Powell v. State

* Appellant gun four times fired shootout, possibly wounding

during the

Father O’Brien. argue

At no time did the that the State law applied special issue number parties exclusively Thus, the

one. State focused arguing for own conduct in special

an affirmative verdict to the issue. light wording special one, application

number law guilt of the ease at the

parties to the facts

phase, argument of counsel regarding the law

appellant and evidence, no actual harm accrued Accordingly, hold that appellant. we

error, refusing requested any, in if Appel- harmless error.

instruction was point of error number one over-

lant’s

ruled. appellant’s points

Having considered finding error, we

error and no reversible judgment trial court.

affirm

CLINTON, J., concurs in the result. J.,

TEAGUE, participating. POWELL, Appellant, Lee

David Texas, Appellee.

The STATE of

No. 67630. Texas, Appeals of

Court of Criminal

En Banc.

July duty. Bittick,

on Polly At 12:41 a.m. police dispatcher radio on duty, received call requesting from Ablanedo a check through the National Criminal Information (NCIC) center person on a Sheila named Margaret Meinert, to determine if was she wanted for offense. Ablanedo stated that he in the 900 block of Live Oak gave Street. He also a vehicle identifica- (VIN), tion number and asked for a com- puter check to determine if the vehicle bearing that number was stolen. Bittick called back to advise that in- the vehicle quiry pending, was still and that Meinert was not wanted local authorities. At a.m., request 12:46 radioed a for Ablanedo Powell, a check on appellant. David Lee computer “possi- Bittick’s cheek showed a Powell, ble wanted” and dispatched on she officer Bruce Mills to assist Ablanedo. This she procedure stated normal computer when a check determined person “possible was a wanted.” Ablanedo called ask back to what Bittick had him, appellant, possible told and she “... a thereafter, Shortly misdemeanor theft.” something Bittick heard like a over scream radio, and then the voice of Mills call- ad- patrol for more units. Mills then ambulance, an and vised that he needed stated an Mills there was officer “down.” Mustang in- stated that there was a red volved, eastbound, going and that the occu- pants were armed.

Other who resided in the witnesses seeing block of Live Oak Street described Mustang stopped red in that automobile Houston, Gray, appellant. Will block, police car with a behind it. Earle, Atty., Philip Ronald Dist. A. Nel- flashing A police lights its on. car son, Jr., Austin, Atty., Asst. Dist. Robert police seen officer and female were Huttash, Austin, Atty., State’s for the Then standing the two cars. between State. gunshots, there was the sound of Mustang rapidly away. Appellant drove having sitting in the was identified as been Mustang were back seat of the as the shots OPINION fired, person sitting another with McCORMICK,Judge. Mustang stopped fur- driver’s seat. The street, up ther moved Appellant was convicted passenger side. the front punishment jury murder. The assessed his at death. Villegas de- heard the radio Officer Joe Mustang,

Shortly midnight May scription red and conclud- after complex Ablanedo, apartment police Ralph particular ed that a Austin officer likely nearby Tenay on Oltorf be a testified that he had con- Street would trist. Dr. Checking parking hiding place. lengthy appellant, lot of ducted interviews with family, Villegas and his complex spotlight, with his members of friends acquaintances, had reviewed a sizeable Mustang occupants. red saw a with two lot, appellant’s personal writings. parking amount of pulled As he into the he was Tenay’s opinion, had in- appellant been weapon a met hail of automatic fire with 18, 1978, at officer May sane on the time coming right Mustang. from the rear the He believed Ablanedo was shot and killed. car, stopped, jumped He out of his appellant on was suffer- that that occasion thereafter, Shortly the returned fire. he ing schizophrenia, form of paranoid from a running position a man saw a crouched psychosis. Tenay believed that Dr. Mustang, from the south toward Travis pro- largely the result of condition was High School. The man turned back and longed psychoactive drugs use of such as Villegas looked at from a distance of 15 or methamphetamine. amphetamine yards, Villegas later identified the appellant There other evidence that was appellant. Appellant disappeared man as heavily had been involved in the sale and high around the corner the school. perhaps amphetamines, manufacture of joined Ville- Sergeant Darrell Gambrell “speed.” gas during firing apartment com- the sought The State to rebut this defensive person get a Mus- plex and saw out of the theory through of Dr. Rich- tang next it and lie down to as the other Coons, George psychiatrist, ard a and Dr. high running person was toward Parker, psychologist. Dr. met a Coons Tommy Fo- school. Gambrell and Officer appellant with and examined on four occa- down, lying the person ree reached hand- 18, 1978, May sions: on some 12 hours weapons. her her cuffed and searched again May shooting, after Meinert, appellant’s person The was Sheila May 29 The first meet- and June companion. Mustang, offi- Inside pursuant signed occurred to an order rifle, cers an AK-47 which found automatic morning the trial court on the of the recently hot to the was still touch from shooting. provided appel- This order that having fired. It later that been was shown testing by undergo examination and lant a Ablanedo had been shot with Chinese practicing psychologist of Dr. Coons and a ri- version a Russian AK-47 automatic appellant’s compe- his choice to determine fle. tency sanity at the time stand trial and upon Bruce Officer Boardman came alleged This order was of the offense. apartment complex firing going as the was State. Dr. made the motion person long on. He hair come saw with that on his several Coons testified based up throwing toward and make motion appellant, there was no examinations of Villegas him. An Officer and those with been insane appellant indication grenade hand later found unexploded May specifically 1978. He dis- Villegas’ patrol car. about ten feet from having any observed evidence claimed safety An offi- pin The had been removed. suffering paranoid from appellant was pin type used in cer found a similar to the schizophrenia. lying ground approxi- grenades such Parker, psycholo- George a clinical door passenger feet from mately three Austin, that he gist testified practicing Mustang. appellant of the At dawn July 25 and appellant on June had met with High School under a bush at Travis found 2, 1978, jail. County Each the Travis no re- patrolman. He offered school meeting and a half hours. lasted two two sistance. psy- several standardized He administered rested, chological appellant, raised determine appellant the State tests After presence of intelligence, to detect at the time defense disorders, Code, and to ex- V.T.C.A., neurological organic Penal Section offense. See He able personality functions. amine came His evidence on this issue 8.01. found He organic no difficulties. psychia- to detect Tenay, a chiefly from Dr. Emanuel intelligent appellant very to be and artic- acts of violence that would constitute a ulate, IQ continuing society. with an of 128. He characterized threat to appellant’s personality impulsive, high- Earle, Appellant called Ronnie the Travis rebellious, energy, non-conforming, imma- County attorney, district who testified that egocentric. ture and somewhat He stated through his counsel had vol- May that on unteered the information there was law, had been sane under Texas and that Roberts, grenade in hand his house. Edith testing para- no showed indication of counsel, one of also testified to schizophrenia. jury’s noid verdict at voluntary grenade. surrender guilt stage obviously trial indi- point appellant In his first of error that it cates found the State’s evidence complains prospective juror Catherine persuasive on more issue. improperly Simmons was excused for cause penalty stage At the of the trial the State Illinois, Witherspoon in violation of put January evidence that in after on 1770, 20 L.Ed.2d 88 S.Ct. having apartment been evicted from an for Texas, and Adams v. having nonpayment of rent and had the 65 L.Ed.2d 581 personal property impounded in De- therein appellant object Since failed to to the exclu landlord, George cember of 1977 prospective juror sion cause of Sim Sandlin, appellant had broken into Sandlin’s mons, error, any, if has been waived. Mod storage facility belongings. to remove his (Tex.Cr.App. den v. 721 S.W.2d 859 Ramos, employee Lee maintenance who 1986); (Tex. Mann v. 718 S.W.2d truck, driving happened upon a Sandlin Cr.App.1986); 686 S.W.2d Stewart burglary stopped apparent this and his Appellant upon truck. advanced him with appellant point In his of error second truek, knife, and when Ramos fled in his Dr. and Dr. Parker contends that Coons way chased him all the home and court, improperly by the permitted were get to him to come outside. Ra- then tried objection, testify for the State at over to mos declined. the trial and to ex- punishment admitted as evidence Also press opinion on the issue of future their testimony that a search of Appellant relies Es- dangerousness. day shooting revealed a house the after the Smith, 451 U.S. telle v. ether, a grenade, two cannisters of hand (1981) Estelle, and Battie ammunition, a box of 7.62 box of .45 caliber (5th Cir.1981). 655 F.2d 692 ammunition, a set of die Russian mm Court, in The Estelle for an AK- processing used in ammunition through supra, speaking Chief Justice automatic rifle. Also found 47 Russian Burger, prior to the in-cus- held that where kitchen and seized were various beak- tody psychiatric examination ordered ers, photo- A paraphernalia. chemicals com- court to determine the defendant’s they appeared graph of these items as the defendant had petency to stand trial into evidence. was admitted the kitchen right to that he had the not been warned conducting the search also police silent, any statement made and that remain containing metham- three small vials seized sentencing him at the against used could be weight approxi- a total phetamine, with penalty proceeding, admission gram. mately one psychiatrist’s felony trial of a of a by the crucial issue of damaging testimony Parker were called

