim. P. court not its did abuse discretion TexRApp. argument support questioning minimal regarding error un veniremember’s brief); derstanding see Kirchner v. also of term “criminal acts of vio (Tex.App. capital Antonio appeal); Woolridge, lence” in see also — San pet.) (allegation no (affirming judge’s reviewable at 905 provide supporting voir investigations fails discretion to limit dire trial, pros- and the was inadmissable capital proceedings). ment into undefined terms *13 duty to it. under no disclose ecution was permitted inquire “If into the counsel were trial, every during [capital] definition of term Moreover, even if we assume that voir would become endless.” dire Wheatfall admissible, appellant fails statement was the 829, (Tex.Cr.App. v. 882 835 S.W.2d our ex reversible error. Under to establish 1994). Accordingly, we hold that it was with law, isting the defendant bears burden appel in the court’s discretion to limit v. 819 showing materiality. Amos lant’s dire of veniremember voir examination 156, (Tex.Cr.App.1991), cert. 159-60 S.W.2d Phillip Hyder regarding Lee definition of 1959, 917, 112 118 S.Ct. Appel acts the term “criminal of violence.” (1992). An can show L.Ed.2d 561 point lant’s of error is overruled. fourteenth by prosecutor is that evidence withheld proba only “if is reasonable
material there that, bility been disclosed to had the evidence Y. defense, proceeding the outcome of sixteen, ap- In points error fifteen and Kimes, 872 would have been different.” by pellant trial court erred contends To establish a at 702. “reasonable appellant’s exculpatory for denying request out probability,” the likelihood of a different impact information contained in the victim undermine be sufficient to come must statement; by denying appellant’s mo- Id. must evaluate outcome of the trial. We tion new it shown the trial after was materiality exculpatory evidence in impact exculpato- victim statement contained Turpin light of entire record. v. ry which revealed to information was 907, (Tex.Cr.App.1980). 916 only lant after the conclusion of the trial. case, Lloyd was able to Pamela impact The victim statement did indeed con- identify based the defendant his voice Lloyd tain an Pamela that her admission six-year relationship and numerous upon incident; “mind after wandered” state- Appellant telephone conversations. contends ment the defense which believed would effec- Lloyd’s ex- statement was both Pamela tively impeach Lloyd’s Pamela identification is, culpatory sufficient to and material —that Appellant of the defendant. asserts that this n underminethe outcome of the trial. Howev- sup- it statement merits a new trial because er, temporal logical con- the statement’s ports theory Lloyd their that Pamela attempted connec- contradict text accurately incapable identifying the defen- Lloyd’s of the tion with Pamela identification dant due to her withdrawal from crack co- was, all, first of defendant. statement during episode. caine the criminal crime, days after not imme- made several diately following impor- the crime. More unequivocally have made it We tantly, Lloyd made the statement Pamela Brady Maryland, clear that under 373 personal (cid:127)response questioning about her U.S. 83 L.Ed.2d 215 S.Ct. crime, questioning to the not to reactions duty prosecutors to dis have affirmative perceptual alleged drug withdrawal about material, exculpatory close all evidence to the Therefore, Lloyd’s impairment. Pamela Kimes, parte defense. See Ex qualifies nothing as more than a statement (Tex.Cr.App.1993). Kyles also See pur- expression grief for the post-crime Whitley, 514 establishing impact on a poses of the crime’s (1995). However, pros L.Ed.2d living precisely purpose of a vic- victim — duty has turn ecution no over evidence impact statement. tim be at trial. Id. at inadmissable Additionally, other witnesses —Pamela (citing to Iness v. two Charles, Lloyd’s un- Lloyd’s III-A and Pamela (Tex.Cr.App.1980)). Section son cle, above, Dempsey Lloyd positively identified Rule of Criminal we announced that — 608(b) instant perpetrator prohibits of inchoate Evidence use has, short, failed to Appellant prior drug including use “nebulous withdraw offense. persuasion as to materi- impeachment. carry his symptoms” al See Section burden Thus, by establishing a likelihood III-A, Lloyd’s ality reasonable supra. Pamela state- Consequently, requisite against a different outcome. failed to establish “bias absolutely defense has no basis to give demand the law” with David Conner’s refusal to trial. Appellant’s mitigatory import good prison