Soria v. State

redress.). may open provision courts subject is of the claim treatment is (3) barring claims that hospitalization prevent limitations completed, or the date the sooner, brought it completed. made is could not have been for the claim is which 4590i, § change 10.01. the accrual date within Ann. art. does Tex.Rev.Civ. Stat. meaning of section 110.001. defines a date certain on As section 10.01 ripe liability claim is which a health care reading of recognize that under this We 4590i, that purposes under article limitations may claims that are Chapter 110 there governs applicability of section date brought, there is no timely but for which and Rem- of the Texas Civil Practice 110.001 However, indemnity indemnity. the State’s indemnity. any given claim for edies Code to voluntarily obligations assumed stat- are case, liability health care In this Barron’s certainly au- Legislature has the ute. The against Tucker arose 1982 when claim voluntary thority scope of its to define the knife to detect and remove Tucker failed obligations. open pro- courts indemnity back, years eight before blade from Barron’s Legislature to require vision does Chapter the effective date arising of claims authorize indemnification date, provision even if the before a certain uncon argues that article 4590i is TMLT injured person to sue after allow an applied to Barron’s claim stitutional as expired. limitations has Barron claim arose in 1993 when that his in his back. the knife blade first discovered correctly sustained the The trial court Krusen, 918, 922- 678 S.W.2d See Nelson objection because to indemnification State’s (Tex.1984) (predecessor to section 10.01 of before the effective Barron’s claim accrued statute of article 4590i unconstitutional when appeals Chapter 110. The court date of injured remedy before limitations cuts off conditionally granting discretion in abused its opportunity to discov person has reasonable absent an abuse against the trial court writ Barron wrong). argues TMLT er the Scott v. by that court. of discretion Twelfth petition that he could not alleged (Tex. Appeals, 843 Court knife his back earlier discovered the blade 1992). Court, hearing oral ar without This of article apply section 10.01 and that conditionally gument, grants leave to file provision of the open courts 4590iviolates the See Tex. of mandamus. grants the writ I, art. See Texas Constitution. Tex. Const. R.App. only if issue 122. The writ will P. § 13. its manda not vacate appeals does court decide, however, judgment. mus need not Barron, having only discovered the whether maintain his claim can

knife blade or the

against Tucker under article 4590i plaintiff

open provision. courts Whether liability claim

timely brought a health care 4590i, plaintiff

under article whether provision when open courts benefits from the SORIA, Appellant, Juan run, question. one Wheth limitations has is applies to that claim is Chapter 110 er open provi courts separate question. The Texas, Appellee. STATE simply has no bear of our sion Constitution 69,679. No. open provision courts ing on the latter. The to the courts. right guaranteeing access Appeals of Texas. of Criminal v. Texas Air Business See Texas Ass’n of 11, 1996. Sept. (Tex.1993) Bd., Control (The precludes the provision open courts 6, 1996. Rehearing Denied Nov. right to as abrogating the Legislature from common law cause a well-established sert doing so out the reason

action unless right of

weighs litigant’s constitutional by the appears have been considered favorable to the verdict

Court but was not that was not mentioned and to evidence the verdict. opinion was favorable to appli- point, pause At this revisit reviewing applied cable standard legal sufficiency of the assessing court long applied the stan- evidence. We Jackson, supra, when as- dard set forth in sessing the evidence is insuffi- claims that recently verdict. support cient role reiterated limited under Jackson: our court, appellate an our task is [A]s reсord and consider all of the evidence therefrom in the reasonable inferences jury’s light verdict most favorable Butcher, Beatty, C. Man K. Fort John whether, based on that and determine Worth, appellant. for inferences, those a rational evidence and Curl, Chapman, David M. David K. Assis- beyond jury found a reasonable could have Worth, Attorneys, tant District Fort Mat- of the offense or the [the doubt elements Paul, Austin, Attorney, ap- thew for State’s special Jack consideration]. issue under pellee. 307, 319, Virginia, son v. 99 S.Ct. 2781, Thus, 2789, L.Ed.2d 560 61 very do our a limited one. We ON review is OPINION STATE’S MOTION juror re-evaluating not act a thirteenth as FOR REHEARING credibility weight and of the evidence. MALONEY, Judge. Bather, final, only process act “as due murder, Appellant capital rationality safeguard ensuring convicted ... jury State, special answered the issues in the 755 the factfinder.” Moreno v. 866,

affirmative and trial court assessed the (Tex.Crim.App.1988). S.W.2d 867 penalty. original death On submission we State, 903 24-25 Chambers v. S.W.2d affirmed conviction but reformed v. (Tex.Crim.App.1995)(quoting Wilkerson imprisonment to life his sentence based State, (Tex.Crim.App.), 881 S.W.2d holding that the our evidence was insufficient — U.S. -, denied, cert. 115 S.Ct. finding support an affirmative to the sec (1994)). specifically L.Ed.2d 604 We have State, 69,679 special No. ond issue. Soria weigh the evidence or balance the declined op. slip (Tex.Crim.App. 8, 1994)(op. at 6 June evidence. defense’s evidence the State’s original submission)(per euriam)(unpub- Bur ns lished). for The State filed a motion rehear (Tex.Crim.App.1988)(“we n. 4 have aban ing, contending legally suf evidence balancing this pretense doned support finding on the ficient to second evidence”); mitigating see aggravating granted special issue. We the State’s motion (Baird, Wilkerson, also 328-44 this to reconsider issue. State’s motion J., ag dissenting)(urging Court to balance rehearing is sustained. mitigating in review gravating and evidence eases).

ing sufficiency claims I. a review of the evidenсe Following ver- light viewed in most favorable to the primary The State’s contention on re the offense that we dict. Two to three weeks before hearing is failed to view evidence plan light appellant began to the verdict as the abduction in a most favorable Bolden, guard at Virginia, 443 Men a life the Fort Worth required Jackson v. U.S. (1979), friends Boys’ appellant and his Club which L.Ed.2d planned ask Bol- frequented. Appellant progeny. points to evidence its State ear, den for a ride and once in abduct Evidence was offered at him, him, appellant kill ear participated attempted drive the to Del Rio or had in an plan burglary Mexico to sell. discussed this of a church two months before the agreed go police several of his friends who offense. A appel- officer testified that along reputation During being peaceable with it. lant’s the weeks before the appellant abiding addition, law offense considered the details of his citizen was bad. plan, including appellant jail how he would kill assaulted another Bolden. inmate broom; with a shotgun He concluded one that a razor blade was confiscated appellant’s jail Approximately ap- would be too loud. cell. Also found in three pellant’s appellant self-portrait depicting weeks after had first mentioned cell was a ap- friends, pellant plan holding bloody to his copy and his cohort knife. A Lagunas drawing Appendix this is attached an approached Mike Bolden as he was as Coons, leaving opinion. psychia- work and asked him for a ride.1 Dr. Richard agreed. Bolden trist Lagunas put Once in the car who testified for the described inoperable gun drawing reflecting appellant’s image .22 caliber to Bolden’s head and himself: told Bolden to drive to a bridge. Upon remote location under a arriv- self-image. ... represents it That is location, appellant al at the told Bolden to got how he sees it labeled himself. He has get out Lagunas of the car and struck him in presumably dripping “Soria” with off blood rock, causing the head with a him to fall to got the blade. He has “Juan” written ground. Appellant then stabbed Bolden hand, right across the knuckles on this JS twice in the back of the head or neck with a got a written on his forearm. He has knife knife, resulting in Appellant his death. and dripping blood off of it. TDC is written Lagunas left the scene in Bolden’s car and jail. got down. He is in He has this picked up Appellant two of their friends. muscled, angry, aggressive look. This is them, it, man, told “We did we did it” and way way This is the he sees himself. stabbing Appellant described Bolden. was way he is the he sees wants be. This driving. They bought some beer and contin- himself. driving Appellant ued around for a while. Now, awaiting that is trial here is man suggested passengers that the two recent for here is how he murder. And (who time) years were and 15 old at the sees himself. inoperable gun