Drs. Coon and Fifth to tes- permitted, objection, dangerousness over violated future compelled against privilege issue of future amendment tify on the ap- of a lack of examinations, because interviews self-incrimination their based knowing waiver rights and a praisal testified testings appellant. Both imposed thereof, could death “high” there was their not stand. commit would probability and his competency The Court further held that Sixth mental stand trial right Amendment's violated counsel was the commissionof the sanity at the time of where defense counsel was not notified day trial court or- offense. The same advance that examination appel- examination of dered encompass the would issue future dan- by Dr. Richard Coons and a lant to be made gerousness and there was no affirmative above, psychologist of his choice. As noted right waiver of counsel. purpose for the examination was determining competency to appellant's both Estelle, County the Dallas district sanity his the time of the motion, stand trial and judge, appointed on his Dr. own May appel- On one of Grigson to examine the defendant offense. James Roberts, counsel, appoint- of his to stand Edith lant’s 46.02, Grig- Dr. May trial. Article V.A.C.C.P. ed. 23 and Roberts had On giving son defendant without examined the telephone conversations with Coons warnings regarding Fifth Amend- permission who obtained her for Dr. Par- privilege against ment self-incrimination testing psychological ker do some notify and did not the defense counsel appellant. at no The record reflects that examination would encom- point in time did or Parker inform Coons pass the the issue of defendant’s future attorneys they appellant or his were dangerousness, nor the defendant ac- was appellant on asked to or had examined the in corded the assistance of counsel deter- dangerousness. issue Nor did of future mining whether to to submit such examina- give appellant, who in Coons or Parker tion, examination, Grig- etc. After the Dr. custody, warnings. Miranda reported son to the that Smith was court to glance, At first this case seems be competent to stand The case trial. went in by ruled Court’s decision the being trial with no as to the raised However, thorough of Estelle. a review competency defendant’s to stand trial or reading the a careful of both record and insanity to the defensive issue of at the bring us to the conclu- Estelle Battie alleged time of the After offense. Smith distinguishable case is sion that the instant guilt stage was convicted at of impression. a of first The and is case murder, capital trial Dr. bifurcated distinguishing is that the instant factor Grigson by was called at the State appellant argued the affirmative de- case that, testify of the trial to during insanity guilt-innocence fense of upon examination, his based he considered through phase trial sociopath the defendant Smith a severe Tenay. who would commit fu- violent acts given “if so.” opportunity ture to do Estelle, Language Battie jury subsequently The returned affirmative (5th Cir.1981), sug seems 655 F.2d special answers to the submitted issues gest a introduces testi that once defendant V.A.C.C.P., 37.071(b), under Article guilt- issue of mony on the penalty. trial court assessed the death trial, he in fact phase innocence In the instant case was taken Amendment his Fifth and Sixth waives magistrate day a of his ar- before rights implicated by psychiatric against and warned of the accusation rest guilt-innocencephase of the only not at the days complaint A later him. was filed five phase punishment trial but also May indictment on the first the trial. A presented on the same second date. petition- “The also contends State 29, 1978. indictment returned June (sic)privi- amendment er his fifth waived Shortly appellant’s apprehension after examina- by requesting psychiatric a lege Edwards, assistant May Steve competency to determine tion requesting attorney, filed a motion district sanity at the time and his trial stand psychiatric examina- the court to order argu- This crime. the commission tion, claiming which he had information psy- use of confuses ment however questions of the Powell’s raised

