Ninfa Perez ORTIZ, Appellant, v. The STATE of Texas, Appellee.
No. 1508-89.
Court of Criminal Appeals of Texas, En Banc.
June 17, 1992.
834 S.W.2d 343
Accordingly, I dissent.
Brian W. Wice, Houston, for appellant.
Michael J. Guarino, Dist. Atty., and Thomas Rodriguez, Asst. Dist. Atty., Galveston, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON STATE‘S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of the offense of attempted murder. The jury rejected her application for probation and assessed punishment at confinement for eight years in the penitentiary.1 The First Court of Appeals reversed the conviction and remanded for a new punishment proceeding, holding that the trial court erred in admitting testimony from a psychiatrist at the punishment phase of trial that appellant would not make a “suitable” candidate for probation. Ortiz v. State, 781 S.W.2d 399 (Tex. App.—Houston [1st] 1989). We granted the State‘s petition for discretionary review in order to review this decision.
I.
In brief, the State‘s evidence shows appellant persuaded her boyfriend, Wayne Messinger, a dispatcher for the Galveston Police Department, to kill her ex-husband, Richard Ortiz, with whom she was again living. At appellant‘s instigation, Messinger obtained a .22 caliber pistol with a silencer. On June 14, 1985, appellant left the door to her and Ortiz’ home unlocked so that Messinger could gain entry. When Ortiz arrived home from work shortly before 4:00 p.m., Messinger shot him seven times, severely wounding but not killing him. A few days later appellant confessed to her part in the crime.3
Appellant offered the testimony of Dr. Toby Myers, a psychotherapist, to the effect that appellant was, at least by her own description of the circumstances of her marriage, a victim of battered wife syndrome. When the State objected to this testimony, appellant called the trial court‘s attention to this Court‘s opinion in Fielder v. State, 756 S.W.2d 309 (Tex.Cr.App.1988). After an in camera hearing not made a part of the record, the State abandoned its objection, and Dr. Myers was allowed to testify.4
At the punishment phase of trial appellant called seven witnesses, including family, friends and co-workers. Even her ex-husband, Richard Ortiz, the victim of the offense, testified in her behalf. Each witness
In rebuttal the State offered testimony from Dr. Edward Gripon, a psychiatrist. Gripon testified he is a contract consultant with the Jefferson County Probation Department:
“... I evaluate juveniles and adults whom the probation officers or the judges or whoever places them on probation tend to have some concern about, regarding some type of psychological or mental health aspect as to their suitability for probation. I see a lot of people who are not doing well on probation and there‘s a motion to revoke their probation filed. I evaluate a lot of people who, I guess, a layman could call noncompliant, who are not complying with the requests or demands of their probation. I file reports back on a weekly basis on those people that I see with the Probation Department and with the court.”
Asked whether he had “ever had occasion to evaluate a defendant for his potential for future dangerousness[,]” Dr. Gripon answered:
“Yes Ma‘am. That‘s a question that we‘re asked. It‘s a somewhat controversial question, I recognize, but psychiatrists are called into court not infrequently—most commonly, I suppose, in the punishment phase of trial—and are not infrequently asked questions either in the form of a hypothetical, or if they happen to have interviewed or seen that particular defendant, then they are asked questions about the likelihood or the potential for that person committing a similar act or being dangerous in the future.”
Gripon then enumerated his criteria for determining “whether a person would be a suitable candidate for probation[,]” viz:
“Seriousness of the offense, prior record of a similar offense or other offenses, emotional makeup of the individual. You could consider the nature of the offense as to the time frame involved and other factors that might have created those circumstances; impulse versus something that was premeditated or planned or whatever; the support system of the individual; likelihood of the victim, if it‘s a victim, and the individual being put back together or being back in the same type of circumstances again—that sort of thing.”
Applying these criteria to his knowledge of appellant gleaned from her confession, the police offense reports, and reports from Dr. Myers and another psychologist,5 Gripon concluded appellant was “an unsuitable or poor candidate for probation.” Because of the long and tempestuous history between appellant and her ex-husband, and given that appellant had had other ready options by which to escape the relationship short of the extremity she chose,6 Gripon believed that “[h]istory could repeat itself again, and probation might not necessarily be the best approach to that.”
Gripon also testified he had worked with abused women. He spelled out what he understood from the literature to be the criteria for diagnosing marital abuse, and opined that appellant did not meet those criteria. He expressly disagreed with Dr. Myers’ evaluation in this respect.