new Id. 702-08. fif- behavior. Appellant’s teenth sixteenth of error are ac- seventeenth of error cordingly overruled. overruled. VI. VII. *14 seventeen, point appel In of error nineteen, In point of error appellant ar- by lant asserts that the trial court erred gues by that trial allowing court erred refusing appellant’s challenge for cause of Coons, fully qualified psychiatrist, Dr. a to venireman who David Conner stated that he timely objection draw conclusions over about good jail could not consider behavior while dangerousness within the issue of future a prison possible mitigation or as evidence. claim, prison population. Appellant’s there- granting Our standard for chal defense’s fore, fully boils down to an assertion that a lenges for cause based on veniremembers’ competent psychiatrist qualified is to ex- 35.16(c)(2) out in attitudes is set Article opinions press regarding dangerous- future
the Code of Criminal Procedure: in prison posi- ness a context. We find this veniremember bias or “[A have] must a tion untenable. prejudice against any applica- laws upon ble the case which the is defense begin analysis by noting We our rely, entitled to either a to some as defense judgment regarding that the trial court’s ex phase of the offense for which defen- perts’ qualifications admissibility and the prosecuted, is being mitigation dant or as a expert subject testimony is to an abuse of punishment thereof or therefor.” discretion review. standard of McBride v. 35.16(c)(2)(Ver P. Ann. art. Tex.Code Crim. (Tex.Cr.App.1993), 862 607-08 S.W.2d 1995). non’s When we are asked to review a rt. denied 512 U.S. 114 S.Ct. ce challenge upon for cause a venire- based (1994); 129 Joiner L.Ed.2d 879 law, alleged against member’s bias we State, (Tex.Cr.App.1992), 825 708 must determine whether the veniremember’s 925, 113 3044, 125 509 S.Ct. prevent substantially impair beliefs (1993). case, L.Ed.2d In this the trial following him from the law set out rely profes court Dr. was able Coons’ by trial court’s required instructions and as qualifications sional Coons is medical —Dr. juror’s oath. Pierce v. specializing in psychiatry doctor who has a (Tex.Cr.App.1989), at cert. denied degree professional experi law and extensive 2603, 110 L.Ed.2d capital expert ence as an in both witness (1990). Additionally, great must show noncapital justify cases—to the admission of rulings trial deference to the court’s on chal dangerousness the contested future testimo lenges for Id. cause. qualifications ny. provided the trial These not, however, adequate The law does re court with a than basis for more jurors quire significance poten admitting testimony. attach Dr. Coons’ Cf. McBride, tially mitigating (upholding evidence. Robertson v. S.W.2d at 607-08 (Tex.Cr.App. allowing 711-12 trial court’s future dan discretion 1993). Indeed, jurors gerousness testimony psy we allow to formulate based on similar Joiner, credentials); opinions their own as to which is chiatric evidence unimpor mitigating (utilizing psychiatric and which similar evidence credentials only requires uphold Id. expert tant. “The constitution trial court’s admission of juror testimony dangerousness). that where a In believes there is relevant about future evidence, deed, mitigating juror recently upheld have a “discretion must we have give allowing psychiatrists vehicle to his or moral court” in her reasoned trial testify response Accordingly, qualifications such evidence.” Id. with similar about we hold that the court did not abuse its in McBride and Join er, by determining appellant supra. Accordingly, discretion we decline to over- EX. today; appel- turn the trial court’s discretion point overruled. lant’s nineteenth of error is twenty-one, ar- appellant point of error by overruling erred
gues that the trial court reputa- objection improper an VIII. prosecutor. Specifically, question tion twenty, alleges trial court al- complains that by admitting State’s that the trial court erred permissible to convert prosecutor lowed the 71 into evidence at exhibit numbers inquiry inquiry prohibited into reputation showing punishment proper without by asking specific bad acts whether into custody. Essentially, appellant con- chain of on information opinion was based witness’ although con- tends that the cocaine evidence by “young girls” reference provided —that properly in these two exhibits was tained girls” in the context the crime “young officers, arresting identified a 31 to un- impermissible reference constituted storage prior period month test *15 specific instance of conduct.9 See proven drugs