chiatric by examinations the defense or not does introduce the testimony of men- the State to determine a defendant’s expert tal health on the issue of a mental competency to stand trial with the use of state relevant to the offense or a defense psychiatric by examination the defense by raised the evidence in the case. Ac- or the State to ascertain the defendant’s cordingly, a defendant can invoke the insanity at the time of the crime. Each protection privilege when he does psychiatric testimony use of ques- raises expert introduce mental health testi- by tions different from those raised mony. Submitting or other and different doctrines have devel- psychological examination does not itself oped to account prob- for these different constitute a waiver the fifth amend- lems. protection.” ment’s 655 F.2d at 702. “The use of a psycholog- or rejecting regard- the State’s contention ical examination to determine a defend- requesting compe- waiver virtue of ant’s sepa- to stand trial is a tency hearing, implicitly the Fifth Circuit rate matter as far as the fifth amend- concept endorsed the arguing waiver privilege ment is concerned and is dis- insanity. the affirmative defense Thus tinct from the use of a or argued once defendant has the affirma- psychological examination to determine insanity by tive defense of use of culpability responsibil- defendant’s expert, from a mental health the Fifth ity charged against for the crimes him. privilege accompanying any Amendment compe- State’s use of the results of a psychiatric testimony has been waived. tency infringe examination does not in a Since murder case in Texas the privilege a defendant’s fifth amendment information testified to the mental because it does not assist the experts goes health to assist the State proving any necessary of the elements to proving up necessary one the of elements support imposition pun- the of a criminal support imposition to capital punish- the of ishment under state law. See Estelle v. specifically, ment under state the is- law— supra, 451 U.S. at sue of future Bat- —under at 1874-75. Had Dr. Patterson’s exami- tie, appellant, presenting an such only nation peti- been used to determine insanity defense -Fifth has waived his tioner’s to ‘no stand trial privilege. Amendment Fifth Amendment issue would have Furthermore, waiving in addition to 1874; arisen.’ Id. at id. S.Ct. at privilege by introducing psychiatric tes at 101 S.Ct. at 1876. timony insanity guilt- on the issue of at the “However, type when the same ex- trial, phase innocence of the our review of amination is used to de- determine a the record indicates that waived culpability responsibility or fendant’s privilege by several of his actions at crimes charged against him the for First, punishment phase of the trial. amendment privilege is involved fifth during preparation charge psy- because the use or punishment, appellant requested that the chological examination in this context following in the instructions be included may establishing assist the State charge: imposition pun- basis a criminal (foot- you ishment.” 655 F.2d at 700-701. “You are further instructed that omitted) (emphasis applied) you testimony of Peebles and leading in authority the States on United testimony was based Vogtsberger, which (sic).” forensic medicine on homocide of part psychiatric on examinations in in brackets [material added] during insufficient warn- appellant which Clearly, jury the defense wished the given.” 691 S.W.2d at 652. ings were psychiatric intro consider the in brackets added] [material guilt-inno the appellant duced the at reasoning appli- to be Judge Davis’ We find phase compare it with cence of the trial and also to the instant case. See cable Griffin psychological the and State, (Tex.Cr.App.1983). S.W.2d 762 v. at both the experts from the State’s elicited State, S.W.2d 693 Compare Clark phase the trial and the guilt-innocence of (where found (Tex.Cr.App.1981) the Court long phase It of the trial. has punishment though the even no of Estelle error waiver answering special in the the rule that been testi- defendant had introduced Y.A.C.C.P., 37.071, in under Article issues stage punishment because mony at the dangerousness, cluding the issue of future in order “to introduced such evidence was properly may jury consider all of erroneously meet, explain” the destroy or guilt stage admitted evidence the first evidence). admitted trial, including the testi of the bifurcated if that even conclude Finally, we appellant’s psychiatrist of own mony admitting the in there was error of defense. Russell Parker, error was (Tex.Cr.App.1983); of Drs. Coons State, 665 S.W.2d True, and Dr. Parker (Tex.Cr. Dr. Coon State, harmless. 626 S.W.2d 46 Garcia appellant would opinions that give did their App.1981). be violent the future. the jury But had nothing presented is for review. Thomas before them killing the details of the brutal State, 701 S.W.2d 653 (Tex.Cr.App.1985). plus attempted of Officer Ablanado kill- Appellant complains next that Article 37.- ing of other officers on They the scene. 071, V.A.C.C.P., is unconstitutional because that knew had armed himself not provisions it directing contains no for only with an AK-47 automatic rifle and instructing jury’s consideration of miti pistol a .45 automatic but gre- also hand gating circumstances at which throwing nade he did not hesitate in trial, heavily weighed is in favor pursuers. at his Other evidence introduced prosecution by focusing jury’s punishment stage of the trial showed consideration aggravating on circumstanc that January having after been es. This contention has been addressed apartment evicted from an nonpayment and overruled by this several having personal of rent had proper- his State, other occasions. Anderson v. ty apartment impounded, contained (Tex.Cr.App.1985); Penry v. S.W.2d into storage broke his landlord’s State, (Tex.Cr.App.1985); S.W.2d 636 facility belongings. Upon remove his (Tex.Cr. Stewart 686 S.W.2d 118 discovery by his landlord’s maintenance App.1984). Appellant’s brief contains noth man, appellant advanced the mainte- persuade prior rulings that our us pursued nance man with a knife and this wrong. point area have been This way man all the to his home. evidence error is also showed overruled. search house after the instant offense revealed a Finally, appellant contends that he variety ammunition, grenade another fairness, was denied pro fundamental due ether, and several canisters of which were equal protection cess and law in agent described an of the Bureau of Alcohol, unadjudicated admission of an extraneous Tobacco and Firearms as “of being explosive offense an nature.” Specifically, murder the defense conclude, We must as we did in Satter complains attempted about assault white 726 S.W.2d (Tex.Cr.App. by appellant upon Ramos, made the mainte 1986), that: Initially, nance man. we note no ob properly “the admitted evidence was jection was made to the admission average such that minds jury of an evidence at nothing trial and thus would have found the State’s case suffi- presented Crocker for review. ‘probability cient the issue of the S.W.2d 190 the defendant would commit criminal acts violence that would constitute a However, if objection even an continuing to society’ threat even if [Dr. been made at we would still be com Coon’s and Dr. Parker’s] pelled point to overrule this of error. This been admitted. The admission of the argument rejected has been considered and beyond was harmless error State, Hogue in a of number cases. reasonable doubt. Sanne v. Morin v. (Tex.Cr.App.1986); S.W.2d 9 (Tex.Cr.App.1980).” S.W.2d 762 (Tex.Cr.App.1983); 682 S.W.2d 265 sup- S.W.2d at 93. in brackets [material (Tex.Cr. Williams v. S.W.2d 116 plied] App.1981). Appellant’s point fifth of error point This of error is overruled. is overruled. error, point appellant his third error, Having found the no reversible complains that the admission of the testi judgment of the trial court is affirmed. mony of Dr. Coons Dr. Parker at the the trial undermined the reliability fact-finding process. of the A DUNCAN; J., result. concurs the review record reveals that there was ONION, objection on Presiding Judge, dissenting. no trial this basis and thus

3Q1 Hamlin, Argersinger U.S. point error1 In his second Parker S.Ct. that Dr. Coons and Dr. contends court, by improperly permitted the were Smith, supra, In Estelle v. the Dallas testify the objection, to over motion, County judge, on own district stage of to ex- penalty the trial and the Grigson Dr. to examine appointed James opinion on the issue future press their competen- on the issue of his the defendant Es- dangerousness. Appellant relies 46.02, to V.A.C. cy stand trial. See Article Smith, 454,101 telle Grigson Dr. examined defendant C.P. Texas 68 L.Ed.2d case. giving warnings regarding his any without privilege against self-in- Fifth Amendment any I do this has choice not believe Court notify defense crimination and did not point to sustain second but counsel examination error and reverse the conviction. encompass the defend- would issue Court, in Estelle v. The dangerousness, ant’s future nor was the supra, through speaking Chief Justice of coun- defendant accorded the assistance Burger, prior held where to the in-cus- determining to submit to sel in whether tody psychiatric by examination ordered examination, etc. such com- the court to determine the defendant’s examination, Grigson Dr. re- After to trial defendant had petency stand (the ported that Smith defend- to court right not been warned that he had the to ant) The competent to stand trial.' silent, remain and that statement made being to trial with no case went against sentencing him the could be used competency to raised as to the defendant’s stage proceeding, penalty admission at the stand trial or as to the defensive issue of capital felony psychiatrist’s of a trial aof alleged insanity at the time offense. damaging testimony on the crucial issue of guilt After Smith was convicted at violated the Fifth trial bifurcated privilege against compelled Amendment murder, Grigson called ap- self-incrimination because of a lack of stage of trial penalty State at the rights praisal -knowing waiver examination, that, upon his he testify based thereof, imposed the death could a severe the defendant Smith considered not stand. acts in commit violent sociopath who would The Court further held that the Sixth given opportunity “if do the future right to violated Amendment’s counsel was af- jury subsequently so.” returned where defense not notified in counsel was special to the issues sub- firmative answers advance that examination 37.071(b), V.A.C.C.P., under Article mitted encompass would the issue of future dan- pen- assessed death and the trial court gerousness there no affirmative alty appeal. The conviction was af- right waiver of to counsel. State, Smith by this firmed S.W.2d 693 It must be remembered that both the applicable

