*1 persons? wrong trying implied any suggestion unusual What upgrade the criminal defense None indigent might bar? client make as to how to an Burger, recently other than Hon. Warren defend his is “absurd and nonsensi- case Court, Supreme of Chief Justice cal,” attorney and for the to execute leading lawyers has been critic of trial suggestion by might client that be con- of these He United States. maintains attorney to sidered “bizarre” causes the large numbers of the of our trial bars “stultify prostitute profes- himself or unqualified incompetent States are sional standards.” Williams United cases, try years suggested I ago “Ten that States, 733, (D.C.App.1965) F.2d up lawyers to one-third or one-half of the C.J., (Burger, concurring). coming really into our courts were not standard, my proposed Under the defend- qualified adequate represen- fully to render ant, course, of would have to establish a Burger, “The State of Jus- tation ...” See prima of of facie case ineffective assistance tice,” 62 American Bar Association Jour- by showing specified counsel of acts 62, 64, points nal which he out that attorney commission or omission might fig- high; have been too the correct by the would be considered erroneous aver- being percentum. ure 25 or 30 Also see age lawyer. criminal Once this has been Burger, Special Advocacy: “The Skills accomplished the State would then have Specialized Training Are and Certification proving burden of that either no actual System of Advocates Essential to Our prejudice attorney’s resulted from the inef- Justice?”, (1973). 42 Fordham L.Rev. 229 fectiveness, er- or that such was harmless Burger Chief Justice also maintains that ror. “the behavior of some of the more visible reasons, respectfully I For the con- above advocates not such as to reflect credit on majori- cur the result but dissent profession.” our Burger, “The State of locking ty’s taking wrongful step Justice,” He, course, op. cit. does not persons courthouse doors to those who lawyers represent that trial believe should they de- seek relief because have been their clients to the fullest extent allowed prived effective assistance of coun- “Historically, lawyers law: com- honorable at their trials. sel plied with traditions of the bar and re- doing frained from all that the law or the But,
Constitution allowed them to do.”
one who large believes that there is such a incompetent
number of members of our States,
trial bars these United isn’t it strange
rather
that the former Chief Jus-
tice did not dissent in Strickland v. Wash-
SATTERWHITE, Appellant,
T.
John
however,
ington, supra. Perhaps,
it is eas-
up
public
ier to hold the trial bar
ridicule
Texas, Appellee.
The STATE
contempt
with references to such as
“procurers,”
guns,”
“hired
and “huck-
67220.
No.
sters,” as he has been known to do in the
Texas,
Appeals of
of Criminal
Court
past,
Shrager, “Response
see
to Chief Jus-
En Banc.
Trial,
Burger:
Page,”
tice
President’s
April,
No.
than it is to mandate
Sept.
1986.
that members of the trial bar be more
Certiorari
in Part
Granted
for their actions and omissions.
accountable
1, 1987.
June
course,
Burger
Of
former Chief Justice
See
“absence of counsel at the acting
voids a conviction” was in a bizarre “Disneyland” fashion. He has also
«3 *3 Takas, Woods, Stephen P. Richard D. Antonio, Court-appointed, for San lant. Harris, White, Atty.
Bill Dist. and Bill M. Jr., Barrera, Battaglia, R. and Alan E. Roy Antonio, Attys., Dist. San Robert Asst. Huttash, Austin, Atty., Therefore, State’s necessary for the it is that the accused State. purposeful show an intentional discrimi
nation in the enforcement of the statute
against
A discriminating purpose
him.
will
presumed;
not be
showing
of clear inten
required.
tional
discrimination
Armen
OPINION
State,
dariz v.
(Tex.Cr.App.
DAVIS,
1975);
Judge.
State,
W.C.
Kresge
S.S.
Co. v.
546 S.W.2d
Dallas, 1977);
(Tex.Civ.App.,
X
Super
appeal
This is an
from conviction for
Texas,
Drugs
Inc.
505 S.W.2d
offense of
punish-
murder. The
Houston,
(Tex.Civ.App.,
1974);
Enntex
isment
death.
Nevada)
Oil
(of
and Gas Co.
contends
the trial
Texarkana,
(Tex.Civ.App.,
overruling
court erred in
his motion for
1977).
has failed to show
trial.
new
He asserts that the State selec-
*4
purposeful
actual or
His
discrimination.
tively
against
discriminated
him violation ground of error is overruled. Also see
process
the due
equal protection
of
(5th Cir.1979);
Hayes,
U.S. v.