the inadmissible. cocaine rendered specific con- (prohibiting E. 405 Tex.R.Crim. disagree. We witnesses). with character duct evidence tampering, Without evidence punishment phase of During the custody questions concerning most and care police the trial the called last several attached, go weight not of a substance testify reputation that officers v. admissibility, of the evidence. Alvarez being law-abiding peaceful and was bad. for 143, (Tex.App 147 . —Cor After officer testified on cross-examina 1993, pus pet. refused) (relying on Christi appellant, tion that he had never arrested (Tex. 229, 617 232 v. Medellin S.W.2d following testimony: State elicited Ev. Cr.App.1981)). See also Tex.R.Crim. Although you Q: have [PROSECUTOR]: 901(a)(authentication requirements satisfied defendant, do not made an arrest this finding support a “evidence sufficient to your reputation to his you opinion base question propo that is its the matter what talking and on on informant information claims”). cocaine, case, nent The was other individuals? properly seizing officers identified offi- information and other A: Informant in Stoker v. under the standard we set out cer information. 1, (Tex.Cr.App.1989), 788 10 denied, girls cert. 111 112 Q: you young 498 U.S. S.Ct. Have ever talked (1990) (providing that chain of reputation? L.Ed.2d about his conclusively custody proven is the seiz Yes, I A: have. (1) ing that officer testifies: he seized pass the witness. We’ll [PROSECUTOR]: (2) evidence, physical he has identified that going ATTORNEY]: We’re [DEFENSE (3) evidence, personal his mark on and object any questioning or further placed into the item of he and retrieved being last two lines as questioning those room). In the property evidence from the testimony. scope reputation outside any tampering, absence of evidence of there fore, already prohibit passed has see no reason to admis THE He COURT: just through. properly be he is sion of identified evidence I assume witness. kept has in an room cause it been evidence Okay, but I ATTORNEY]: [DEFENSE period
for of time and under an extended object questions.. two to those last Alvarez, testing. gone prior forensic Cf. THE Overruled. COURT: (dictating questions of at 147 Nothing fur- ATTORNEY]: [DEFENSE issues). custody credibility Ac care are and ther. cordingly, appellant’s point twentieth error may step THE You down. COURT: is overruled. family rape-victim criminally several of her mem- and
9.
case
that the
The facts of the
reflect
party raped
impregnated one
culpable
charges
and
conduct.
to avoid
his
bers
crime,
to kill
victims of the
and
motivated
timely objection
A defendant
Cr.App.1991),
must make a
(1992).
preserve
Indeed,
order
error in the admission of S.Ct.
lant has failed to error. Point of twenty-four, appellant of error twenty-one is overruled. contends his conviction invalid is be
cause it
based on the
instruction on
X.
contained
Article
*16
37.071(b)(2); an
impermis-
instruction which
In
twenty-two
of error
through
sibly decreases
of proof
the State’s burden
twenty-four, appellant
persuade
to
attempts
beyond
from
a reasonable doubt to a mere
“probabili-
us that the
of
inclusion
the word
probability by including
“probabili
the term
ty”
special
capital
in our
punish-
issues on
ty”.
again,
Once
appellant
we must refer
capital sentencing
ment renders our
proce-
long
prior
holding
line of our
cases
that the
constitutionally
We, however,
dure
invalid.
“probability”
inclusion of the
term
the
appellant’s arguments
find
to be unsatisfacto-
dangerousness special
capital
issue
ry.
impermissibly
trials does not
soften the re
quired
proof in criminal cases.
burden of
A.
State,
473,
v.
481-82
Robison
888 S.W.2d
point
twenty-two
In
of error
(Tex.Cr.App.1994); Kemp v.
846
State
twenty-three, appellant attempts
persuade
289,
(Tex.Cr.App.1992), cert.
S.W.2d
309
de
us that his death sentence is invalid because
nied,
2361,
918,
508
113
124
U.S.
S.Ct.
jury’s
it is based on
application
the
of the
State,
(1993);
L.Ed.2d 268
Jones v.
843
term,
vague and
“probability;”
indefinite
487,
(Tex.Cr.App.1992),
496
cert.
S.W.2d
de
consequently
the trial court erred
nied,
1858,
1035,
507
113
123
U.S.
S.Ct.
denying appellant’s
quash
cap
motion to
State,
(1993);
479
L.Ed.2d
Sosa v.
769
ital murder indictment. We have consistent
909,
(Tex.Cr.App.1989). Ap
S.W.2d
916-17
held, however,
ly
capital
juries’
murder
pellant’s twenty-fourth point of
is ac
error
term “probability”
utilization of the
to re
cordingly also overruled.
special
the
dangerous
solve
issue of future
passes
scrutiny
ness
for
constitutional
indefin
XI.