Fifth are remedies, and Sixth Amendments state Having exhausted his the states virtue of the Fourteenth sought corpus relief federal habeas Smith Malloy Hogan, Amendment. See the contentions identical prevailed 1489,12 (1964); L.Ed.2d 653 trial raised at those Estelle, Maryland, Benton v. the instant cause. Smith U.S. 89 S.Ct. 445 395 1977). (1969); (N.D.Texas .Pointer v. The Court F.Supp. 23 L.Ed.2d affirmed Appeals 13 L.Ed. of for the Fifth Circuit 380 U.S. S.Ct. the decision. Smith Wainwright, (1965); though modifying Gideon 2d 923 (5th Cir.1979). (1963); Estelle, Subse- 602 F.2d 694 9 L.Ed.2d 799 U.S. fact-finding pro- (nee reliability grounds) points dermined second and third 1. his appellant complains objection of the admission trial basis of error There was no cess. appel- at the of Drs. Coons and Parker nothing presented of the penalty for review is point third com- of the trial. His point third of error. lant’s plains un- the admission of such that quently Supreme the United States assisting Court he was the State’s efforts to ob- affirmed opinion the Fifth Circuit as earlier tain the penalty.2 death noted. Thus, Supreme the United States Court In affirming the lower court in the said held that both the Fifth and Sixth Amend- Smith case, Supreme Court noted that ments of the United States Constitution are dangerousness Smith’s future was a crit- by violated a doctor’s on future ical issue at the at the penalty stage of the murder upon and one which the State trial when the is question- based on proof beyond the burden of a reason- of a custody defendant repre- who is 37.071(b) able doubt. (c), Article by [See sented counsel questioning and the is V.A.C.C.P.]; to meet its conducted prior warning without on the burden, used Smith’s own statements un- Fifth privilege Amendment op- and without wittingly made without an portunity awareness for advice of counsel.3 psychiatrist changed statements were made to the 2. essentially and became like that of supposedly pretrial in what was a agent examination recounting an of the State unwarned competency to determine to stand trial. post-arrest statements made in a custodial set- evaluation, ting. During re- In Smith the Court wrote: spondent assuredly phase was ‘faced with a Arizona, 436, 467, "In Miranda v. adversary system’ the presence and was ‘not in the 1602, 1624, (1966), 86 S.Ct. 16 L.Ed.2d 694 personf] acting solely [a] acknowledged that ‘the Fifth Amend- Id., interest.” at 86 S.Ct. at 1625. Yet he privilege ment is available outside of criminal given compulsory no indication that the proceedings protect court per- and serves to gather examination would be used to evidence settings sons in all in which their freedom of whether, convicted, necessary to decide if he any significant way action is curtailed in from should be sentenced to death. He was not being compelled to incriminate themselves.’ that, accordingly, informed a he had constitu- prosecution may Miranda held that 'the not right questions put tional not to answer the statements, exculpatory use whether or incul- him. patory, stemming interroga- from custodial privilege "The Fifth Amendment is 'as broad tion of the defendant unless it demonstrates against as the mischief guard,’ which it seeks to procedural safeguards the use of effective to Hitchcock, Counselman 142 U.S. privilege against secure the self-incrimina- 547, 562, 195, 198, 12 S.Ct. 35 L.Ed. 1110 Id., S.Ct., Thus, tion.' at 1612. privilege only and the is fulfilled when fully procedures, per- absent other effective a guaranteed right a criminal defendant is custody warnings son in must receive certain speak 'to remain silent unless he chooses to interrogation, including before official will, the unfettered exercise of his own and to ‘right that he has a to remain silent’ and that suffer no ... for such silence.’ Mal- ‘anything against said can and will be used loy Hogan, Id., 467-469, the individual in court.' 1493-1494, agree We S.Ct., purpose at 1624-1625. The of these Appeals respondent’s with the Court of admonitions is to combat what the Court saw rights Fifth Amendment were violated ‘inherently compelling pressures’ at work Grigson’s testimony admission of Dr. person provide and to him with an penalty phase." privilege awareness of the Fifth Amendment defendant, "A criminal who neither initiates it, consequences foregoing and the which is attempts evaluation nor to intro- prerequisite intelligent for ‘an decision as evidence, any psychiatric may duce compelled not be to its exercise.' Ibid. respond psychiatrist to a if his calling "The considerations for the accused against capi- statements can be used him at a prior interrogation to be warned apply to custodial sentencing proceeding. respon- tal Because pretrial psychi- with no less force to the voluntarily pre- dent did not consent to the Respondent atric examination at issue here. being trial custody County examination after in- was in at the Dallas Jail when right formed of his to remain silent and the the examination was ordered and when it was statements, possible use of his the State could respondent questioned conducted. That rely Grigson by psychiatrist designated on what he said to Dr. the trial court If, dangerousness. establish his to tion, conduct neutral examina- warned, officer, being adequately respondent police govern- had in- rather than informant, Grig- prosecuting attorney, ment dicated that he would not answer Dr. Grigson beyond questions, validly competen- immaterial. son’s ordered When went simply reporting cy pro- to the court on the issue of examination nevertheless could have competence prosecution and testified for the ceeded the condition that the results penalty phase solely purpose. applied In on the crucial issue of would be for that circumstances, respondent’s dangerousness, proper future his role such conduct and