In order to establish a constitu
Q. Now, you
people
heard
have
talk
prosecution
tional violation
the selective
presumption
about
innocence. The
defendant,
necessary
it is
to show
presumption
every
innocence
application
unequal
more than mere
of a
presumed
prov-
innocent until
Supreme
statute. As the
Court
state
stat
guilty,
you
en
understand
do
that con-
Boles,
Oyler
82 S.Ct.
ed
cept
you
you
do
believe
understand
(1962):
«5 your tution of the State of Texas and United THE COURT: What was an- says States of I America am innocent swer? they
and until lift that cloak of inno- quite THE Yes. I don’t WITNESS: competent cence fair and evidence. saying. understand what you any quarrel Do have with that if I THE COURT: Let me see can concept? little, help you a Mrs. Corderman. telling A. You are me that in other BY THE COURT: you your- words don’t have to defend Q. prove The Defendant doesn’t have to self. his about innocence. We have talked Q. quarrel If you say have a with that presumption of innocence. My quarrel it. mother has a with it. Right. A. Well, guess I I I A. do. I don’t know if Q. proving The State has the burden quarrel, would call but— guilt they put which means have to Q. you against Do have a bias the law on the He doesn’t have to evidence. says that the Defendant does not put anything. If he and his attor- to defend have himself? neys it’s just think better for him to sit again, guess maybe A. There I I I do. do, they there and see what the law thought haven’t about that. permits him to do that and must Q. your reach Okay. verdict based on the evi- offered, dence that is not the evidence challenge
MR. TAKAS: We that is not offered. cause, Judge. prejudice Bias or exists *5 IA. think I can make a decision. theory on the basic of law. (cid:127) Judge, MR. TAKAS: I don’t think you THE COURT: Do to in- wish quire? is a correct statement. Yes, THE I MR. COURT: will overrule HARRIS: sir.
BY MR. HARRIS:
ON BEHALF
Q. There are
those
tions of the witnesses
fendant can defend himself. One of
being cross
real
the United States Constitution
[*]
question
ways
[*****]
can be
OF
examination.
a number of
is the 5th Amendment to
THE
merely asking ques-
STATE
against
I
ways
think the
him,
says
a de-
Article
A
the defense for
sons:
challenge
tion.
challenge
ruling it.
challenge
[*]
MR.
35.16(c)(2),
TAKAS:
[*]
for cause and
for cause. You
for cause
any
supra,
[*]
Note
[*]
provides:
may
my exception
following
you
be made
[*]
may ques-
are over-
[*]
rea-
for
(2)
shall
required
testify
prejudice
not be
to
That he has a bias or
against
against any
applicable
himself or offer evidence
of the law
against
himself.
case
which the defense is entitled
rely,
to
either as a defense to some
you
What that
in-
means is
will be
phase of the offense for which the
structed
a case
where
defendant
being prosecuted
defendant is
or as a
testify, you
does not
are instructed
mitigation
punishment
thereof on the
not,
you
cannot and must
first
thereof.
all,
says you
are instructed that the
Defendant in this case has elected not
In order to determine if a venireman was
testify.
you
to
You are instructed that
cause,
subject
challenge
to a
for
must
we
you
must not and
cannot consider that
given by
testimony
examine the
the venire
any
against
as
evidence
him. The
entirety.
man on voir dire
its
Evert v.
testify.
mere fact that he did not
Do State,
«7
6701d, 186, supra,
appellant improp
category
workable rule this
of cases
§
6701d,
75,
erly stop the vehicle.
requires
Art.
as we read Chimel’s definition
§
Therefore,
supra.
the officer
of the
may
was autho
limits of the area that
be
stop
light
generalization.
rized to
searched in
of
vehicle and arrest
person
Accordingly,
committing
police
found
we hold that
the traffic of
when
6701d, 153,
man has made a
supra;
fenses. Art.
lawful custodial arrest
Art. 14.-
§
01(b)
automobile,
occupant
may
Furthermore,
of an
he
V.A.C.C.P.
since Offi
contemporaneous
as a
Jackley
cer
incident of that
had seen the commission of a
arrest,
passenger compart
search the
traffic offense other than the offense of
ment of that automobile.
speeding, he,
arresting
in addition to
appellant, was
appel
authorized
take the
We conclude that Officer Jack-
custody.
State,
lant into
Christian v.
592 ley’s search of the vehicle was a search
(Tex.Cr.App.1980)
(opinion on incident to arrest and was therefore lawful.
rehearing,
784,
cert. denied 446 U.S.