use the to rob an ice cream self-image. That is his supply money truck in order to them with trip complied their to Del Rio. two and Coons further testified on the basis of a gave money appellant. hypothetical tracking Later of the case the facts evening appellant opinion probability and three others drove to that in his was a there Appellant stopped speeding hypothetical Del Rio. was com- defendant would highway patrolman outside of Del Rio mit criminal acts of violence that would con- days Appellant gave continuing society.2 two later. false name stitute a threat He who, patrolman significant in pointed following and address to the to the facts as stolen, learning appel- support opinion despite hypo- that the car was took of this — jail. county Appellant young age lant to the was he had al- inter- thetical defendant’s acts, day by Arlington police ready viewed an the next committed a number of deviant only through officer to whom he confessed. he had remained school friends, Appellant attempted per- and another his Arturo 2. he had of Coons testified that sonally appellant, examine was not Rodriguez, day had asked Bolden for a ride the cooperative. Appellant testimony However, introduced the plan before. to kill Bolden was psychiatrist personally examined of who had Rodriguez not carried out at that time. testified present him and concluded that he did not plan day aborted the because However, continuing society. threat to because he did not “know what to do with him’’ or light we view in a most the evidence favorable Appellant "where to take him." asked Bolden to verdict, opinion into we do not factor that shortly getting let them out after in the car. analysis testimony against weigh our testimony of Dr. Coons. attempted others for of grade failed maintain defendant to blame ninth and had em- planned fense, over a ployment, had the offense and state offered weeks, planning of and period several continuing threat would be of acting simply out a murder to steal the case), tracking facts hypothetical of based on property indicates a lack of con- — victim’s denied, U.S. -, cert. science,3 hypothetical and the defendant’s ac- (1994); Armstrong v. L.Ed.2d 276 driving after offense around in tions (Tex.Crim.App.1985)(evi buying the victim’s car and beer demonstrat- support second issue dence sufficient a lack of ed remorse. premeditated plan where showed evidence sup is We hold the evidence sufficient murder, ning robbery and victim shot jury’s finding. port Appel affirmative strug sat without range close as he on crate planning lant’s murder weeks ad gling or victim and defendant knew fighting, him, recruiting others vance to аssist another, in defendant assaulted other one appellant’s only apparent for the kill motive jail, reputation in com mates in defendant’s ing being his car desire steal the victim’s bad). Appellant’s point munity first cash, heavily weigh in order to sell it for disposition of error overruled our jury’s favor verdict. original error on submission patron known to Bolden as a of the club is withdrawn. capital and appellant where Bolden worked familiarity general on that ized Bolden’s asking him good will for a ride. addi II. tion, appellant acquired reputation had a bad opinion original submission ad- Our community time, period in the in a short disposed all of dressed and self-portrait depicted aggressive, hos points guiltyinnoeence of error related to the person holding bloody tile knife which a phase disposition to our of trial. We adhere psychiatrist self-image testified his reflected points of those of error. Because we sus- psychiatric testimony and the on the basis of orig- point first of error on appellant’s tained hypothetical tracking the the facts of in inal and reformed his death sen- submission hypothetical stant case that sentence, tence to we did not reach the a life violence,