363 indictment was re- A second case was taken same date. In the instant 18, Shortly after 1978. magistrate May and turned on June 29, a on 1978 before 18, 1978, May apprehension on him against of the accusation as warned 15.17, Edwards, attorney, district assistant provided by A Steve Article V.A.C.C.P. 1978, 23, requesting the court to order May and filed a motion complaint was filed examination, claiming he had a presented the first indictment out, sanity counsel’s absence in or where use of examinations court frustrated, right might derogate a but the State must make its the accused’s are not from (Footnote omitted.) in other case on future way. some fair trial.’ 264, Henry, 447 U.S. 100 See United States “ barred 2183, ‘Volunteered statements ... are not (1980); 115 Messiah v. S.Ct. L.Ed.2d 65 Amendment,’ 1199, the Fifth but under Miranda 201, States, 12 U.S. 84 S.Ct. United 377 that, Arizona, supra, we must conclude (1964). Mary- See White v. L.Ed.2d 246 also custody while in with a court-or- when faced land, 59, 1050, L.Ed.2d U.S. 83 S.Ct. 10 373 psychiatric inquiry, respondent’s state- dered 52, Alabama, (1963); 368 U.S. 193 Hamilton Grigson ‘given freely ments of Dr. were not 157, (1961). 82 S.Ct. 7 L.Ed.2d 114 any compelling voluntarily without influ- “Here, right respondent’s Sixth Amendment and, such, be ences’ could used as the clearly had attached when Dr. to counsel phase penalty only respondent at if did Grigson County at examined him the Dallas apprised rights of know- had been ingly S.Ct., his Jail, proved to be a ‘crit- their interview Id., 478, at 86 decided to waive them. proceedings stage' aggregate ical safeguards of the Fifth at 1630. These respondent. against v. Ala- See Coleman privilege were re- Amendment spondent not afforded 1, 7-10, 1999, bama, 90 S.Ct. 2002- 399 U.S. and, thus, his death cannot sentence 2004, (1970) (plurality opin- 26 L.Ed.2d 387 (Footnotes omitted.) stand." Alabama, U.S., ion); supra, 287 at Powell v. discussing the conten- Sixth Amendment S.Ct., counsel, however, 57, 53 at 60. Defense tion, in Smith wrote: psychiat- that the were not notified advance respondent “When was examined Dr. encompass the issue of ric examination would (sic) already Grigson, he indicated had been dangerousness, their and re- client’s attorney repre- appointed and an had been spondent denied the assistance his Appeals sent him. The Court of concluded attorneys making significant decision right Sixth to the that he had a Amendment to the examination and of whether to submit of counsel before submitted to the assistance findings psychiatrist's end could to what F.2d, pretrial psychiatric interview. 602 at employed. be agree. We 708-709. layman may not be aware of "Because ‘[a] Amendment, applicable to "The Sixth made nuances, precise scope, and the bound- through the Fourteenth Amend- the states privilege,’ the aries Amendment Fifth ment, provides prosecu- all criminal '[i]n depends upon right ‘often assertion tions, right enjoy ... the accused shall legal is trained and advise from someone who his de- have the Assistance of Counsel for subject Mey- Maness v. in the matter.' skilled ers, lawyer’s fense.’ The ‘vital’ need a advice 595, 584, 95 S.Ct. 419 U.S. during pretrial recog- phase and aid (1975). Appeals As the Court of L.Ed.2d 574 observed, ago nearly years the Court nized regarding to made the decision be Alabama, 45, 57, 71, Powell U.S. proposed psychiatric is ‘literal- evaluation 55, 60, 65, (1932). 77 L.Ed. 158 Since ly is ‘difficult ... or death matter’ and life then, right we have held that to counsel requires attorney’ it ‘a because even for an knowledge able, granted by means that the Sixth Amendment is avail- what other evidence lawyer person help is entitled to the 'at psychiatrist's particular biases and judicial pro- adversary or after the time that ceedings possible predilections, alternative [and] against him have been initiated ... hearing.’ strategies F.2d, sentencing at charge, by way prelimi- of formal whether logically from our at 708. It follows indictment, information, nary hearing, or ar- precedents should not be defendant Illinois, raignment.’ Kirby 688-689, important an forced to resolve such 32 L.Ed.2d 411 92 S.Ct. guiding hand of counsel.’ Powell without ‘the Illinois, (1972) opinion); (plurality Moore v. S.Ct., Alabama, U.S., supra, at 463-465, 226-229, 98 S.Ct. 434 U.S. States L.Ed.2d 424 And in United "Therefore, Amendment 226-227, in addition to Fifth Wade, considerations, improp- penalty was the death (1967), the Court ex- psy- erly imposed respondent because the plained: Grigson on which chiatric examination Amendment] “‘It central Sixth [the is phase proceeded pres- testified at the counsel’s principle that in addition to respondent’s Sixth Amendment guaranteed violation right that he ence at the accused (Foot- of counsel.” to the assistance against the State need not stand alone informal, omitted.) prosecution, information questions which raised At penalty stage of the trial the State appellant Powell’s mental competency to offered of Drs. Coons and Parker, stand sanity trial and his objection, at the time of the over as to the issue of commission of dangerousness. the offense. future day The same Based on their ex- aminations, the trial psychiatric testing, court ordered a interviews and they ex- exami- pressed appellant nation of there probability to be was a made Dr. Rich- appellant ard the future psychologist Coons and a would com- of his choice mit criminal acts of violence that would appellant’s determine both continuing constitute a threat society. to stand trial sanity and his at the time of the offense. The record does not reflect that either Dr. Coons or Dr. gave appellant, Parker Dr. Coons appellant examined the on who was in custody, warnings Miranda or 18th, May 23rd and 29th and June 1978. informed him that the examinations were George Parker, psychologist, a tested also purpose for the determining his appellant on June July 25th and and whether he 1978. presented continuing threat society. counsel, One of appellant’s Edith And his attorneys were not so informed Roberts, appointed was May on 1978. that the testings examinations and were May 24, 1978, On 23 and telephone she had for this purpose. Except additional for Dr. conversations with Dr. Coons who obtained Coons’ appellant interview with May permission her for Dr. Parker to do some 1978, appellant, Smith, as in Estelle v. psychological testing. supra, already under indictment when testing place. examinations and took Neither Coons nor Parker ap- informed Thus right his to assistance of counsel had pellant Powell nor attorneys of his Illinois, attached. Kirby v. (Roberts, J.P. Darrouzet and Curt Beck- While corn) they were asked to or had exam- the attachment right of that does not en- appellant ined on the issue of future dan- compass right to have counsel actually gerousness. And Powell attorneys and his present during examination, Estelle v. request did not examination Smith, supra, it does appellant’s mean that purpose for that they nor indicate intended counsel should have been informed that the to offer evidence at testings examinations and would encom- stage of the trial. pass the issue dangerousness. of future On June appellant 1978 the filed no- Additionally, right the attachment of the tice that he presently incompetent to appellant counsel meant that could have stand trial and that he would offer at trial attorney prior consulted with his to the “evidence of defense.” Drs. testings. examinations and There is noth- Coon and appointed Parker were by the appellant gave to indicate that a know- court on June 1978 to make examina- ing, intelligent, voluntary waiver reports tions. Dr. Coons made two dated counsel, right to and waiver will not be July addressed to the district at- presumed from a silent record. torney, finding appellant competent and appear Thus there would to be violations sane. The present issue of incompetency of both Fifth and Amend Sixth appellant abandoned July rights ment at the present 1978. He did the defense of insani- instant murder trial.'4 ty by Tenay, of a Dr. psychiatrist. First, The State countered with the it should be considered whether testimony of appellant’s objections, timely, Drs. Coons and Parker that were while alleged prior was sane when the sufficient. It is observed to the offense was committed. Drs. and Parker at the Coons presented. It may should be here noted that the did have been Estelle v. situation psychological testimony not offer supra, 101 S.Ct. at 1878. had, penalty stage. If he a different

365 respondent penalty stage appellant’s Fifth the trial three ment that waived his by failing to make a court-appointed they testified Amendment claim counsel specific objection Grigson’s to Dr. timely, or not been notified the doctors others 702, See 602 F.2d at at trial. that was to be or had been exam- addition, we note n. 19. dangerous- question ined of future argument present in did not the waiver objection was then made to the ness. for certiorari. See this petition its testimony. request There no doctors’ (1970).” 40(l)(d)(2) Court’s rule by appellant for either a psychological examination on the future Appeals The Fifth Court of stat- Circuit any issue nor was there ed, 19, part in in as the cited footnote showing appellant intended use to such tes- follows: penalty stage timony at the of the trial. Smith “The state asserts that forfeited his amendment claims objection