100 Furthermore, we believe that even if the
2966,
(1980);
S.Ct.
custodial arrest
occupants.
of its
grounds
has reasonable
believe that
will
When a
know
ring
[*]
apply
factual
person
scope
[*]
situation,
settled
cannot know how a court
of his
[*]
principle
constitutional
[*]
[*]
to a recur
cannot
[*]
pro
person
search
ous, only
is in
In the
danger
exist. Lewis v.
he encounters is armed and
case
then will
at
bar,
bodily
justification
harm or that
evidence reflects
supra.
for such a
danger
that the officer had reasonable
tection,
policeman
nor can a
know the
danger
bodily
believe that
scope
authority.
of his
While the Chi
injury and the limited search was conduct
mel
California, 395 U.S.
89 S.Ct.
[v.
solely
protection.
light
ed
In
his own
(1969)
corroborate the of the accom- opened register The deceased the cash plice witness, placed Sharon Bell. The money the paper a sack. The occurred, instructed if that an offense Bell deceased volunteered that there was accomplice was an money a matter law. more in the vault. The three went opened where the vault the deceased the 38.14, V.A.C.C.P., provides: Article placed vault and the contents the sack A conviction cannot be had the tes- and handed to Bell. Bell then headed for timony accomplice of an unless corrobo- area, the door. When she left the vault the tending rated other evidence to con- appellant pointing gun the towards the nect the defendant with com- the offense temple. deceased’s leaving As she was the mitted; and the not corroboration is suf- store heard the she ask the deceased merely ficient if it shows the commission lant shoot her. She then heard two of the offense. gunshots. got or three pair in the car In applying the statute to the cases where left. When she the asked sufficiency of the evidence to corroborate her, why shot he stated he did not want the accomplice challenged we eliminate to leave witnesses. from consideration the evidence the ac day, appellant, Later that the with his complice witness and other examine the Bell, brother and went to a car rental. The evidence to ascertain whether there is in- vehicle used in the offense was rented and culpatory tending to connect the they exchanged returned it and it for a the defendant with commission the of Cougar. gave brother State, fense. v. Moron 702 624 S.W.2d cash the robbery from to rent the vehicle. State, (Tex.Cr.App.1985); Cruz 690 S.W.2d (Tex.Cr.App.1985); Bell, 246 following appellant, Brown v. On the day State, 672 (Tex.Cr.App.1984). companion S.W.2d 487 Seguin. and a They went to State, Rice (Tex.Cr.App. S.W.2d 689 drop returned to San off Antonio to 1979) (opinion on rehearing); companion attempted Carrillo v. and then to return to State, (Tex.Cr.App.1979); Seguin. S.W.2d Bell trip, stated that on the return (Tex.Cr. Shannon v. they stopped by police officer were a App.1978); pistol robbery Edwards v. 427 S.W.2d the used in found. police Bell told pistol later was hers subsequently and was convicted of unlaw- case, Bell, In Sharon carrying fully weapon. testified She accomplice, morning testified that on gun police she told that the hers so 12, 1979, March she and the go of them would not have to both drove to Lone Star Ice and Food Store. trial, jail. gun At Bell denied pair got entered the store and Bell belonged to her. Coke. She asked the deceased about some teething medicine and Robitussin ba- been Bell admitted she had convict- inside, they bies. While were Bell noticed ed of offense of with malice in murder another customer. The told customer also 1974. She stated that she was convict- if anything deceased that she needed ed for theft and was fined. painting would be around the corner. The non-accomplice evidence reveals that man left. also Bell noticed that another offense, day Aaron Archter- customer, male, young Mexican-American berg to the store 9:00 a.m. He went before
came and left. bought seventy-nine testified that he cent *8 left, appellant ap- sponge. After he the Bell It was that the and later shown next proached register cash purchase appearing the the de- on the cash where last standing. register tape seventy-nine ceased for was Bell asked two was for cents. packages cigarettes. painting three of Kool The He about a and a half was block counter, placed them away deceased on the from the store. He stated saw a whereupon appellant pulled pistol the a the identified couple in store and he the out, pointed deceased, appellant it at the and de- as the male. He stated that also manded in- give money. that the deceased him he had identified the female and was pistol formed type that her name was Sharon Bell. weather. The was same and He also stated that Bell remembered contained same number serial as the purchasing purchase or was about one Officer by Jackley. Subsequent found cigarettes green which were in a and white revealed that package. mother’s name was Lillie Merriweather. Rodriguez Kenneth that he testified visit- Two bullets were recovered from the de- ed the store around 8:35 to 8:40 a.m. He expert A body. ceased’s balistics testified saw the deceased and a inside couple pistol that the were