The court of appeals held that admission of expert testimony such as Gripon‘s precipitates a “battle of experts,” something this Court has indicated in certain contexts tends to confuse more than facilitate understanding of punishment issues before the jury. E.g., Schulz v. State, 446 S.W.2d 872 (Tex.Cr.App.1969);
II.
A. Rules 401 & 402
The court of appeals seems to have assumed that Dr. Gripon‘s testimony was relevant. Such a holding is implicit in a finding under
Furthermore, because all evidence from the guilt phase of trial was resubmitted at punishment, sans objection, testimony from Dr. Myers that appellant fit the profile for battered wife syndrome was before the jury at that stage as well, admissible for whatever mitigating impact it may have as a circumstance of the offender.8 Murphy v. State, supra at 63-64. To the extent it contradicted Dr. Myers’ conclusions, Dr. Gripon‘s testimony that appellant was not such a victim also had a bearing on the punishment to the extent it may have deflated that mitigating impact. For these reasons we agree with the court of appeals’ tacit assumption that Dr. Gripon‘s testimony was “relevant.”
The Rules of Criminal Evidence favor the admission of relevant expert testimony, just as they favor admissibility of any evidence that is deemed relevant under
“... all such testimony need not be admitted. A judicious application of the Rule 702 helpfulness standard and Rule 403 balancing factors is necessary. * * * Such determinations must necessarily be resolved on a case-by-case basis, as they will depend on factors such as the content of the testimony, the context in which it is offered, and the state of the evidence. The admissibility of expert testimony is thus for the court to decide as a preliminary question under Rule 104(a). The court‘s decision should be overturned only for an abuse of discretion.”10
Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal § 702.2 (1988), at 500-501.
As we read it, the court of appeals opinion in this cause holds that psychiatric testimony admitted as relevant to the issue whether an accused may be a suitable candidate for probation will be more prejudicial than probative as a matter of law. Such a holding effectively removes the trial judge from the
It is true that in Hopkins v. State, supra, we held that expert psychiatric testimony as to the credibility of another witness in the case is impermissible. Put to this particular use, we held, psychiatric testimony is more likely to confuse than enlighten a jury. Thus we effectively held that “psychiatric testimony for impeachment” will invariably prove more prejudicial than probative, at least as a matter of pre-Rules law. 480 S.W.2d at 220. The holding in Hopkins is no broader than its facts, however. In other contexts we have readily held relevant psychiatric testimony admissible without inquiry into whether as a matter of law it might prove more prejudicial, confusing, etc., than probative. We have long held, for example, even before the new Rules of Evidence, that psychiatric testimony may be admitted in a capital case when in its discretion the trial court deems it informative on the issue of future dangerousness. E.g., Moore v. State, 542 S.W.2d 664, at 675-76 (Tex.Cr.App.1976). Even assuming the holding in Hopkins would survive the new Rules, we do not regard it as dispositive of the instant case.
Nor do we believe that Schulz v. State, Logan v. State, or Brown v. State, all supra, control. In Schulz the Court held that the trial court had not erred in excluding psychiatric testimony that probation “would be better” for the accused because such testimony was an “invasion of the province of the jury.” In Logan the Court held it was not error to exclude testimony that the purpose of probation was rehabilitation and “that when a person had a clean record there was possibly a good chance to rehabilitate[.]” 455 S.W.2d at 270. We simply cited Schulz, without further expli-
In Brown, another pre-Rules case, we held the trial court did not err in excluding testimony from a probation officer describing terms and conditions of probation, alcohol and drug rehabilitation programs available to a probationer, and an intensive supervision program to which the accused could be admitted. The Court reasoned, inter alia:
“To admit this testimony would make it logically consistent to admit testimony offered by the State concerning the administrative procedures and rehabilitative programs practiced by the Texas Department of Corrections. The logical and inevitable result of this would be to allow an escalating ‘battle of the experts’ to develop during the punishment phase of trial. Whatever probative value this testimony would have is far outweighed by the danger that it would prejudice or confuse the trier of fact.”
We construe Brown to hold that testimony relevant to the trappings of probation may be excluded, within the trial court‘s discretion, where it might precipitate a distracting inquiry into the relative merits of probation versus incarceration. This is a far cry from holding that psychiatric testimony focusing on so-called suitability for probation, where that has been made an issue in the punishment phase of the case, will invariably be more confusing or prejudicial than probative, as a matter of law.