would commit criminal acts of to appellant’s points per- of error remainder of See, gether support jury’s e.g., verdict.4 taining phase of punishment trial. We Flores remaining points now of error.5 turn to (Tex.Crim.App.1993)(evidenee sufficient on second issue where victim abduction of error, appel of point In his second forethought committed with some and delib eration, trial in lant court erred restrict repeatedly victim in contends was stabbed chest, offense, testimony expert of at the sleep defendant went to after a defense emphasized planning acts? didn’t. He does not 3.Coons violent kinds of His offense as indicаtive of a lack of conscience: kind of conscience. it, thought apparently ... He about discussed it, it, time, period planned original over a of some- opinion failed to 4. Our submission area, where in a one and a week and half testimony, appellant’s take Coons' into account people, thought discussed it with a number of self-portrait, appellant’s profiteering motive ways doing about different this. Went out addition, committing in the offense. In some of out, time that didn’t went one ly work direct- opinion in evidence taken into account our life, plan take else’s back someone mitigated against original ver- submission them, go car kill to Mexico sell the for their dict should not have been factored and therefore profit. own analysis viewing the evidence "in into our conscience, obviously, cover His doesn't light the verdict" under Jack- most favorable to behavior, prevent kind of doesn’t him from son. doing it. people We look at in terms of behavior con- points of original we addressed 5. On submission which, fact, they trol. Do helps have a conscience 6, 7, 8, 1, 3, opinion we In this error 24-27. their Does it them control behavior? rehearing points it, fact, error 1 on address 2, guilty? pre- make them feel Does 4, 5, doing and 28. 9-23 vent them from criminal kinds acts or trial, punishment phase of appellant. violation of his tion of Griffith would be allowed rights.6 Fifth Amendment testify upon hypothetical. Appel- based Griffith, lant declined to call amade bill any psychiatric The State did not offer exception. testimony on the dangerous issue of future during punishment ness its case chief. Fifth implicated Amendment is Appellant psychiatrist called Grig Dr. James expert when a mental against health testifies son who testified that he had conducted a part defendant based in on communica complete psychiatric appellant examination of by tions during made the defendant a court- opinion appellant and had formed the psychiatric ordered examination. Estelle v. present continuing “does not threat to soci Smith, 454, 462-63, 451 U.S. ety. That dangerous he is not in the future.” 1872-73, 68 L.Ed.2d 359 In Estelle v. rebuttal, psychiatrist the State called Dr. Smith, the state offered Richard Coons. Coons had not conducted a testimony psychiatrist (coincidentally, psychiatric because, appellant evaluation of Grigson the same Dr. involved in the instant although by ordered the trial court to submit case) pre who had examined the defendant Coons, by to an evaluation was “not pursuant order, purposes trial to a court cooperative” Rather, with those efforts.7 competency. Grigson testified Coons hypothetical testified on the basis of a continuing defendant would be a threat tracking the facts of the case that in his society; diagnosis largely upon rested opinion probability there was a during statements made the defendant continuing constitute a threat to soci pretrial Smith, examination.8 ety. testimony Coons’ is described Part I at 1873-74. The opinion. Appellant sought of this then to call was held to violate the defendant’s Fifth Clay Dr. E. Griffith. had Griffith also con privileges Amendment since the defendant ducted a appellant. evaluation of right had not been informed of his to remain The trial court ruled that due to examination, cooperate refusal to silent and informed that statements he with Coons’ permitted testify during Griffith would not made pretrial exam could be used anything personal based examina- sentencing proceeding: him in a Yes, attempted asserts a Sixth Amendment claim in A. I did. I to. brief, ground but we decline to address that Q. you Did do so? since he did not raise the Sixth Amendment at cooperative. A. He was not trial, appellant’s objection trial. At “[biased was Well, Q. you say coopera- when he upon the Fifth Amеndment [sic] of the Unit- tive, you prevented doing were from so? ed States Constitution and based on the similar action, Only by cooper- just A. he did not provision ap- in the Texas Constitution.” Since ate. pellant’s only brief contains three sentences in Well, Q. right. possible All otherwise it claim, support of his Texas Constitutional you to conduct such evaluation in the ab- insufficiently view it as briefed and decline to cooperation? sence of his address it. also asserted at "the trial cooperate, A. In the absence of—his failure to Amendment, providing Fourteenth that a defen- impossible it was me to do it. enjoy process.” Appellant dant shall due men- brief, tions the Fourteenth Amendment in his 8.Responding argument that the to the State’s provides argument authority support no or implicated Fifth Amendment was not because the thereof. defendant’s communications were nontestimoni- appears although appel- 7. It al, from the record that the Court stated: evaluation, presented lant was to Coons for Grigson’s diagnosis, ... Dr. as detailed in his respond did not to Coons or otherwise answer testimony, simply was not based on his obser- questions. Coons’ Coons testified as follows as Rather, respondent. Grigson vation of Dr. appellant's cooperation: to lack of largely respondent's drew his conclusions And, Q. you [The State] did see the Defendant during account the crime their interview ... cause, in this Juan Soria? Grigson’s prognosis danger- Dr. as to future Yes, [Coons] A. I did. respondent on statements ousness made, rested right. Q. you attempt All And did to examine omitted, reciting and remarks he him? I details of the crime. A. did. Smith, 464, Q. you you Did me whether or not at- 451 U.S. at 101 S.Ct. at 1873-74. —tell tempted psychiatric to conduct the evaluation of him? joint Grigson simply pursuant to the motion State beyond When Dr. went ed 411, Id. at 107 S.Ct. at reporting on the of com- and the defense. court issue objected to the State’s proseсution 2911. The defendant petence and testified for the at of this evaluation as violative penalty phase issue of rebuttal use crucial rights. Supreme dangerousness, The respondent’s his Fifth Amendment future rejected changed essentially Court the defendant’s claim: role became like agent recounting that of an of the State ], however, recognized Smith [in We postarrest statements made in a unwarned case, of that ‘distinct circumstances’ setting. custodial S.Ct., U.S., trial at at 1874 - the ordered, sponte, psychi sua judge had Supreme Id. at at 1875.9 S.Ct. The neither had atric and Smith examination specific emphasized circumstances insanity nor defense had of asserted of that case: trial. psychiatric evidence at We fered defendant, A criminal who neither initiates that, acknowledged in other thus situa 'psychiatric attempts nor evaluation tions, might the State have an interest evidence, any psychiatric may introduce introducing psychiatric evidence rebut psychia- compelled respond not be to a petitioner’s defense.... further noted against trist if can be his statements used Smith]: “A criminal defendant who [in him sentencing proceeding. in a psychiatric evaluation neither initiates respondent voluntarily Because did not any psychiatric attempts nor to introduce pretrial psychiatric consent to the exami- evidence, may compelled respond not be being right nation after informed of his if his can be psychiatrist statements possible remain and the use of his silent against capital sentencing him at a used statements, rely the State could not proceeding.” [citation This state omitted] Grigson what he said Dr. to establish his proposition: logically leads to another ment dangerousness. future requests such an evaluation if defendant (emphasis Id. at 101 S.Ct. at 1876 add- evidence, then, psychiatric at presents ed). The Court furthеr observed “a least, prosecution may very rebut different situation arises where defendant presentation this with evidence from intends to introduce at evidence reports the examination that defen penalty phase.” Id. 101 S.Ct. at requested. dant privilege no Amendment Fifth Supreme opportunity Court took the psychiat the introduction ‍​​‌‌​​‌‌​‌‌‌​​​​‌​​​‌​​​​​‌​​​‌‌​‌‌‌​​‌​‌‌​​​​‌‌‍“a address different situation” Buchan testimony by prosecution. ric Kentucky, an v. S.Ct. 422-23, 107 (emphasis Id. at 2917-18 (1987). There, L.Ed.2d the defendant added). psychiat The Court noted that the raised an affirmative defense of extreme ric offered the State did guilt phase emotional disturbance at the by petitioner “describe[] statements support trial. of his defense defen dealing with the crimes for which he was dant called a social worker who read from (em 423, charged.” Id. at 107 at 2918 S.Ct. psychological several evaluations which had original). phasis in during involuntary been incarcera conducted youth tions a center and later in an institu Courts have viewed Buchanan emotionally youths. recognizing tion for disturbed Bu a defendant “waives” chanan, 409, rights to limited U.S. at 107 at 2910. Fifth Amendment extent 483 S.Ct. by presenting psychiatric testimony sought the social on his State cross-examine See, having e.g., Lynaugh, 835 by read from another behalf. Schneider v. worker her (5th 570, Cir.)(referring to Bu report upon an F.2d 575-76 based examination “waiver,” following involving concept al defendant his arrest the murder chanan as issue; though acknowledging Buchanan did this examination had conduct- been opportunity given advise client 9. The also the Sixth tion and an Court held under given prior regarding cooperation the extent of his there- Amendment defense counsel must be psychiatric notice a court-ordered examina- with. 54 denied, term),

not cert. use that 488 state-individual balance. Id. at 1113. U.S. This 87, 102 (1988); 109 63 by S.Ct. L.Ed.2d Wilkens supported principles rationale is the same v. (Tex.Crim.App.1992), 847 547 compel undergo a defendant cross- denied, rt. examination elects to once he take the stand ce L.Ed.2d The notion of in his own behalf: explained by waiver has been the Fifth Cir judgment practical Our that these con- deriving cuit as from defendant’s “construc siderations of fair effective criminal testimony:10 tive” process interpretation appli- affect introducing By psychiatric ... testimony privilege cation of the Fifth Amendment by psychiatric obtained defense from a supported by self-incrimination is defendant, examination of the the defense long Supreme precedent line of constructively puts the defendant on the holding that the defendant a criminal or stand and therefore the defendant is sub- prosecution may even civil not take the ject psychiatric by examination stand his own behalf and then refuse to State in manner. the same cross-examination, consent [citations Estelle, (5th Battie v. F.2d 702 n. 22 justification for similarly omitted] The this Cir.1981). words, by In other introduction precisely “coerced” that which psychiatric testimony the defense of based apply [by case. As present to the said upon an of the examination defendant “con Supreme Court] United States of the stitute[s] waiver defendant’s fifth States], a v. Brown[ United in the privilege amendment same manner as reasonably cannot claim that the Fifth testify election to defendant’s only him gives Amendment this (referring trial.” Id. at 701-702 to its hold but, testify not] choice or if [whether Cohen, ing in United States 530 F.2d 43 testify, immunity he elects to (5th added), denied, Cir.)(emphasis cert. on the matters he has cross-examination U.S. L.Ed.2d 130 put dispute. himself It would make of (1976)). only the Fifth Amendment humane Byers, In United States 740 F.2d 1104 judicially safeguard against coerced self- (D.C.Cir.1984), the defendant claimed the positive disclosure but a invitation to (via government lips from his [a] “forced party offers to mutilate the truth examination) compelled [psychiatric] the evi- tell_ par- of the other The interests negate insanity dence to his defense of ty regard the function of courts thereby proved, indirectly rebuttal, through justice the truth become ascertain necessary that he was of the mind to commit relevant, balance of prevail Writing the crimes.” Id. at for the determining scope considerations Circuit, Judge D.C. federal circuit then Sca- privilege against self- and limits of the virtually jurisdictions lia noted that all other incrimination. uniformly had addressed issue and con- 155-56, 78 S.Ct. at 626-27 U.S. at cluded that when a defendant raises the de- (footnote omitted). & citation Fifth insanity, fense of Amendment is not thereupon Id. at held that 1114. The court by violated a court-ordered exam- “when a the defense of in- by defendant raises psychiatrist ination conducted subjected sanity, may constitutionally be government’s choosing, court’s or compulsory by court-appoint- examination expert’s testimony sanity. issue of Id. government ... psychiatrists ed or and when Judge at 1111. discussed the Scalia various psychiatric support he introduces into testi- rationales relied evidence these defense, mony support insanity holdings, that to his testi- concluding the most sensible justification mony examining psychiatrists may was need to maintain a fair of those (1987), support Supreme acknowledged provides 10. The has for the Fifth Cir- Court some respect Fifth Circuit’s discussions in this and [in Battie].” cuit’s discussion of waiver Powell “Hlanguage 680, 684, observed Texas, 3146, that contained in Smith 109 S.Ct. v. 492 U.S. Kentucky, and our later in Buchanan v. decision 3149, (1989). 106 L.Ed.2d 551 402, 2906, 483 U.S. 107 S.Ct. 97 L.Ed.2d 336