from the bullets fired appel- store. He identified the as the male Jackley. seized Officer lant. He heard the female ask Robitus- non-accomplice testimony The couple sin. The were still there after he sufficient testimony. to corroborate Bell’s left. non-accomplice testimony places The Josie Jeffries testified that she visited appellant crime at the scene of the with the the store around 8:30 she a.m. When went deceased time she seen was last alive. in, register she noticed that the cash (Tex. See Ayala S.W.2d open empty. keys and She also and noticed Cr.App.1974), 930; cert. denied change on package the floor. There awas State, supra. appellant The Edwards v. cigarettes of Kool on the counter. She and accomplice and the in were found be persons other who had entered the store weapon possession the murder their store; began they to search the found attempted journey from San Antonio to shot, deceased, in the bathroom. Seguin may flight. be considered as See Juan Ramirez stated that he entered the State, supra. The Edwards v. evidence store around 9:00 a.m. He that stated presented showing is more than mere deceased not there and that after other that an offense occurred. It is not neces people arrived, they They looked for her. sary non-accomplice evidence di police subsequently found her and the were rectly appellant link the to the crime or be. called. guilt. Rather, all sufficient for that is re police Various officers stated after quired non-accomplice is that the they they received a radio call went tend to connect with offense Lone Star Ice and Pood Store. earliest non-accomplicetestimony committed. The any of them heard the call radio was 9:10 was Sharon sufficient corroborate Bell’s They a.m. found the deceased with close appellant’s ground of testimony; the error range bullet of her wounds each tem- is overruled.
ples. They open. found also the safe in his next two Aric Howorth testified on March error asserts the trial court erred he rented an automobile to Joe Satterwhite. requested jury when it denied On the afternoon of March 12 Joe Satter- requested instructions instructions. brother, appel- white with his returned they would instructed the that if have lant, exchanged the first car for a blue Bell deceased in found that Sharon shot the Cougar. He stated that conspiracy furtherance of picked out the also automobile. He stated aggravated robbery, they lant to commit paid that he cash. appellant guilty of the should find the of- Jackley that on Officer Mark testified However, they if capital fense of murder. stopped Cougar March 13 he a blue driven murder deceased found that the of the pistol the appellant. He found in the Sharon Bell an act of her own volition glove compartment of the vehicle. conspir- the furtherance acy, guilty February they Eva should find him not Castillo testified that 29, 1979, charges pistol requested Lillie she sold Merri- murder.1 March, 1979, County, requested day 1. The as in Bexar instructions were follows: 12th Texas, alleged Now, therefore, in the that Shar- indictment if find from the evi- defendant, John T. beyond on Rene Bell and the Sat- dence a reasonable doubt that on the *9 were instructing fact jury on the and charge Bell. A on a defensive theory issue of whether killing was on an only required is when the evidence raises independent impulse Bell, by and not issue. Lopez v. furtherance conspiracy ag- to commit (Tex.Cr.App.1978). Furthermore, the evi- gravated robbery. Code, V.T.C.A. Penal presented dence at trial of 7.02(b) provides that: § conduct alone was sufficient to sustain the If, in attempt carry out conspir- conviction; charge no independent on im- acy to felony, commit one another felony pulse Bowers v. necessary. is by committed conspirators, one of the S.W.2d 929 (Tex.Cr.App.1978); McGuin v. all conspirators State, 505 S.W.2d guilty are felony of the actually committed, though having no in- The trial court did refusing not err in ap- it,
tent to commit if the offense was pellant’s requested jury instruction; committed in furtherance of the unlawful grounds of error are overruled. purpose and was one that should have The appellant also contends that the trial been anticipated as a result carry- court instructing erred in jury on the ing out of conspiracy. parties. court, law of The trial over However, before charge such a given, is objection, gave lant’s an abstract instruc- there must be evidence before parties tion on the defining law of criminal raising the issue. responsibility according to V.T.C.A. Penal In the Code, 7.02(a)(2).2 case there is no The trial court then § evidence that Bell did the killing. applied actual the law to the facts in the instruc- Additionally, there is no evidence that a tion. The claims that there was conspiracy existed between the no presented which raised that fendant, terwhite Satterwhite, had entered attempt- into and were say by your John T. and ing carry conspiracy out a guilty to commit the capital verdict not of the crime of mur- aggravated robbery crime of as those terms der and then determine whether or note [sic] defendant, you have