The court overruled the fifth and sixth State, objected he to Dr. raising v. 540 not them when basis Smith S.W.2d 693 sentencing (Tex.Cr.App.1976), Grigson’s “Chambers v. phase. three an (Tex.Cr.App. S.W.2d 313 There are sufficient State.” [568 Second, 1978); Chambers, parte swers. First ... Texas courts now see Ex 688 interpreted the fifth and amend (Tex.Cr.App.1984) Appel sixth S.W.2d 483 ] Grig counsel, permit ments to like Dr. objec in lant’s connection with see, admitted, e.g., however, Living son’s to be ruling, tion and the called the State, 655, ston v. 542 S.W.2d 661-662 Estelle, to 445 court’s attention Smith v. denied, (Tex.Cr.App.1976),cert. 431 U.S. 647, district F.Supp. wherein federal 2642, (1977); 53 L.Ed.2d 97 S.Ct. 250 judgment in court set aside the the Smith apparent futility we have held that case, court, upon by relied the trial alleged objecting to an constitutional vio Fifth Amend violations of the and Sixth object, lation excuses a failure ments, [cita and which was a forerunner Es Third_” tion omitted]. Nevertheless, supra. telle v. permitted Drs. and Parker to court Coons appel- reject argument I would penalty stage.5 testify at the appeal should over- lant’s contention on be specific objec- timely for lack of a ruled If argued appellant’s objec- it can be tion at trial. sufficient, tion I observe that the Smith, supra, Supreme in v. Court Estelle Further, Supreme 1981 in No. footnote said: Smith, supra, v. has been Court Estelle retroactive, Estelle, “For the reasons the Court 655 stated held to be Battie v. (5th Cir.1981);6 Estelle, Appeals, reject argu- F.2d White v. we the State’s 692 difficult, except hindsight, place It be cases were all in when 5. would These September judge ruling case was tried in 1978. And after the trial at time of fault appellant's the date of trial this Court in Muniz trial. State, (Tex.Cr.App.1978), 792 re 573 S.W.2d State, Relying upon 500 S.W.2d 853 Stultz ruling court fused to follow the federal district State, (Tex.Cr.App.1973), and Patterson Estelle, (N.D.Tex. F.Supp. 647 Smith 1974), (Tex.Cr.App. S.W.2d 857 this Court Liv 1977), contrary holding to as a matter of ingston held that there was no violation of the See also Wilder v. federal constitutional State, law. psychia and Sixth Amendments when a Fifth (Tex.Cr.App.1979). 583 S.W.2d 349 appointed to the defendant's trist determine is the ulti- The United States permitted stand to testi trial expositor of the United States Constitu- mate fy murder trial tion, are to follow its inter- and we constrained question of the defendant’s future pretation of the Constitution. dangerousness. Smith v. To the same effect are State, (Tex.Cr.App.1976); Ghol 540 S.W.2d 693 no new that Smith established 6. Battie held State, (Tex.Cr.App.1976), 542 S.W.2d 395 principles son v. constitutional law of federal but den., applied already principles merely 432 U.S. 97 S.Ct. 53 L.Ed. fixed cert. Arizona, (1977); 86 S.Ct. 2d 1084 Moore v. 542 S.W.2d 384 U.S. Miranda Shippy situa- (Tex.Cr.App.1976); S.W.2d to a new factual Battie, den., Battie, 1977); (Tex.Cr.App. p. dealt with cert. tion. (1977); Byrd retroactivity Fifth Amendment violation Von L.Ed.2d 294 holding in Smith. 569 S.W.2d (5th Cir.1983); Muniz v. Pro yet F.2d 415 or not direct review final at the time of cunier, decision, (5th Cir.1985), cert. repre- even if 760 F.2d 588 new the rule den., Muniz, 934, past break” v. precedent sents a “clear with McCotter 474 U.S. practice. 267, or (1985); Jones 88 L.Ed.2d 274 106 McCotter, (5th Cir.1985), v. 767 F.2d 101 Estelle, supra, In Smith v. 101 S.Ct. at applied this Court has the decision and Supreme Court stated: retroactively as to both Fifth and Sixth holding “Our based on the Fifth and See, e.g., Thomp Amendment violations. prevent Sixth Amendments will not State, v. (Tex.Cr.App. son 621 S.W.2d 624 capital proving State in cases from State, 1981); Fields v. 714 627 S.W.2d dangerousness defendant’s future as re- Demouchette, parte Ex (Tex.Cr.App.1982); quired by may statute. A re- defendant Ex (Tex.Cr.App.1982); 633 S.W.2d 879 quest psychiatric or consent to a exami- English, (Tex.Cr. parte 483 642 S.W.2d concerning dangerousness nation future Chambers, parte App.1982); Ex 688 S.W. hope escaping penal- of the death White, parte (Tex.Cr.App.1984); Ex 2d 483 addition, ty. In a different situation And as (Tex.Cr.App.1987). 725 S.W.2d 262 in- arises where a defendant intends to indicate, of the this has some above cases penal- troduce at the evidence true even when the attack is been collateral ty stage.”7 by post-conviction corpus. writ of habeas appellant instant case the and his further, said, requested it has

Still been counsel had not consented to nor “[WJhere magnitude of has not an on the dan- defect constitutional examination issue of future gerousness, any had no notice that exami- been established at the time of the and purpose, nation would be used for that object of counsel not consti- failure does any psychiatric Chambers, psychologi- did not offer or parte Ex waiver.” 688 tute testimony cal at the of the J., S.W.2d, supra, concur- (Campbell, at 486 they indicated that would do so. trial nor State, 558, ring); Cuevas v. 641 S.W.2d 563 Sanders, parte (Tex.Cr.App.1982); Ex 588 opinion testimony Drs. Coons Thus the (Tex.Cr.App.1979), 383 S.W.2d cases by offered at the and Parker Bravo, parte there cited. See also Ex 702 stage of the not made .penalty trial was (Tex.Cr.App.1986). 189 This S.W.2d is now any because of consent admissible part procedural of our state default rule part of examination dealing preservation with constitutional dangerousness or because error. psy- or use testimony stage of chological any thought If is entertained reconsid- Smith is not inapplicable for the trial. question ering retroactivity purposes. those Smith, supra, Estelle basis that in fact break” with Smith Further, was a “clear of Drs. Coons past precedent practice, thought hypothetical cannot be classified as Parker effectively been the re- psy- has foreclosed or psychiatrist of a opinion decision of the cent United States has not de- chologist, who examined — Kentucky, U.S. certain and who asked assume fendant Griffin 708, 649, -, give 107 S.Ct. 93 L.Ed.2d 40 facts and to hypothetical knowledge held con- 3169 There it was that a on his of research Cr.R. based Hypo- expertise. conduct his field of constitutional rule for the ducted within new testimony would have been admis- prosecutions applies retroactively criminal thetical federal, cases, 709 sible. Vanderbilt pending 629 S.W.2d state or to all require point dangerousness does to medi- not resort Court then went on to out that 7. The Id., also experts." 101 S.Ct. at See capital 1878. the Texas murder scheme the cal under (Tex.Cr.App. 617 S.W.2d 925 jury's resolution of the future Crawford 1980), psychiat- U.S. 101 S.Ct. 69 province of cert. den. 452 is not confined to the (1981); 101 den. experts, disapproving L.Ed.2d 431 reh. 453 U.S. the use ric while (1981); Williams observed S.Ct. State, the Court inquiry S.W.2d 692 as to future 668 mandated Texas law 910, Battie, a waiver of cert. den. (Tex.Cr.App.1981); 456 U.S. there was (1982); privilege psychiat- as to Fifth Amendment 102 S.Ct. L.Ed.2d (Tex.Cr. testimony, guilt ric at least Smith 683 S.W.2d State, 691 S.W.2d trial. Under Battie does App.1984); Holloway v. bifurcated waiver, more, in the also such without survive (Tex.Cr.App.1984). See Barefoot Estelle, separate penalty stage murder 103 S.Ct. In Booker question was very trial? reh. den. L.Ed.2d Cf., not decided because the defendant took how L.Ed.2d Estelle, “advisory ever, 417 stand at the sen- v. F.2d and testified White 720 Cir.1983). tencing proceedings,” (5th and was cross-exam- using prosecutor apparently ined the testimony Drs. and Parker’s Since Coons’ given psychiatrist to with- information the dangerousness expressly on future of Estelle safeguards out the constitutional appel- their examinations of the based on Smith, supra. The Booker Court stated: lant, testimony hypo- is that of their not assuming “Yet even Booker’s state- Estelle, su- thetical witnesses. Smith v. psychiatrist] not have ments would [to inapplicable is pra, not for that reason. case, been admissible the state’s there prohibition against no is constitutional Waiver using impeachment the information for Estelle, May it be said that Smith v. York, Harris New purposes. part, supra, applicable, not at least (1971).” 1 91 S.Ct. 28 L.Ed.2d appellant Powell’s mere submis- because appellant In the instant case the did not psychological to psychiatric sion the testify not testi- and did offer purposes of determin- examinations for the stage mony penalty the of the so at insanity at the time of question must alleged the survival of the waiver be the commission of the offense? answered. Estelle, (5th Battie v. 655 F.2d