55 (on issue) testimony ... Id. the State elicited redirect that as well." at be received Sparks concerning appellant’s from Dr. 1115. response ap- competency evaluation raising by This has held that an psychiatric evi- pellant’s introduction insanity psychi guilt offering at and defense By introduc- dence on cross-examination. thereof, in support atric evidence the defen psychiatric records appellant’s TDC rights his as dant waives Fifth Amendment Sparks’ soliciting opinion and Dr. concern- psychiatric to the State’s use of evidence in records, appellant “opened the ing those that v. rebuttal on issue.11 Wilkens use the results of door” to State’s 547, (Tex.Crim.App.1992), 847 S.W.2d 551 pur- competency exam for rebuttal denied, 1005, 1646, 507 113 cert. U.S. S.Ct. Buchanan, supra, eases cited poses. and (1993)(recognizing 123 268 Buchan L.Ed.2d By creating the that impression above. controlling). as held that a an also may suffering from appellant have been “opens defendant the door” to the State’s paved paranoid schizophrenia, appellant psychiatric pun at rebuttal use of evidence impres- way for to rebut that the State presents psychi ishment when the defendant psychiatric testimony tending sion with punishment. atric in his defense at evidence suffering was instead show 409, v. 805 Hernandez S.W.2d 412 personality disorder. from an anti-social denied, (Tex.Crim.App.1990), 500 cert. U.S. Hernandez, at 805 412. We observed 960, (1991), 111 726 S.Ct. L.Ed.2d testimony at psychiatric issue while case, capital murder the defendant ex pertained to the defendant’s mental status by pretrial Sparks amined Dr. as to his com “relevant to the issue of was therefore given petency, proper but was not Mi 12 dangerousness, [it] was not direct future warnings prior randa examination. opinion concerning expert of an assertion appeal on complained He the trial court 412 dangerousness.”13 at n. 3. future Id. by rights violated his Fifth Amendment al lowing why principles Sparks testify State at We no reason set see Buchanan, applied punishment pertaining as to matters to that forth in Smith and Hernandez, Supreme by Belying examination. on this Court in Wilkens and respect limiting language apply punishment Court’s its should not at Smith Buchanan, testimony holding rejected psychiatric presentation defen dangerousness.14 on See dant’s claim: the issue future however, Constitution, held, 11. We States we often look them further defen- insanity guilt presentation guidance persuaded dant’s of an defense at their and are sometimes asserting prevent did reasoning. him from Fifth and Fourth Circuits have Fifth rights presenta- against Amendment the State’s applied principles set forth in Buchanan to psychiatric tion of as to evidence prevent hold that a murder defendant Wilkens, dangerousness. issue of future 847 rights by asserting ed his Fifth Amendment S.W.2d at 554. testimony offering psychiatric punishment on at See, e.g., dangerousness. Giar the issue of future 436, Procunier, 483, Arizona, (4th 12. v. 86 S.Ct. 891 488 Miranda U.S. ratano v. F.2d 1602, Miranda, (1966). Cir.1989)(holding 16 L.Ed.2d 694 Under intention to defendant’s stated prior interrogation suspect sentencing must be psychiatric testimony to custodial en at introduce silent, right to testimony “warned that he has a remain abled State introduce may he does make be used as pretrial statement dangerousness issue of future based him, right against and that examination, evidence he has though had not even presence attorney, of an either retained or could be used been warned that statements made 444, appointed." Id. at 86 S.Ct. at 1612. Ly punishment); him Schneider 570, (5th Cir.), naugh, cert. 835 F.2d 576-77 denied, Sparks specifically prohibited from ex- U.S. 102 L.Ed.2d opinion (1988); pressing Lynaugh, to the future F.2d as defendant’s Williams Hernandez, denied, dangerousness. (5th Cir.), 1068-69 cert. n. 3. His for the State concerned his 95 L.Ed.2d 207 diagnosis exhibiting Schneider, an anti-social supra, the defendant was evaluated personality disorder. pretrial by court-appointed psy request at his Grigson) (again, determine his chiatrist Dr. sanity. competency punishment the de At by federal 14. While this Court is not bound cir- drug abuse appeals interpreting offered three witnesses—a cuit the United fendant courts Lynaugh, will, Schneider v. you 835 F.2d 576-77 more sure of himself. But basi- (5th Cir.), denied, cert. cally, he is insecure with masculinity. L.Ed.2d 63 appellant’s When asked prospects about In testifying appellant, Grigson de- rehabilitation, Grigson emphasized ap- that scribed his apрellant examination of as con- pellant did, “is aware of what he so I don’t sisting parts, of several one of which involved think going go that he is through ever that talking appellant [appellant about “what again.” doing on was] or around or about the time of Grigson On cross-examination stated that alleged Grigson explained offense.”15 knowledge of the offense pri- was based appellant’s expressed remorse, that in con- marily on what had told him: trast to the attitudes of most murder Q.... defendants, You have you mentioned that part was were of the reason for his aware of Thursday, the events of conclusion that June the present would not 27th, 1985? continuing society: threat to ... [appellant] very upset about what Yes, A. sir. happened. very guilty. He felt He Q. you How did become aware of those bring

wished he could boy. back the dead events? praised He to God. He has remorse and [appellant], A. From what he told me. guilt feelings normally which I don’t en- types counter in these of situations.... So, Q. Okay. that the entire amount of nightmares. very He has badly Feels you information reference to about what he primarily did. And due to Thursday’s [appellant], events are from ei- his reaction and comparing then it with statement; directly ther or from his is that examined, others I have my opinion it is correct? present he does not continuing Yes, sir, A. that is true. society. threat to Q. you And I take it that have based at Grigson explained further ex- your knowledge least of those events on pressed insecurities led him to associate with his version of he intended to do what wrong friends: Thursday; is that correct? ... And then from an emotional stand- Yes, sir, A. I did. point, male, [appellant] insecurity feels as a