been defined guilty and that Sharon of some other offense Rene Bell attempting you. was then and as herein there defined to carry conspiracy you out said You are between further instructed that if herself and find defendant, Satterwhite, foregoing (referring you John T. facts and direct charge parties further find that Sharon Rene Bell an offense who in the did then gun conspiracy and commission intentionally there with a of one commit anoth- shoot and conspiracy) beyond er thereby kill and Mary reasonable doubt ex- cause the death of Davis, evidence, cept you you you Frances find from the or further find that said thereof, have a reasonable doubt offense of that in kill- murder was so committed Shar- ing MARY FRANCES DAVIS said SHARON on Rene Bell in furtherance of the unlawful acting RENE BELL purpose outside of the com- Sharon Rene Bell and the defend- ant, plan design Satterwhite, mon of SHARON RENE John T. and was one that BELL and JOHN T. SATTERWHITE or that anticipated should have been as a result of killing said carrying was not in the furtherance of the conspiracy out of their to commit purpose design common aggravated of both SHAR- robbery, the offense of you then ON RENE BELL and JOHN T. SATTER- guilty will find the defendant of the offense of WHITE and that JOHN T1 capital SATTERWHITE you murder. If do not so find or if knowledge had no thereof, the intent of SHARON you you have a reasonable doubt will killing RENE BELL or that said was not one acquit him. anticipated by that should have been the said you You are further instructed that if find you JOHN T. SATTERWHITE then will find foregoing beyond facts a reasonable doubt murder, guilty the defendant not from the evidence that the offense of murder proceed and then to determine if the Defend- actually separate committed act of guilty ant is of some lesser included offense. acting separate Sharon Rene Bell of her own volition, you or believe or have a reasonable 7.02(a)(2) provides 2. Sec. as follows: doubt part that such offense of murder on the person criminally responsible A for an of- of Sharon Rene Bell in furtherance of fense committed the conduct of another if: original purpose unlawful of Sharon Rene ****** defendant, Satterwhite, Bell and the John T. (2) or was not such an offense as should acting promote have with intent to or assist the anticipated offense, solicits, been carrying as a result of the commission of the encour- directs, aids, aggra- out of the ages, commission of the crime of attempts to aid the other robbery, offense, acquit
vated
will
the de-
to commit the
...
*10
issue and
improperly-
Bexar,
that the trial court
of
Texas,
of
State
on or about the
resulting
included the instruction
in harm
March,
day
12th
of
committed or
appellant.
to the
attempted to commit the offense of rob-
bery and that
in the course of
However a review of the record reveals
furtherance of or in
flight
immediate
that the appellant
Requested
in his
Instruc-
from the commission or attempt to com-
tion
requested
No. 10
following
that the
mit
robbery,
any,
the offense of
if
given:
instruction be
defendant,
Satterwhite,
John T.
did or
you
Beftíre
are
convicting
warranted in
attempted
participate
in the offense of
murder,
the defendant of capital
you
robbery knowing
partici-
that one of the
beyond
must find
a reasonable doubt
pants
robbery
possession
to the
was in
of
12, 1979,
that on March
that the defend-
gun,
clearly
and that this act was
dan-
ant,
Satterwhite,
alone,
John T.
either
gerous
life,
was,
to human
if it
and did
offense,
party
as a
to the
or in the fur-
thereby
Mary
cause the death of
Frances
conspiracy
therance of a
to commit a
Davis,
did,
you
if it
offense,
then
will find the
felony
as those terms have been
murder,
guilty
you
defendant
but if
you,
above defined to
do
engaged
was
in the
find,
you
not so
or if
felony
commission of the
have a
offense of rob-
reasonable
thereof,
bery, and also
doubt
during
you
will find
commission of
the defend-
robbery,
defendant,
guilty
John T.
ant not
of murder and
pro-
Sat-
next
terwhite,
alone,
either
party
as a
ceed to determine if he
guilty
any
offense, or in the furtherance of
con-
lesser offense.
spiracy
offense,
felony
commit a
inten-
requested
The instruction
by the
tionally
deceased,
shot
with the inten-
essentially
the same as the
thereby killing
tion of
her.
given
instruction subsequently
by the trial
Therefore,
you
unless
find from the evi-
appellant’s
court.
also note
We
Re
beyond
dence
a reasonable doubt that the
quested
Instruction No. 1 and No.
dis
defendant, on the
in question,
occasion
previously,
cussed
also dealt with the law
alone,
either
or as a party to the offense
concerning criminal responsibility. Two
robbery,
or in the furtherance of a
additional
requested by
ap
instructions
conspiracy to commit the offense of rob- pellant
parties.3
involved the law of
We
bery, specifically intended
kill
the said
error,
therefore conclude that
if any, in
deceased, Mary
Davis,
Frances
when he
instructing
parties
on the law of
her,
did,
shot
if he
you cannot convict
requested
was waived
in
him of the
capital
offense of
If
murder.