Cir.1981), submitting psychi- to a In 445 S.W.2d 732 held Brumfield Court, interpreting psychological (Tex.Cr.App.1969), or examination does not atric Article system a waiver of the Fifth bifurcated trial under constitute our itself 37.07, V.A.C.C.P., protection. Nor held that defendant Amendment’s does the privilege against may requested the have self-in- fact that defense who waives guilt stage claim under Es- by testifying at the an examination foreclose crimination Smith, supra. v. Wain- of the trial may be recalled at the telle v. Booker not 1251,1256 (11th Cir.1983); wright, stage the to assist the State penalty 703 F.2d trial Francis, (foot- Cape upon it has the proving 741 F.2d an issue which 9) (11th Cir.1984). However, Battie, Thus, proof. # the waiver note burden of Cohen, citing stage not until the United States guilt F.2d 43 did survive den. (5th Cir.) stage. has been adhered to cert. Brumfield See, e.g., Brown approved since 1969. (footnote (Tex.Cr.App.1978) and stated that “the in- S.W.2d Cohen holding in 2); Stewart # S.W.2d troduction defense of 1984), PDR ref’d a waiver the de- (Tex.App.-Dallas constituted privilege amendment fendant’s fifth in the instant case I would conclude same manner as would the' defend- against privilege appellant’s waiver Battie, testify trial.’’ ant’s election to guilt stage of- self-incrimination (Emphasis supplied.) at 702. 655 F.2d testimony on the defen- fering psychiatric he insanity upon which defense of in- sive issue Here raised the proof did not survive and (at sanity the burden the time of commission penalty stage of a offense) carry over to the psychiatrist his own and called 37.071, V.A.C. stage Article guilt trial under testify behalf at the of murder on his C.P., such waiver on the basis of so that the defensive issue which the trial on Thus, call prosecution could proof. under he had the burden psychological “In witnesses on the issue of fu- was critical ture on which it had the proving State’s burden of proof beyond dangerousness; burden reasonable doubt in Spivey, testify where did nor of- was utilized to rebut the ob- defendant’s fer psychiatric testimony viously or otherwise decisive In defense. then, privilege against instance, waive his there self-incrimina- each existed sub- case, tion at In prejudice. present the trial. stantial however, prejudice no such actu- —either

Harmless Error potential similarly al or manifest.” —is noted, As earlier it was not shown Drs. Cape Cape’s doctor’s comment on instructed, Coons and Parker were ordered sanity at the time of murder did not requested danger- to determine future address jury’s issue essential during appel- ousness their examinations consideration, by proving Cape’s sanity lant. And it was not shown that doc- proved necessary a fact not its pretrial tors made such determination on proof. burden The held that own, their when penalty but called at the prejudice Cape potential the absence of was stage gave opinion their they testimony on deprived right any not at the “critical dangerousness based on exam- their against stage” proceedings of the him and purposes. inations for other there was no violation of the Sixth and Fourteenth Amendments. Francis, 1287, In Cape v. 741 F.2d 1297 (11th Cir.1984), the Court noted that both readily The facts the instant case are Smith, supra Spivey Estelle v. and v. distinguishable Cape. from those in The Zant, (5th Cir.1981), 464 661 F.2d opinion cert.'den. testimony of Drs. Coons and Par- 1111, 3495, 458 U.S. 73 L.Ed.2d ker was critical the State’s burden (1982) 1374 heightened “illustrate the level proving special (2) issue number two at the of scrutiny given that must be claims of penalty stage of the trial —that of future sixth and fourteenth amendment violations dangerousness. only the It was arising from the introduction of testimony stage offered at that one read, testimony. The be cases cannot very jury. the issues before the Given the however, establishing an absolute rule testimony, actual use of the the which reversal in mandates instance psychological examinations were psychiatric testimony where the exceeds stage” aggre- shown to be “a critical of the scope anticipated by counsel at against gate proceedings with defense (Emphasis the time examination.” regard right to his Sixth Amendment supplied.) my opinion In counsel. harmless error dis- is of little aid to the State in the cussion wrote: Court then ease. instant must “The essence our focus be State, In 726 81

whether examination Satterwhite v. S.W.2d proved stage” (Tex.Cr.App.1986), “a this Court found no to be critical aggregate proceedings against peti- Amendment in a Fifth violation death Spivey tioner. make case where the had Both Smith murder imposed, there clear that such determination turns been but concluded under v. use of the Amendment violation Estelle actual Sixth Nevertheless, 'supra. resolves the Court ultimately trial. Such attention potential ‘whether substan- that the constitutional error was question found rights in- a reasonable doubt beyond tial harmless error prejudice defendant’s given particular heres in ... confrontation and the circumstances Grig- that Dr. help prej- question that There was no ability of counsel to avoid case. Alabama, 399 on future udice.’ v. son’s Coleman of Satterwhite 90 26 L.Ed.2d S.Ct. Wade, by Sixth error. How- quoting 396 U.S. at tainted Amendment 388 testimony, ever, the same not shown to be 87 18 at 1157. S.Ct. at L.Ed.2d

3g9 State, Duffy tainted, S.W.2d psychologist, from a murder trial. 567 elicited prior felony See also Carter v. was evidence of four (Tex.Cr.App.1978). there State, convictions, extrane unadjudicated (Tex.Cr.App.1986); other 717 S.W.2d 60 involving a shoot State, (Tex. ous offenses or incidents Fierro 706 S.W.2d pistol State, attempted use a loaded Bush v. Cr.App.1986); S.W.2d officer, against police testimony from (8) eight peace officers that defendant’s The test for harmless federal constitu reputation being a peaceful and law- tional error whether a conviction “bad,” abiding as well citizen was as the improper could have been without the guilt from trial ly evidence but “whether there is admitted Bravo jury. See which was before possibility that the evidence a reasonable State, 152 (Tex.Cr.App.1983); 627 S.W.2d might complained of have contributed State, (Tex.Cr. O’Bryan v. 591 S.W.2d Chapman California, the conviction.” Satterwhite, App.1979). In this Court L.Ed.2d 705 wrote: State, See also Jordan 576 S.W. properly conclude that the admit- “We (Tex.Cr.App.1978); Esquivel 2d such ted evidence was minds (Tex.Cr.App.1980); 595 S.W.2d 516 average jury have an would found (Tex.Cr. Clemons v. 605 S.W.2d 567 case State’s sufficient on the issue of Saylor App.1980). 660 S.W.2d ‘probability defendant would (Tex.Cr.App.1983), this Court wrote: acts commit criminal of violence Chap “To apply test out [set continuing would constitute a threat ], man necessary has found it this Court society’ testimony Grigson’s even if Dr. only not the evidence adduced consider admitted. been The admission stage, also guilt-innocence but testimony beyond was harmless error State, v. stage. Garrett punishment 632 State, reasonable doubt. Sanne v. 609 Clemons (Tex.Cr.App.1982); S.W.2d 350 762 (Tex.Cr.App.1980).” S.W.2d State, (Tex.Cr. 605 S.W.2d 571 testimony opinion In the instant case the State, Jordan v. App.1980); S.W.2d 576 only of Drs. Coons and Parker (Tex.Cr.App.1978).” 825 opinion testimony on the dangerous- future by mere question cannot answered be ness, and it tainted Sixth Amend- isolation. Har considering ly the error Satterwhite, ment error. Unlike there was Estelle, (5th 870, 876 ryman 616 F.2d no untainted same evidence (en cert. Cir.) banc), 449 den. 101 issue. (1980). The facts 66 L.Ed.2d 76 true, course, answering It is each case and circumstances of individual 37.071, special issues under Article State, 692 must be considered. Bird v. V.A.C.C.P., including the issue of future S.W.2d 65 jury dangerousness, may consider all of kept the test It in mind that must be guilt the admitted evidence at the first or only to the applies not to the conviction but stage of the bifurcated trial. Garcia well. Thus if punishment assessed as State, 46 (Tex.Cr.App.1981), 626 S.W.2d possibility that there is a reasonable State, cited; Russell and cases there 598 might evidence have contrib- error tainted Russell (Tex.Cr.App.1980); S.W.2d punish- or the uted either conviction State, (Tex.Cr.App. S.W.2d assessed, admission ment then error this, course, 1983). And would include federal consti- evidence is not harmless testimony appellant’s psychia own State, 692 S.W.2d error. Plante v. tutional on the issue of defense. trist (Tex.Cr.App.1985); Maynard v. It has been said that the circumstances John- (Tex.Cr.App.1985); 685 S.W.2d surrounding it the offense and the facts (Tex.Cr.App. son 660 S.W.2d probative may greater evidence furnish S.W, 1983). 2d See also Ford v. regarding other the sec than evidence 1984); Jordan v. (future (Tex.App.-Beaumont dangerousness) special ond State, supra. penalty stage capital submitted complained ity Since oc- that the contributed to the curred at the jury’s say I verdict. cannot that the evi- question murder to be resolved dence admitted on violation of punishment relates to “the assessed” or rights Powell’s federal constitutional con- jury’s more to the appropriately affirma- beyond stituted harmless error a reason- special to the tive answers issues which Estelle, supra; able doubt. See White resulted, law, imposi- as a matter of in the. Arkansas, Holloway v. 435 U.S. 489- tion of the death sentence the court. 98 S.Ct. 55 L.Ed.2d 426 The facts of the instant case show a