which I part gets think in Q. true, it, him into the I same would be take wrong group, trying macho, to feel if more his version of of the events that [sic] oc- counselor, employee pro in a rehabilitation to the most effective and in most instances gram held, jail at the only where the defendant was psychologi- means of rebuttal: other jail chaplain and a testimony. all testified that the cal —who defendant could be Concluding rehabilitated. The State re Id. at 576. that the defendant had by presenting Grigson's testimony put butted that the calling his mental state in issue three past defendant’s expert criminal behavior would ability contin witnesses who testified to his to be rehabilitated, ue and there was no chance that the only the Court held that "the effec- could be rehabilitated. The defendant claimed tive means” available to the State for rebuttal that the State’s use presentation independent psychologi- of such violated his was the rights Fifth Amendment since he had not been cal evidence. Id. at 577. rights Grigson’s pretrial informed of those before Grigson portion examination. The Fifth Circuit concluded that described of the exami- governed by the case principle estab nation: lished puts in Buchanan —that "a defendant who Then, part the fourth exami- psychological his mental state in issue with evi thought. you nation is called content of Here may dence not then use the Fifth Amendment obtain historical information which includes rebutting bar the State from in kind.” Schneid early development, birth and educational histo- er, emphasized 835 F.2d at 575. The Court Bu service, marital, ry, occupational, family, medi- attempt chanan’s to strike a “fair state-individual history. importance, cal And then a real when balance:" you charged have an individual that is with a improper It is unfair ‍​​‌‌​​‌‌​‌‌‌​​​​‌​​​‌​​​​​‌​​​‌‌​‌‌‌​​‌​‌‌​​​​‌‌‍and offense, ability to allow a defendant criminal individual psychological testimony to introduce favorable they doing to discuss what were on or around or prevent prosecution and then alleged from resort- about the time offense.