State,
289,
Kemp
iteness.10
v.
846 S.W.2d
denied,
(Tex.Cr.App.1992),
twenty-five,
308-09
appellant
cert.
508
ar-
918,
2361,
gues
during punish-
U.S.
113 S.Ct.
his own unborn but also several live-in- helpless, elderly
relatives: two women and XIII. happened an the uncle who to answer the light consideration and our careful door. rejection twenty-six conclude, therefore, error, judgment We that the trial we affirm the of the timely court’s failure to the court. defense’s sustain note,
13. Please the un- supra. defendant was sentenced der the version Article 37.071. See n. every in against almost BAIRD, Judge, concurring.1 “works the State case.” points of disposition in I concur five and six. However, further majority offers some 46, (Tex.Cr. holding: support its “Our explanation to v.
In Soria allowing recognized justice in App.1996), this will not tolerate Court sense might testify through limited circumstances defendant to criminal defendants pre rights by his waive Fifth Amendment use the Fifth expert and then defense — senting testimony expert had of an who against self-incrimina privilege Amendment psychiatric examination of the conducted a themselves from cross-examina tion to shield pains explain to took defendant. Court they put in have tion the issues which only testimony by presenting the Ante, explana of dispute.” at 611. this While “construc expert his own does defendant Soria, holding it may support tion thereby subject himself tively testify” and holding plainly support its does psychiatric by examination State’s has not “testified case where the defendant Soria, at Actu expert. 57-58. expert” and the defen through the defense testimony by the presentation al defen any dispute” ... put dant has not “issues necessary Fifth is to effect a waiver of dant expert has not testified. because defense rights testi Amendment because until such cites from several While the Court dicta mony is it said that presented cannot be holding, support of its none of cases constructively has the defendant testified. today. cited hold as the Court holds cases explained, As “introduction the defense Therefore, ordering the trial court erred in testimony upon ex psychiatric based an an appellant to submit to examination amination ‘constitute[s] of the defendant yet expert appellant had not State’s fifth waiver the defendant’s amendment by pre rights Amendment waived Fifth privilege would the same manner as psychiatric of his own. Sor senting evidence testify tñal.’” election defendant’s ia, analysis Accordingly, a harm Id., Estelle, supra. (quoting at 54 Battie 81(b)(2). (5th Cir.1981)). Tex.RApp. P. Merely appropriate. F.2d 701-702 initiating expressing an intent initiate 81(b)(2), the assessing harm under Rule psychiatric evaluation does not amount (1) following factors should be considered: testimony. constructive (2) error; the nature of the the source of today it is The Court has “decided that (3) error; extent to what whether necessary ‘legal employ a sort of fiction’ (4) error; any collater- emphasized the in- defendant] ... once has [a indicated (5) error; weight a implications al present tent testi- error; juror place upon the probably would Ante, mony.” Accordingly, at 611. declaring harmless the error whether Court demon- holds “when defense it encourage repeat the State put dangerous- strates the intent to on future impunity. Harris expert testimony, may ness trial courts order (Tex.Cr.App.1989). independent, to an defendants submit *19 the of the error was The source prior the state-sponsored psychiatric exam thereto, the State’s court’s order. Pursuant expert presentation of the defense’s actual a attempted psychiatric to conduct expert justifies testimony.” Id. Court this hold- The appellant’s appellant to examination of assess by rationalizing “[prohibiting the ing that testify- purposes future ordering psychiatric exam trial court from However, re- ing punishment. appellant at actually presented until after the defense has Accordingly, in cooperate. rebuttal fused to testimony work expert own is bound to his that he expert defense who testified every against the almost case.” State appellant concluded that had examined Ante, agree we at 611. I cannot should danger, the State’s he be ignore would not defendant’s constitu- invocation attempted to expert that he had recognizing them testified rights tional because Maloney prior leaving Judge the Court. opinion prepared by Frank his 1. This was appellant appellant examine but had not co- 5. Two women testified that operated. hypo- He then testified on a gunpoint based had forced them at to remove Appellant’s cooperate thetical. clothing, failure to up their had tied them expert prevented with the expert State’s the attempted perform oral intercourse drawing any from conclusions based on an on them. appellant.
examination of
police
6. Numerous
officers testified to
appellant’s bad reputation.