In fact, Schulz, Logan and Brown all held that the record supported the trial court‘s exercise of discretion to exclude psychiatric testimony relevant to probation. None holds that the trial court has no discretion to admit such testimony, should it find it is helpful to the jury, and that its probative value was not substantially outweighed by unfair prejudice or confusion of the issues. Questions of admissibility under
We hold that the court of appeals erred in failing to measure the trial court‘s decision to admit Dr. Gripon‘s testimony, both as to appellant‘s ability to follow the terms and conditions of probation, and as to whether she fit the profile for battered wife syndrome, against an abuse of discretion standard. Accordingly, we vacate the judgment of the court of appeals and remand the cause to that court for further consideration and disposition not inconsistent with this opinion.12
MALONEY, J., concurs in the result.
BAIRD, J., dissents.
OVERSTREET, Justice, concurring in part and dissenting in part.
As the plurality details, we granted a single ground for review from each of the State‘s and appellant‘s petitions. The State‘s ground questions the First Court of Appeals’ ruling regarding the admissibility of psychiatric testimony at punishment to rebut appellant‘s contention that she was a suitable candidate for probation. Appellant‘s ground contends that the court of appeals’ remanding for a new trial solely on the issue of punishment violates the ex post facto clause of the United States Constitution. I agree with the result of the plurality‘s disposition of appellant‘s ground, but disagree with the disposition on the State‘s ground.
Appellant‘s ex post facto claim has recently been addressed and decided adversely to his position. See Grimes v. State, 807 S.W.2d 582 (Tex.Cr.App.1991). Therefore that ground should be overruled. Because the plurality‘s dismissal thereof has the same effect, I concur with said action. See page 344, note 2. However, I disagree with the plurality‘s disposition on the State‘s ground.
As the plurality describes, at punishment seven witnesses, including the complainant himself, testified for appellant. They each testified without objection by responding affirmatively when asked if they felt that appellant would be a good candidate for probation and would or could follow the rules of probation. Over objection appellant requested that the jury “give [her] probation.” She then responded affirmatively when asked if she could follow the terms and conditions of probation. Then she was asked specifically about whether she could follow several particular terms and conditions, such as not committing a felony against the laws of Texas or the United States, avoiding injurious and vicious habits, performing community service, and continuing to work and support her family. She again responded affirmatively to those specific questions.
The State proceeded to call in rebuttal a psychiatric expert. The jury was recessed and the State presented testimony qualifying the psychiatrist as an expert. At that time appellant objected to allowing the psychiatrist to testify before the jury because he had never examined her and was basing his opinions upon hearsay, and upon reviewing a presentence investigation report which was not before the jury and documents of questionable accuracy. The trial court overruled the objection and allowed the psychiatrist to testify before the jury. The psychiatrist then testified in some detail about abused/battered wife/women situations and typical characteristics thereof. He did not feel that appellant fit the typical profile of such an abused/battered woman. He further opined that appellant and the complainant appeared to be involved in a classical love-hate pathological relationship. He finally concluded that in his opinion appellant would not be a suitable candidate for probation. Appellant did not object to the relevancy or prejudicial effect of any of that testimony. At one point when the psychiatrist was first asked about probation suitability, appellant objected solely to the narrative answer.1
The State then withdrew and rephrased that particular question and the trial court instructed the psychiatrist to not volunteer information in responding. The psychiatrist then further testified, without objection, about his view that appellant was unsuitable for probation. He was even specifically asked “to elaborate on why [he] came to that conclusion” without any objection from appellant.
Though I think that very very rarely, if ever, is an expert‘s “specialized knowledge” about probation suitability going to
Appellant‘s point of error below dealing with the psychiatrist‘s testimony simply challenged said testimony with respect to probation suitability. No mention was made about the abused/battered wife/women testimony.2 The court of appeals’ decision was thus not based upon the admissibility of such testimony. Ortiz v. State, 781 S.W.2d 399 (Tex.App.—Houston [1st Dist.] 1989). It simply concluded that the psychiatric testimony about probation suitability was erroneously admitted and that such error was not harmless.3 Id. Thus, there is no decision for this Court to review regarding the admissibility of the abused/battered wife/women testimony.
Therefore the court of appeals’ determination that the probation suitability testimony was erroneously admitted should be reversed because the evidence was admissible as a response to appellant opening the door to such. Because the plurality does not do so I respectfully dissent to remanding the cause for further consideration.4