57 deciding facing a defendant when Friday. You it from his choices curred that took testify statement, in his defense: whether you? didn’t very choice ... a has a difficult defendant sir, Yes, as as A. his confession and well against right make: he waive his should me, yes, what told sir. issues, all relevant on self-incrimination redirect, appellant’s Grigson emphasized On might knowing unfavorable evidence some expressions of remorse as an indication that cross-examination; or should result from danger: not be future he would right yet put not his he retain happened ... his reaction to what causes of case before aspect some the version of likely to do him be a whole lot less ever jury.... difficult decision does the This again anything like this in the future be- impose impermissible upon an burden remorse, pain, regret, cause the the the rights. the exercise to Fifth Amendment family, boy’s what he has done to the what by presented is No constitutional violation happened boy, to the what he has done to fact a difficult decision for defen- the family, happened to his as well as what dant. himself. (Tex.Crim.App.), State, 249, v. 738 256 Cantu S.W.2d testimony ap By presenting Grigson’s denied, as to 108 t. cer feelings appel other pellant’s remorse and 98 L.Ed.2d 154 offense, expressed concerning lant to him the present his Appellant chose to version appellant constructively placed himself the they impact his death- might of the facts as Battie, Byers, supra; supra. stand. Cf. testimony. through Grigson’s worthiness only rebutting his effective means of When a defendant takes the stand in The State’s defense, testimony by subject own he “is the rules constructive same psychiatric testimon presenting independent governing direct examination and cross-ex See, Buchanan, Byers; any e.g., supra; Bryan y.16 amination as other v. witness.” Vest, (Tex.Crim.App. F.Supp. United States “ 1992). Schneider, (W.D.Mo.1995); may ‘contradicted, ac supra. im He be discredited, sustained, attacked, the initi peached, cordingly hold that when give and based up, made to ates a examination bolstered evidence himself, matter, testimony presents psychiatric cross-examined as to new thereon every respect dangerousness, future the trial and treated as other the issue of testifying, except may compel appel an witness there are court examination where statutory prohibi by expert of the State’s or court’s overriding constitutional or lant ” may choosing17 present rebut- recognized tough tions.’ Id. We have State added). (emphasis also the case in Wilkens and Hernandez. However, upon our fact does not bear hold- this Byers, rejected 16. Justice Scalia conten- constructively ing. testifies in Once a defendant tion that cross-examination of defendant’s behalf, subject to own he is “constructive” his expert necessary satisfy this would balance in by through State examina- cross-examination context: (of by court-appointed expert the State's or tion perhaps psychiatry That so if be were choosing). court’s that, assuming physics, a science as so exact recognize We also that in Bennett psychiatrist precisely the defense described (Tex.Crim.App.1987),we held (consisting data de- interview authority "have a trial court does not fendant), analysis the error of his could purpose appoint psychiatrist of examin- is, however, far that. demonstrated. It solely relating a defendant evidence Ordinarily only psychi- effective rebuttal distinguish- dangerousness.” case is That future contradictory testimony psychi- opinion atric presented in the instant case. from the facts able testimony; purpose opinion atric and for presented psy- defendant in Bennett had not psychiatric study ... "the basic tool of remains evidence; sought compel an the State chiatric interview, personal requires rapport which tеstimony introducing purposes direct exam for subject.” between the interviewer and the dangerousness, rebut- of future on the issue Byers, 740 F.2d case, appellant constructively instant tal. psychiatric testimony by presenting testified 17. In Buchanan the rebuttal offered upon of the defendant con- an examination was based an examination based State sought request; to offer rebuttal evidence. pursuant ducted the State defendant's testimony expert tal during of based his made mente such examination that defendant; provided, examination of “product were the of rational a a intellect and however, testimony that the rebuttal is limit Mincey Arizona, free will.”19 v. See 437 exp by ed to the issues raised the defense 385, 397-98, 2408, 2416, U.S. 98 57 S.Ct. Lynaugh, v. See Williams 809 F.2d (1978)(while by ert.18 1063, L.Ed.2d 290 statements made (6th Cir.1987)(recognizing 1068 in defendant violation of Miranda are admis- when defendant introduces evi against impeachment sible pur- defendant for dence on critical issue he “waives” fifth poses, such must product statements be “the objections psy amendment to of state’s use will”). of a rational intellect free testimony provided chiatric state’s evidence words, other the statements must be volun- is solely “used in rebuttal properly limit tary. defense,” by ed to the citing issue raised (5th course, Estelle, literally be Vardas v. 715 F.2d Of no one can to 206 Cir. forced 1983)). emphasize will, against by We speak ex their State’s demonstrated pert may only testify cooperate on the of appellant’s basis state- refusal to with Coons Arizona, 385, 18. We today are not asked to Mincey decide whether a 437 U.S. 645-46. 98 2408, (1978), suppression Supreme defendant to at is entitled trial of 57 L.Ed.2d 290 during compelled statements made a examina set Court held that the forth in rule Harris re- defense, sanity tion. In the a quires voluntarily context of federal be that such statements made: provide by rules that certain statements made by Statements made a defendant in circum- during defendant the examination be ex must violating stances the strictures of Miranda v. 12.2(c). cluded. P. Some federal Fed. R.Crim. Arizona, supra, impeach- are admissible for pointed safeguard uphold courts have to this if ... ment their "trustworthiness satisfies le- Cohen, ing compelled examinations. See 530 gal [citing v. New ] standards.” Harris York But (concluding F.2d at 47-48 that since statements any against a of criminal trial use suppressed, about the offense could be a rule involuntary is a statement denial of due forbidding "pre compelled examinations would law, though process ample "even there is of evil”). vent no threatened The Texas Code of support evidence aside confession to from the provides Criminal Procedure exclusion at the conviction.” guilt by during of statements made the defendant 397-98, Mincey, 98 437 U.S. at S.Ct. at 2416. competency a Tex. exam. Code Crim. Proc. Ann. process given Due mandates that statements 3(g); § art. 46.02 see also DeRusse v. 579 "product law enforcement not the a that are (Tex.Crim.App.1979)(article 229 may rational intellect and a free will” not be 46.03, pertaining sanity examination does not any purpose. used trial for defendant at prohibition against contain use of defendant’s 398-402, at 2416-19. Id. at 98 S.Ct. The Su prohibition statements similar found article preme imagine was "hard Court noted that it 3(g)). § 46.02 to the exercise of situation less conducive Buchanan, We notice the rebuttal testi- free will’ rational intellect and a than Min mony by did ”describe[] [sic] statements cey’s[:]" petitioner dealing with the crimes for which he [Mincey] seriously just wounded had been Buchanan, charged.” 483 107 U.S. earlier, hospi- few hours arrived at the and had (emphasis original). S.Ct. at are coma,” "depressed tal according almost to presented likewise not with that issue. Because attending physician. to his Al- appellant cooperate did in the State’s exami- treatment, though some he had received nation, question no is raised as to Coons’ testi- [the officer’s] condition at the time of interro- mony regarding by statements made sufficiently gation serious that was still he was during such examination and makes no complained He the intensive unit. care such Coons' claim as to brief observation of him pain [interrogating that the officer] in his testimony or Coons’ as to lack of evidently leg was He was "unbearable”. con- cooperation. clearly fused unable to think about the York, In Harris v. New 91 S.Ct. events of that or the afternoon circumstances (1971), Supreme interrogation, L.Ed.2d Court of his some of his written since given entirely held that statements in violation of Mi- answers were on their face not coher- prose- Finally, Mincey being by ques- randa could nevertheless offered ent. while purposes impeaching lying hospital cution for the defen- he was his back on a tioned bed, tubes, needles, testimony, "provided dant’s that the of course encumbered was, short, legal breathing apparatus. trustworthiness evidence satisfies "at the He officer], complete mercy” [the standards." Id. 91 S.Ct. at 645. The unable to petitioner escape [the officer’s] once to take held that chose resist the thrust ” stand, provided by interrogation. "the did not shield Miranda 398-99, (footnotes protect being prior him at 2416-17 confronted with Id. at 225-26, omitted). inconsistent statement. Id. at S.Ct. at Leonard, See United States altogether. despite question the trial court’s order. (5th Cir.1980). 1163, 1165 n. 3 F.2d impose then whether a court can sanctions comply due a defendant’s refusal Limiting the defendant’s examination. court-ordered the same extent expert rebuttal defen- limited due expert was State’s sanity In the context of a court-ordered fair and rea- cooperate to is a dant’s failure exam, expert of exclusion the defendant’s Just as the defendant’s sonable sanction.20 testimony suggested as a sanction has been longer rights protect Fifth no Amendment cooperate: for the defendant’s refusal an being submit him from ordered to his ... a defendant indicates inten- [0]nce circumstances, in neither these examination insanity the defense and tion to invoke they him from the trial court’s protect do issue, present testimony on expert the Karstetter, ability to enforce such order. Cf. psychiatric may ordered to to a submit court not its supra. The trial did abuse by psychiatrists examination available limited ordering that Griffith be discretion in his testify government, for the and hypothetical. a testifying on the basis of refusal may be psychiatrists to the talk State’s point Appellant’s of error is over- second by at by the court the least sanctioned ruled.21 experts’ own testi- exclusion of defendant’s error, points and fifth of fourth issue, insanity mony on the [citations trial erred ad- appellant claims the court necessary predicate The of that omitted] mitting the into evidence position is that indi- once drawing, stage copy of which is of trial present expert testi- cates intention to Appellant Appendix an hereto. attached as issue, mony insanity privilege on the drawing relevant argues was not that not self-incrimination does thereaf- appellant is no evidence that because there being compelled protect ter him from argues Appellant it. also that drew expert talk to the State’s witnesses.... jail and seizure of the of his cell search Cardwell, v. 1144, Karstetter 526 F.2d 1145 drawing the Fourth and were unlawful under added). (9th Cir.1975)(emphasis A more ex United Amendments Fourteenth Appellant points out treme sanction is forfeiture of the defen States Constitution.22 drawing weapon not or contra- right insanity dant’s to assert his defense that Hernandez, recognized opinion emphasize our 20. case not decision We this does involve limiting distinguished ground question testimony on the supra, of of defense that case expert testify directly experts offered in the defense case in chief where did that the there not expressed merely dangerousness. the defendant has an intention This distinc- the issue of future Here, psychiatric appel- opin- evidence. introduce basis of our tion is not consistent actually presented psychiatric testimony opinion lant has in that case was ion in Our Hernandez. behalf, thereby constructively testifying. on his any respect predicated in on the fact that the testimony gave appellant’s It is constructive opinion express a on the expert direct did not rights of rise to waiver his Fifth Amendment Rather, dangerousness. our hold- of issue future ultimately ability and of the trial court underlying predicated on the rationale compel an and to enforce or- examination Buchanan, that der. introducing appellant's By TDC soliciting Sparks’ opinion con Dr. records and 21. are of 873 aware Bradford records, "opened cerning those 15, (Tex.Crim.App.1993), - S.W.2d 20 denied cert. use of his door" to the State’s of the results -, 311, .S. S.Ct. 130 L.Ed.2d U 115 purposes. competency Bu exam for rebuttal (1994), plurality in which a of this Court 274 chanan, supra, cases above. and cited making that the trial order the ad held missibility court’s Hernandez, We continue to portions expert’s of defense principles in Buchanan in follow the established dangerousness contingent on future Wilkens, today. supra; holding Hernan our See the defendant’s submission to examina dez, supra. expert to that issue the State's violated tion as right to effec the defendant’s Sixth Amendment I, §§ 22.Appellant 9 19 of also cites Article counsel, and the admission tive assistance Proc. Code Crim. Constitution Tex. Texas expert’s testimony these circum State’s under 38.23, fails to makes a but he Ann. art. 1.06 violated the defendant’s Fifth Amend stances authority argument separate separate or cite right against We de self-incrimination. ment support plurality thereof. to follow cline Bradford. 60 “deliberately”

band and its did not if therefore seizure serve so what that defini any legitimate prison administrative concern. tion would be. contends he was unable to conduct effective voir dire examina Supreme has Court held that tions absent information. This exact prisoner expecta has no Fourth Amendment rejected by claim was addressed and privacy tion his cell. Hudson v. Palm in Clark er, 104 S.Ct. 82 L.Ed.2d — (Tex.Crim.App.), U.S. -, cert. denied (1984). Moreover, a shakedown search (1994). Ap L.Ed.2d 1078 pretrial of a detainee’s cell does violate pellant’s point ninth of error is overruled. process. the Fourth due Amendment or v. Rutherford, Block U.S. error ten Accordingly, L.Ed.2d 438 limiting claims “the trial court erred the “shakedown” search of cell voir of venireman dire examination James was reasonable. feelings regarding Chandler Pollard on whether intentional conduct would automati Palmer, respondent v. Hudson the cally satisfy question number personal prop claimed the destruction of his requirement one’s that the conduct was com erty was an unreasonable seizure under the expectation mitted with the that reasonable Fourth 468 Amendment. U.S. 528 n. the death of the deceased or another would rejected 104 S.Ct. at 3201 n. 8. The Court result.” that contention: ... the same reasons that lead us to con- venireperson During voir dire Pollard clude that Fourth pro- the Amendment’s appellant following question: asked the scription against unreasonable searches is you’d already If found that the defen- cell, inapplicable prison apply in a -with intentional, you can dant’s conduct was controlling Prison force seizures. offi- any envision set of circumstances where cials must be free to seize from cells you find it was not done with would that which, view, legiti- articles in thеir disserve expectation the reasonable that death mate institutional interests. of the deceased or another would result? reasoning applies Id. think We the same objected question State jail. pretrial the context of detention See ground improper that it to divide the was