At the outset of
testimony,
the State
expert
jury
if
appellant’s
might
asked its
Even
the
about
lack of
have viewed
cooperation
cooperation
with
lant’s lack of
his examination.2
After
the State’s
inquiry,
expert
inculpatory,
that initial
again
the State
not
as
the
did
other evidence
mention
attempted
supporting
finding
the
ques-
examination
affirmative
on future
tioning
expert.
dangerousness dissipated
The
the
State did not
effect
even
words,
expert’s testimony
closing
ap-
refer to its
evidence. In other
in its
evidence
argument.
pellant
cooperate
jury
The
asked
did not
with a
to as-
State’s ex-
pert
insignificance
finding
compared
sess an
fades to
danger-
affirmative
of future
of appellant’s
ousness based on
facts of
other evidence
in-
the case and
behavior
appellant’s prior
dangerousness.
dicative of future
appellant’s
conduct. While
cooperate
failure to
in the
might
examination
addition,
In
at
time
the trial court’s
negatively by
have been viewed
jury,
it
order,
it did not have
the benefit
this
emphasized
was not
by the State.
opinion in
Soria. Soria
clearly
Court’s
sets
forth the circumstances in which a defendant
assessing punishment
jury
consid-
deemed
have waived his Fifth Amend-
guilt/innocenee,
ered all
at
the evidence
rights by introducing psychiatric
ment
testi-
punishment phase
well as the
evidence. The
mony.
light
of the dictates of Soria it is
following
evidence was
before
unlikely that the State would continue to ask
punishment:
by
the trial court to order an evaluation
Appellant
1.
had sexual intercourse with
expert prior
State’s
to introduction
such
ten-year-old
victim multiple
oc-
(were
expert
evidence
a defense
it not for
casions,
resulting
preg-
the victim’s
holding today).
the Court’s
nancy.
factors,
Considering
beyond
I
these
find
morning
2.
being
after
informed
reasonable
error in
doubt
trial court’s
charges against
that the sexual assault
ordering the
exam-
defendant to submit to an
dropped,
ap-
be
expert
ination
the State’s
was harmless in
pellant went
residence with
punishment
did
it
not contribute
shotgun
brutally
double-barrel
Accordingly,
dispo-
I
assessed.
concur
ten-year-old victim,
murdered the
her
points
and,
sition
error five and six
aunts,
great
injured
two
and shot and
therefore,
join only
judgment of
her uncle.
Court.
Appellant
previously
3.
convicted of
murder
1977 and was sentenced to
MEYERS, J., joins
opinion.
years.
twenty
OVERSTREET, Judge, concurring.
4.
police
they
Two
officers testified that
appellant dealing
disagree
had observed
majority’s
co-
I
with the
discussion
regarding
caine.
of error num-
*20
2. The
to be evaluated?
the Defendant and evaluate the Defendant?
evaluated.
Q.
information ... but he
about 30
[Prosecutor].
[State’s
following exchange
Did
you
minutes,
expert].
inquire
And were
I
as to
spoke
basically
he
occurred:
you
gave
why
able
me some basic
he
declined to be
to
didn't
[appellant]
interview
want
being willing to be evaluated?
probably would not be
unlikely my
A. That
A.
Q.
I did.
What did
[*]
I was
evaluation would
[*]
he tell
hired
[*]
you
by
fair
[*]
as a
help
prosecution
reason
[*]
him.
[*]
for
it was
not
beyond
now,
majority goes even
complains
And
and six
he
of the
bers five
wherein
to
trial courts
order
Soria and authorizes
ordering
by
to
court
him be examined
State-sponsored psy-
to submit to
defendants
However,
psychiatrist.
because
the State’s
dangerousness when
chiatric
on future
exams
present
in
to
his
fact was allowed
”
“plans
his
even
to introduce
defendant
in
expert testimony
spite of his refusal
to
expert testimony.
dangerousness
own future
psychiatrist’s efforts
succumb to the State’s
(emphasis
supra,
at 611
Lagrone,
942 S.W.2d
him,
disposi-
to
I concur with
interview
in
original).
one determines
in
Just how
points.
tion of the
“plans to intro-
a
advance whether
defendant
specified. Is the
is not
duce” such evidence
my
to
As I indicated in
recent dissent
this
pre-trial, or
to file some
required
defendant
Court’s
of the same issue in Soria
treatment
is the defen-
pre-punishment, motion? Or
46,
(Tex.Cr.App.1996)
v.