brutal, unnecessary, senseless murder of a stated, For the I reasons dissent. police performance officer in the while his official duties. The officer was shot CLINTON, J., joins opinion. by appellant

and killed with an AK-47 au- Appellant shortly tomatic rifle. thereafter TEAGUE, Judge, dissenting and apparently shot at another officer with the concurring. weapon gre- same and also threw a hand luckily explode. nade which did not There join dissenting opinion I that Presid- was other evidence as to use ing Judge Onion has filed in this cause possible drugs, lifestyle sale of and because he has stated therein what I be- instability, mental health etc. There was today lieve is the law in this State on the convictions, prior no evidence of there but Estelle v. prior unadjudicated was evidence of of- 1866, issue that is fenses. To this added the evidence was before this Court to be resolved. Notwith- tainted of the State’s doctors on standing my agreement Presiding with dangerousness. Judge dissenting opinion, Onion’s but be- Under this record the death as- Judge I cause that what McCormick believe jury’s sessed virtue affirmative majority opinion has stated and held in the special answers to the issues submitted at be, that he writes for the will soon in Court of the trial could not be least, principle at the law of the federal unusual, considered but that is not the land, Smith, constitutional Estelle v. question presented. question The is wheth- issue, agree I supra, am constrained to er or say improperly not we can that the he has and held. There- with what stated admitted evidence was harmless error be- fore, I dissent and concur. yond a reasonable doubt and did not con- tribute to the affirmative answer to the Court, majority A at least since I of this special probabili- issue “whether there is a Court, though a member of this have been ty that the defendant would commit crimi- given opportunity to decide a often nal acts of violence that would constitute a independent grounds, given issue on state continuing society.” threat Article 37.- grounds, and not on Federal Constitutional 071(b)(2), determining Y.A.C.C.P. this by the siren always chosen to be lured has question the main consideration prob- is the of the Poto- that is sounded on the banks impact average able on the minds of the mac, thereafter, fashion, lock-step in juror. Harrington California, v. uniformaly always marched to whatev- has (1969); S.Ct. L.Ed.2d 284 is located in the the drummer that er tune 683 S.W.2d Gauldin v. Building, Washington, Supreme Court (Tex.Cr.App.1984). The issue of future D.C., plays. dangerousness was one of the critical is- life, I the above fact of would Given jury penalty stage, sues before the delay handing majority down the further only and the tainted evidence was the medi- Supreme until the opinion in this cause opinion cal and offered on that finally decides of the United States Court which the State had the burden — -, Texas, conclude, proof. though I must reluc- Satterwhite tantly, possibil- that there was a reasonable States, United Supreme

The Court majority SOFFAR, notwithstanding Appellant, the fact that a Max Alexander Court, affirming judgment in in 726 S.W. conviction Satterwhite Texas, Appellee. STATE (Tex.Cr.App.1986),only gave the de 2d day little more than the time fendant No. 68907. su opinion in its on the Estelle Texas, Appeals of of Criminal issue, granted to review pra, has certiorari En Banc. and held Satter- what this Court stated State, supra, concerning Estelle white v. Sept. Smith, supra. cannot, course, exactly predict

I what state and hold Supreme Court will However, Texas, supra.

Satterwhite aggressive and

given what that Court’s majority has done the field

assertive “Burg-

criminal law to defendants since existence, into and its

er Court” came day changed,

make-up has not since Greek, though I no Jimmy

and even am predict I it will

I believe that can what will,

generally prin- do on issue. It least,

ciple state little more than what

Judge already McCormick has stated

held, it in the ex- although could extreme

pressly overrule its decision of Estelle

Smith, supra, because that rights to the of the accused and

sensitive abuses, present

insensitive to state majority

aggressive and assertive appear to like to Court does not are insensitive to

hand down decisions that

government or state abuses in the field of law.

criminal

Thus, majority of this Court because today majority down

votes hand McCormick, Judge

opinion by and because Judge firmly

I believe that what McCor principle

mick has stated and held Supreme Court of the United

what ultimately will state and hold on the

States issue, supra,

Estelle Satter Texas, major supra, and because

white long opted to follow

ity of this has Court stated and held

what the Smith, supra, I am constrained

Estelle v. agree and held. with what he has stated notes may consider evidence have during phases of this case as heard both mitigate impair may the same or David “The that a State contends however ability to conform his acts Lee Powell’s psychi- defendant’s mere submission to a though mitigating the law even such psychological atric or examination consti- insanity may not be as herein be- facts tutes a waiver of the fifth amendment you.” fore defined in- privilege. But the waiver doctrine is here, applicable, as when the defendant exactly the same situation this in an- This is are further instructed that “You you Penry swering questions required of found in the case may charge, you all of the consider Pen- S.W.2d in the initial you which heard the issue of insani- ry, evidence the defendant raised relating phase to the Defend- phase of this case and reintro- ty guilt-innocence insanity; or not the guilt-innocence ant’s and whether duced all of the (sic) proofs by preponderance Judge same stage. Tom punishment at evidence, capacity.” diminished following: Davis wrote the jury argument of “It is clear from the attorneys they appellant’s wanted you preponderance from a “Do find jury to reconsider of the testimo- all knowledge the intent or the evidence that ny to the relevant terms have heretofore been de- defense as those punishment stage, and wanted you of David Lee by the Court for fined it as ‘each of those jury to consider May was diminished Powell on special It is also clear from issues.’ amphet- psychosis, methane toxic appellant’s reading of the record that (sic)? yes no.” amine-induced Answer jury arguments and reintroduction Second, during closing argument at the guilt-innocence phase were trial, phase punishment response of Peebles to the following argument: attorney made the experts]. Yogtsberger State’s [the we talk “But when about Rather, ap- throughout the entire just really you if testimony, I wonder history of pellant heavily relied on his thing. Dr. Coons missed the whole [the instability. mental years experience; Dr. expert], four appellant raised the issue “Since twenty Tenay expert], years defense [the guilt-innocence insanity at the Coons, Dr. histo- experience; no medical hearing punishment the trial and complete ry patient; Tenay, Dr. issues, special respect to with all of Coons, history; no forensic medical Dr. effec- including dangerousness, he (sic); maybe in homicide medicine tively his Fifth and Sixth Amend- waived around a little heard a lecture and been rights complain about the future ment such; Tenay, no but courses as

Notes

notes formal

Case Details

Case Name: Powell v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 8, 1987

Citation: 742 S.W.2d 353

Docket Number: 67630

Court Abbreviation: Tex. Crim. App.