Appellant
structions.
cannot be heard to
you
doubt,
you
have
reasonable
must
complain
given about instructions
find the defendant not guilty of the
trial court where it is essentially the same
of capital
crime
murder.
charge
requested by
appellant.
are, therefore,
You
you
instructed that if
ground
This
of error is without merit.
find and believe from the evidence be-
yond
Additionally,
a reasonable doubt that the defend-
we note that as the
ant,
Satterwhite,
John T.
County
in the
evidence of
conduct alone was
appellant’s Requested
3. The
ipated
carrying
Instruction No. 2
as a result of the
out of the
requested
following
given:
robbery,
any,
you
instruction be
offense of
if
will find
defendant,
Satterwhite,
guilty
John T.
you
You are further instructed that if
find
offense
murder and then next
evidence,
from the
or have a reasonable
proceed to
doubt,
determine from the evidence
based from the evidence that the of-
defendant,
whether or not the
John T. Satter-
actually
fense of murder committed
white,
guilty
lesser included offense.
defendant,
separate
act of the
John T.
Requested
requested
His
Instruction No. 7
acting
separate
Satterwhite
tion,
of his own
voli-
following
given:
believe,
instruction be
or have a reasonable
doubt,
presence
Mere
at the scene of a crime does
that such offense of murder on the
sufficient,
defendant,
Bell,
part
standing by
not
itself,
of the other
constitute conduct
Sharon Rene
original
criminally responsible
was not
in furtherance of the
make a
unlaw-
purpose
part
ful
of both the
as a
Defendants and
to an offense for the conduct of
not such an offense as should
been antic-
have
another.
conviction,
(1972).
sufficient
to sustain the
no
The Court stated that defense
charge
parties
required.
given
Todd v.
counsel was not
advance notice that
*11
encompass
examination would
the issue
charge
appellant’s guilt
made
dangerousness,
contin- of their client’s future
and
gent
finding
on a
committed the
that Smith “was denied the assistance of
acting
offense either
party.
alone or as a
his
in
attorneys making
significant
de-
Because the
was
cision
authorized to convict
of whether to
to
submit
the examina-
appellant
alone,
acting
if it found he
tion and to
psychiatrist’s
was
what end the
find-
any
ing
employed.”
error was
could be
harmless. Todd v.
Smith did not
counsel,
supra.
ground
waive
therefore
of error is overruled.
the admission of
Grigson’s testimony
Dr.
violated his Sixth
Appellant
ground
in his next
of error
right
Amendment
to assistance of counsel.
argues that the
in
trial court erred
admit-
In
appellant similarly
case
ting into
testimony
psy-
evidence the
of a
argues that
chiatrist,
both his Fifth Amendment and
Grigson, during
punish-
Dr.
rights
Sixth Amendment
were violated
phase
Appellant
ment
of the trial.
main-
Grigson’s testimony.
admission of Dr.
testimony
tains that
was obtained in
Before we address the Fifth Amendment
rights
guaranteed
violation of his
under
appellant’s
issue we conclude that
Sixth
Fifth, Sixth,
and Fourteenth Amend-
right
Amendment
to
assistance
counsel
ments to the United States Constitution.
was violated.
Appellant
upon
relies
the recent decision of
Supreme
the United States
Court in Estelle
question
The offense in
occurred
Smith,
454,
1866,
v.
451 U.S.
101 S.Ct.
1979,
12,
appellant
on March
ar
was
(1981),
Grigson
L.Ed.2d 359
in which Dr.
rested on March 13. On March 15 or 16
again
during
punishment
once
testified
appellant
charged
capital
was
murd
phase
Grig-
of a
murder trial. Dr.
Grigson
er.4 Dr.
testified that on March
only
present-
son was the
witness the State
19,
order,
pursuant to a court
he attempted
during
punishment
ed
phase,
in which
appellant.
to examine
He was unable to
appellant
stated that the
was a socio- conduct the examination at that time but
path
continuing
society.
and a
threat
May
did examine the accused on
3. The
37.071,
Grigson’s
See Art.
V.A.C.C.P. Dr.
in
record does not contain a court order
testimony
was based
an examination
structing
Grigson
appellant.
Dr.
to examine
of Smith while he
in custody.
was
Smith, appellant
As in Estelle v.
had al
Supreme
Grigson’s
held that Dr.