interrogation
to
required to submit
dant
J.,
(Overstreet,
dissenting), there is no con
“plans to
he
introduce”
about whether
even
statutory legal authority
stitutional or
for
shifty
a
such evidence? Or does defendant’s
forcing
interroga
a defendant to submit to
eyes
a
for con-
scheming
provide such basis
by State-sponsored psychiatrist
so
tion
“plans
cluding that
to introduce” such
he
can make its future
the State
wonder;
only
it cer-
can
but
evidence? We
against
punishment.
at
case
the defendant
majority’s rea-
tainly appears pursuant to the
majority
disregard
continues to
this
The
soning
potentially each and
and attitude that
holding in
Court’s
Bradford
to
every capital
can be ordered
defendant
opin
(Tex.Cr.App.1993)(plurality
interrogation by
psy-
submit to
State’s
Court),
ion
of the
every capi-
expert
each and
chiatric
because
(1994).
115 S.Ct.
130 L.Ed.2d
proffer
to
their
tal defendant could choose
fact,
now,
majority
derogation
in
punish-
expert psychiatric evidence at
own
Court, citing
opinion of the
Bradford
majority
Is
what the
intends—
ment.
dissenting opinion
states that its
Bradford
capital
compelled
be
to
that all
defendants
justice
allowing
“sense
will not tolerate
interrogation
to an
and interview with
submit
testify through
criminal defendants to
psychiatric expert so that the State
a State’s
expert and
defense
then use the Fifth
present
from such
can
the evidence obtained
privilege against
Amendment
self-incrimina
interrogation
proving up
interview and
to
from
tion
shield themselves
cross-examina
above,
As
there is no
special issues?
noted
they
put
which
tion
the issues
have
statutory
authority
legal
constitutional or
dispute.” Lagrone v.
to
forcing
to submit
such interro-
a defendant
case, appellant did not
611. Yet in this
testi
its
gation
for the State to make
and interview
fy
testify
his
did
take the stand to
—he
special
on the
against
case
the defendant
This
has
held that out-
defense.
Court
even
punishment.
at
issues
of-court statements do not constitute “testi
Likewise,
is no
stat
there
constitutional
mony”
require
such as
corroboration.
authority
sanctioning a
utory legal
defen
(Tex.Cr.
Bingham v.
right especially punishment critical at in a Otherwise, I only judgment. concur in the capital murder case where the issues are literally physical matters and death. life preclude To and forbid defendant from
presenting indisputably evidence that is rele- potentially special
vant to the lethal issues jury simply
that the has to answer because he chooses to exercise his constitutional Leroy KIRK, Appellant, Marvin rights epitome to silence is the of impru- dence. Texas, Appellee. STATE
Nevertheless, out, majority points as the appellant trial court did indeed allow 1553-96, Nos. 1554-96. present testimony expert, from his Dr. Texas, Appeals Court of Criminal Lagrone, supra, 942 Schmitt. S.W.2d at 610. En Banc. precluded Thus he was not presenting from testimony expert upon based his refusal 29, Jan. 1997. comply the order be interviewed Opinion Ordered Published March 1997. expert.1 the State’s And that State’s expert testify did as to future
dangerousness of appel without the benefit submitting
lant to the forced interview.
Thus the State was able to make its case on dangerousness
future and convinced the resulting return a verdict assessment of sentence, appellant
the death without submit
ting to the forced interview. As the United Supreme
States Court said in Estelle v.
Smith, 101 S.Ct. (1981), 68 L.Ed.2d “the State
must dangerousness make its case on future way[,]” other some the instant
cause, obviously quite was able to
make its case on way,
some other i.e. without sub
mitting to the forced interview. majority preach
Because the continues to abridge
so as to the Texas Constitution’s and
the United States Bill of Constitution’s
Rights’ privileges against Fifth Amendment process right
self-incrimination and the due defense, present a I respectfully dissent to five discussion contained However,
six. because the trial court did present testimony
allow from his fact, preclusion compelled submitting 1. In since there no for not forced presentation testimony, lant’s the of Dr. Schmitt’s interrogation by psychiatric expert ap- a State’s entirety majority’s discussion about pears to be utter obiter dictum. preclusion being appropriate such sanction