Court
tes-
ready been indicted
this examination
when
timony
prior
was inadmissible because
Thus,
right
place.
took
to assistance of
examination,
doctor’s
appellant
Illinois,
had
Kirby
counsel
attached.
not informed that
statement he made
right
supra. While the attachment of that
against him
could be used
and that he had
appellant
does not mean that
had a consti
Thus,
right
to remain silent.
the state-
right
actually
tutional
to have counsel
psychiatrist
ments made to the
were not
examination,
present during the
Estelle v.
freely
voluntarily given
Smith,
and were
supra,
it does mean that
privi-
therefore obtained in violation of his
attorneys should have been informed
lege against
examination,
self-incrimination. See Mi-
encompass
an
which would
Arizona,
436,
dangerousness,
randa v.
384 U.S.
86 S.Ct.
the issue of future
(1966).
Additionally,
place.
Bill also of Jurek v. su- attorney’s the district office, pra, testified that he stated had he was U.S. at S.Ct. at 2958. That is not familiar case in file this not say terms those constitute standards May. middle of particular tests which to assay error, just they more or Appellant contends that this evidence is less understanding to an contribute sufficient to establish State was against what guard coming to an ready for trial within the time limits ultimate required 32A.02, conclusion that the State by Art. has supra. We do not agree. shown put itself entitled to citizen death.
An
ready by
announcement of
prima
showing
the State
ais
facie
of com
errors,
specific grounds
Aside from
pliance
Speedy
with the
Trial Act. Fraire
aspect
me there is an
of this cause that is
(Tex.Cr.App.1979);
most
punishment
troublesome:
that at
tes-
(Tex.Cr.
S.W.2d
Barfield
App.1979). However,
timony
“expert”
of an
in such matters is
may
the defendant
presented
violation
showing
rebut such a
by presenting evi
right
lant’s constitutional
to assistance of
dence that
demonstrates that
State was
My
go
counsel.
concerns
the heart of the
*14
ready
not
during
for trial
the time limits of
jury,
guilt
verdict of the
the first on
the Speedy
State,
Trial Act.
v.
Barfield
punishment.
both on
supra. Here, the evidence is insufficient to
Grigson, M.D.,
ubiquitous
James P.
rebut
readiness;
State’s assertion of
fashion,
testified in
own
his
inimitable
now
nothing in the record indicates that
every
well
experienced practition-
known to
State
proceeded
could not have
to trial dur
capital
er in
“in light
cases. To find that
ing the required time limits. Calloway v.
presented,” admitting
other evidence
State, 594
(Tex.Cr.App.1980);
S.W.2d 440
expert opinion
literally
on what is
a matter
Compare
State,
v.
Pate
of life or
does
death
not amount
reversi-
(Tex.Cr.App.1980). Appellant’s ground of
startling.
ble error is
error is overruled.
18,
Chapman
California,
U.S.
386
87
We have also considered the
824,
(1967),
S.Ct.
2. For one while the A search or issue turn on seizure will what approving overruling reach the correct result in actually premises. did in the Unless he makes a appellant’s suppress, reasoning motion to in its arrest, (see lawful custodial Belton v. New York particulars faulty. enough some is It is not TEAGUE, Judge, dissenting. reading, Jackley Based the radar pursued then the vehicle later shown be For those readers with unfamiliar appellant stop driven in order to City Oak, Texas, location of of Live speed- and presumably give appellant highway map official of that I travel Texas ing ticket, being permitted with him then have contiguous reflects that it is to the proceed way. on his City Antonio, of San and its lie boundaries however, appellant, stop did not his (east). on both of sides Interstate 35 and, vehicle not reasons reflected Selma, City December, well known see record, grassy this cut over into the median November, 1974 and 1976 editions of Texas separating area the north and lanes south Monthly, contiguously is located stopped he then Interstate where his east of Live Oak. Jackley vehicle. Between the time when The record reflects that on March put warning lights, on as his well when p.m., at 10:17 o’clock Live Oak Police using spotlight, appel- he was his until the Jackley “working Officer Mark radar” vehicle, lant his stopped there much 35, presumably being on Interstate on the vehicle, movement inside of the “speeders” might lookout for who then be occupied by appellant which was then driving posted in excess of the speed limit passenger, appel- and a female both the per of 55 miles territory hour. Given the passenger. lant and The appellant his then terrain, Jackley and the did not have to got driving out of the vehicle he was wait long speeder. Jackley to catch a Jackley’s walked to the rear of his car. speed clocked the vehicle parked vehicle then behind the shown be driven at 82 Jackley lant’s approached vehicle. After per miles hour. vehicle, the fe- ordered 6701d, 166(a), V.A.C.S., Art. provides § passenger male to remove from herself no shall drive a vehicle on a car, Jackley “patted she which did. then highway speed greater at than reason- pas- down” both and his female conditions, prudent able and under the hav- senger weapons.” weapons “for No were ing regard potential to the actual and cir- license, found. When asked for driver’s cumstances, However, existing. then driv- produced temporary driv- ing speed a motor vehicle aat rate of “Bobby er’s license the name Ted posted speed excess of the only limit shall appar- Satterwhite.” driver’s license prima be speed facie evidence that the ently any suspicion not arouse did prudent reasonable or and thus unlaw- During time, part Jackley. this the fe- ful. passenger moving male started toward door, but, driver’s side of the first after statute, however, Section 148 of pro- disputing Jackley’s stop, command she speeding vides that the offense of shall be order to complied return to only making offense in our traffic laws the rear the vehicle which she had been mandatory issuance of a notice written *16 riding appellant The also in. commenced court; thus, appear to in police may the but, getting Jackley, to com- closer not, offense, custody for this take into the mand, he off. backed gives if he promise accused his written to court, appear circumstances, by signing duplicate in in the Given the above facts and by reasonable, written notice prepared arresting appear prudent the it would that a have, exceptions, ap- police got officer. Two which are officer would when he the before, plicable facts, speeding appellant’s stopped, to our are if vehicle if not the unit, police back-up vehicle is a radioed country licensed in state or called for a or speeding possible other than Texas if the for law en- or vehicle assistance other agencies, is being Depart- driven state as a resident of a or forcement such the country patrols Safety, other than Texas. ment of Public which also (Tex.Cr. 86), majority opinion, applicable, and to. at is not Linnett App.1983).
there be no can search seizure incident there However, Jackley this location. did the facts and no Given circumstances issue, thing. such went to the I find that this kind of legal thinking reasoning prepos- and instead, Jackley, notwithstanding the cursory terous and outlandish. Given a previous suspicious ap- movements reading majority cases cited the the pellant passenger, and his decided then opinion support position, they its will search the interior of the vehicle that support holdings. simply not its appellant driving. Jackley had been While majority opinion does not end its seats, looking weap- the car “for under legal thinking reasoning ridiculous and at ons,” appellant passenger both and his point; plods this forward and erroneous- moving started closer toward him and Jack- ly Jackley holds that had reasonable ley order twice had to them to back off to danger in to believe that was car, they the rear of the which did. Jack- injury, giving right him bodily thus ley, strange actions of undaunted complete interior of conduct search of the appellant passenger, his continued vehicle, “solely pro- the motor for own searching the inside of the car. He even- majority opinion tection.” The concludes: got glove compartment tually justified believing officer “[T]he same, presumably opening after with his danger.” facts and cir- Given the passenger, and his back to the Jackley cumstances of what occurred after pistol, found therein a which was later vehicle, stopped this conclu- weapon. murder shown to be the totally sion is erroneous. How rational in the trial court to moved being can conclude under the facts human evidence, suppress pistol as but life Jackley had a “fear” that his trial court overruled the motion. danger might simply have then been of this Given facts and circumstances beyond my comprehension. The mere ex- case, stop, and as as far as the initial far by police pression of a conclusion officer concerned, only one Jackley was there was in fear should never be suffi- that he was committed, and that was the of- violation arrest or a cient to authorize a warrantless speeding. fense of or his motor warrantless search of State, 508 S.W.2d vehicle. Cf. Frazer v. opinion implicitly, erro- majority but neously, Jackley’s stopping the holds that gave speeding vehicle for Clearly, Jackley’s search of warrantless right complete him conduct a war- glove compartment and the warrantless vehicle, pistol rantless search of the as an inci- were unlaw- seizure of the therefrom holding statutory arrest. Such dent to the lawful ful under the Constitution majority opin- To statutory in the face of our law. As laws of this State. flies out, respectfully I dis- police contrary holding, if officer previously pointed ion’s stops a citizen motorist of this State sent.
speeding citizen has a valid Texas and the driving a vehicle with driver’s license and is MILLER, J., joins. more, thereon, plates Texas without permitted to do arresting officer is not legally than to issue a traf-
anything more way. send the driver on his
fic citation and opinion also holds that be- majority stop, Jackley failed
cause *17 right custodial arrest of
had the to make a violating provisions 75, V.A.C.S., 6701d, fleeing
Art. 186 and § and, police officer attempting to elude a this, emergency
get yield to an failure
vehicle, Jackley’s.