Rutherford, 584-91, 468 104 U.S. S.Ct. at special segments.” issue “into The State’s (conditions pretrial 3231-35 detention objection was contends sustained. reasonably legitimate should be related question proper and should have governmental objective and courts should de- been allowed. fer to sound discretion of institutional offi- cials). jury jail special It issue asked the was not The first unreasonable offi- drawing cials to conclude that at issue “whether the conduct the defendant that legitimate disserved interests. institutional was com caused the death of the deceased deliberately and with the reason mitted reject appellant’s We also contention expectation able death de drawing that the relevant because he ceased or another result[J” would Authorship was not shown to author. by signature, need not be but can shown be Tex. Crim. Code Proc. Ann. art. 37.071. This circumstantially. shown Evidence that consisting of issue can be viewed as two drawing in appellant’s was found cell was separate queries: one, whether the conduct drawing sufficient connection render the two, deliberately, was committed wheth permit

relevant and to make State er the conduct was committed with the rea argument appellant’s drawing. it was expectation death result. sonable would Points error four and five are overruled. held is a distinction We have there conduct; In his ninth of error claims between intentional and deliberate early failing during something the trial court more than erred deliberate conduct is intentional, voir premeditation. dire tell whether or not the than less State, court’s 810 instructions include definition Hernandez S.W.2d against venireper- challenge for cause (Tex.Crim.App.1991), 504 U.S. State’s cert. denied ground that on the Palacios son Dora Garza 119 L.Ed.2d penalty dis- regarding death her views repeatedly recognized that venire- qualified in her. person distinguish cannot between who impaired is

tentional and deliberate conduct Palacios, focusing voir dire of The State’s ability first special in his to consider the law follow the largely she could on whether See, issue, challengeable for cause. affirmatively if special issues and answer the e.g., Bigby v. doubt, ap- beyond took proven a reasonable (Tex.Crim.App.1994); Martinez half hours. proximately one and one How (Tex.Crim.App.1988). attempted repeatedly to elicit direct State ever, part the first issue does second phrased properly responses to direct and appear require anything that can be personal concern- questions views about her meaningfully distinguished from intentional could penalty whether she death murder. conduct in the context of intentional put and answer issues those views aside provides The Texas Penal Code according Palacios’ answers to the evidence. intent, intentionally, person acts with A or that she was overwhelmed reflect respect to the nature of his conduct or virtually unable gravity of the task and was of his it is his result conduct when Although at one give a direct answer. objective engage conscious desire the questions to from point responding in the or cause the result. conduct she answer trial court she stated that could issues, the “yes” according to special the 6.03(a). person §Ann. Penal Code A Tex. evidence, anomaly. response that was an in underlying the commits “murder” continually difficulty with the expressed She “intentionally if death offense he causes the and a di- punishment phase of trial evaded A logical reading of an individual.” response as could follow rect to whether she part special second of the first issue and the the repeatedly the stated that law. Palacios to the definition of intentional murder leads juror would “be task as on very nearly en conclusion that the first is her, or not state whether hard” for but would compassed finding within the latter. We law. or could not follow the she could previously recognized same. challenge for Upon granting the State’s (Tex.Crim.App.1994), Garcia v. 887 S.W.2d — cause, the trial court stated for record: U.S. -, t. denied cer (1995), Palacios, 131 L.Ed.2d under the circumstances Mrs. venireperson agreed listening your inten in en- where that once answers their found, long invari I it been a time. tirety, tional murder was one would and know has ably expectation right this an hour also find a reasonable that been at We have result, half, I like acknowledged “It short break. feel death would we that a little totality that if a in its that viewing your also makes sense this Court answers someone, intentionally fairly person per you that able consider kills wouldn’t be reasonably expects penalty as the regard result[J” death to in to the death son law reason, you. explained this think it that I am procedure For obvious was So serving this special you is the in going crux the first issue deliber to excuse you in question. Given that the critical And I watched and listened ateness case.... presented special it was quiry you. the first issue is And I know how hard conduct, question you. listening your we hold answers of deliberate But you observing were watching you trial court not abuse its discretion how did phrase by struggling with all of these ruling could not affected venireperson going go ahead and excuse question things, such that I am portion you only to the second at this time. asked address Garcia, special supra. Point issue. See controlling authority on current The most is overruled. of error ten Riley v. issue is this rehearing). (opinion on (Tex.Crim.App.1993) of error eleven There, venireperson defendant claimed granting claims the trial court erred improperly proof’ excluded because her views burden of special the first issue. penalty death would not Specifically, argues have “sub- that because these stantially impaired” performance. her venirepersons distinguish could not between venireperson initially testified she did portion the second special of the first issue— penalty not believe in death and could not whether the defendant acted with the reason- personally participate proceeding in a expectation able that death would result— handing resulted down of a death murder, they and intentional challenge- were However, special sentence. after the issues able for cause. her, explained were she testified that in rejected We addressed and this identical juror, view of the oath she would take as a Garcia, contention in put personal objections she could her aside There, venireperson the defendant asked the and answer the issues accordance with the having conduct, whether found intentional evidence. We noted that un- “[s]he testified you invariably ... wouldn’t find that I equivocally opposition that her to the death would reasonably expect death penalty substantially would not impair her you already would result? If had found ability to follow her oath and render a true them, intentionally that I had killed would verdict.” Id. at 297. heldWe that she you that, course, always find I rea- should not have been excluded: expected sonably the death would result? difficult, it [t]hat would even that it venireperson responded, “Makes sense.” unquestionably con- violate her We said: scious, however, support does not lend tо a It also makes sense to Court that if a finding venireperson] that [this was sub- someone, person intentionally kills stantially impaired.... long So as she reasonably result; person expects death consistently affirmed that she could in fact however, context, in this whether that kill- special answer issues accordance ing deliberately was also is committed still evidence, difficulty with neither she inferred, question. in It cannot be so, may doing have in might nor the fact it this ambiguous questions, of series that conscience, violate her renders her a ‘vacil- venireperson always would answer the lating’ in any venireman material sense. question, entirety, first in its in the affir- However, Id. at 300. venireperson when the mative. equivocates ability vacillates on their to accordingly Id. at held the trial law, follow the the reviewing court must de- court did not abuse its discretion in overrul- judgment. fer to the trial court’s Id. challenge the defendant’s for cause. We Review of voir Palacios’ entire dire testi- of holding. adhere to that Points error mony reflects that she was tormented twelve, thirteen, and fourteen are over- gravity of the task the extent that she was ruled. directly ques- unable to answer the State’s points In of fifteen and sixteen tions error as whether she could follow the law in appellant claims the trial court erred over according and answer the issues to the evi- ruling challenges against cause two In equivocal dence. view of the and indirect venirepersons alleges of whom unable responses, nature he were appar- Palacios’ and her give sentence, fair struggle ent “to consideration a life over whether could she remain subject possible parole, for the offense of impartial, we defer to the trial court. We capital trial murder.” hold the court did not abuse its discre- concluding tion in that chal- Palacios was During venirepеrson voir dire of Richard

lengeable for of cause. Point error eleven in Dunlap, appellant Duane stated that is overruled. jury in- murder case the would receive an twelve, thirteen, points of informing error struction not to them consider the fourteen, appellant complains of trial operation parole Applicant of further laws. case, overruling challenges court’s of his in for cause stated that in contrast a murder respect ease, venirepersons capital jury ‍​​‌‌​​‌‌​‌‌‌​​​​‌​​​‌​​​​​‌​​​‌‌​‌‌‌​​‌​‌‌​​​​‌‌‍to three he whom murder would be required given parole. Appellant contends would have a “diminished an instruction as to answering special in impaired suggest- would Dunlap if that distinction then asked parole possibili- capital if knew that person convicted of issues to him that “a ed questioned subject being paroled?” specifically ty. court murder is trial agreed Dunlap responded that it did and also Curie as follows:

(cid:127)with that he would not be comforta- have indicated ... Both sides [Court]: capital being re- murder convict ble with a capital mur- you punishment that the parole. leased penalty, prison or the death in der life venireper- an- During questions voir dire are depending on how the following ex- son Colin Russell Curie the swered. change occurred: other, and I or the And believe one side you think counsel]. What do [Defense was, I side it talked can’t which remember propriety Texas about State —the you that could not consider you about you giving some- you felt about asked how questions parole answering or determin- your penalty. one death are What un- punishment to assess. You ing what sentencing to life feelings about someone derstand that? prison, they have when been convicted [Curie]: Uh-huh. capital murder? you I answered [Court]: So—and believe Yes, long I as can. Because [Curie]. into affirmatively that not enter they stayed that is where for the duration. punish- your setting your consideration

Appellant Dunlap and Curie contends ques- answering any of these ment or in challengeable for “in cause because as- were tions; is correct? ease, sessing punishment murder Yes, sir. [Curie]: subject possibility a life sentence parole they not a to which trial did not abuse its discretion court challenges give fair ar- for cause denying appellant’s could consideration.” gues Dunlap’s belief that Points venirepersons. and Curie’s these two paroled capital defendants should not be overruled. and sixteen are error fifteen they them if would influence discovered error seventeen eligible for capital defendants can become overruling claims court erred trial parole. challenge against venireperson for cause proper is not a for the Parole consideration Dunlap Dunlap could not consider because capital jury in a ease. Neither Dun- murder range of for the offense the full lap they nor of Curie testified that knew the Dunlap Appellant argues that of murder. parole operation capital of as to murder laws permits prejudiced against the law that convicts, they testify possi- nor did that the $10,000 jury impose in a murder a fine bility impair of in parole would them answer- is in defendant sentenced case which the special issues in accordance with the points years prison. Appellant 99 life or Dunlap instructions the law. tes- court’s following testimony: to the tified that he would be able to follow instruc- punish- range of counsel]: The [Defense tions a murder case to consider the is, know, you is it murder as ment for parole operation of laws and that he would years’ probation, if the defen- between five adjust the for the sentence account up probation.... And eligible is dant parole.23 Appеllant has made possibility of $10,000 fine. a years or life and not act like- showing Dunlap no [Dunlap]: Uh-huh. answering special issues a wise If, juror, you I addition, a although appellant counsel]: [Defense case. In a con- your jurors assess guess had other that he no points to Curie’s statement years punishment at murderer’s sentencing capital to life victed problem prison you imagine ... can stayed for life ... they or long as that is where “as where, whatever of circumstances duration,” showing that Curie set he makes no try make "add on to sentence Dunlap agreed such an would not that he would follow up parole.” that he in a murder case and stated instruction appropriate, to tack on in addition to that a what No matter the other evidence would $10,000 show, you fine? youthful age could consider the of me, mitigating the Defendant as a [Dunlap]: really. Not factor in To it seems like life, $10,- setting punishment. if person years or what is —99 nothing. 000? It don’t mean What is No matter what the other evidence would money? show, you could consider evidence of other mitigating We do not reach the merits of extenuating, circumstances. error, any, claim because if was harmless No matter what the other evidence would since the of issue murder as lesser included show, you could consider the element offense was not raised in this In case. San mercy mitigating for the Defendant as (Tex.Crim.App. tana v. factor. 1986), ques the defendant was not allowed No matter other what the evidence would venirepersons tion about the lesser included show, or whether not at the time range punish offense of murder its offense, commission whether although ment. We held that the trial court acting Defendant was under duress un- dire, restricting erred in so voir error such mitigat- der domination of another as a was harmless because the issue of the lesser ing factor. included offense of murder was nоt raised No matter what other evidence would 10; under the facts of the case. Id. at see show, you a mitigating could consider as (Tex. also Jones 843 S.W.2d 487 factor whether or not at the time of the Crim.App.1992)(any denying error in defen offense, commission of the whether right to parole applica dant voir dire on law Defendant an extreme was under form ble lesser included offense of murder pressure, something mental or emotional charge given parole harmless since no less, perhaps, insanity, law), than but more than cert. denied 507 U.S. man, average the emotions of the however 123 L.Ed.2d 479 That reason inflamed, could withstand. ing applies here. The lesser included offense Thus, of murder was not raised in this case. [you] as a [W]ould consider matter —con- any prejudice Dunlap range had toas mitigation, sider no matter what punishment applicable in a murder case was show, other evidence would whether he harmless. Point of error seventeen over mitigating would consider as a factor evi- ruled. sympathy dence of for the Defendant. points eighteen of error and nine show, No matter evidence would what the appellant claims teen the trial court erred in juror whether or not the would consider as refusing question venireper- him to allow mitigating factor the education social venireper- son John Alfred Lewis and other background of the Defendant. specific mitigating sons about factors. juror or not [W]hether would consider twenty appellant of error claims the factor, mitigating as a no matter what refusing trial court erred in to him allow to show, immaturity other evidence the would question venireperson Eugene Johnathan sophistication of the Defendant. voluntary Crow about intoxication as a miti ques- that form court ruled the of these gating factor. attempt tions were “an to the bind” venire- During appellant’s venirеper- voir of dire person phrased. not as permitted, were “regard- son Lewis asked whether Appellant questions sought to ask these same show, of less what the other evidence would venirepersons of other and received a run- you immaturity could consider evidence of objection ning to the court’s refusal. part the the of defendant?” The trial court During venireper- appellant’s dire of voir objection sustained the State’s to form the of following question: son Crow he asked the question attempt the as an to bind the veni- you juror reperson mitigating. view the as factor If were called as Appellant following you punishment phase read into the in of record the were now the trial, questions you other you he wanted ask Lewis: the I will ask if could eonsid- variety give particular ‘mitigat of not temporary insanity of caused would er evidence consideration), 509 U.S. by voluntary mitigation in of intoxication evidence’ aff'd criminal of- penalty attached to the 125 L.Ed.2d 290 prevented rephrasing from Appellant fense? was not fact, questions. In the trial court stated objec- The trial court sustained the State’s phrased “could questions could be as that the question. contends tion to this in de specified evidence] you [the consider of dire that the trial court’s restriction voir phrased ciding but could not be punishment,” intelligently exercising prevented him from consid the evidence could be as whether challenges. peremptory his not court did mitigation.” “in The trial ered (Tex. Trevino 815 S.W.2d 592 ruling of in that the form its abuse discretion grounds, Crim.App.1991), reversed on other of er questions improper. Points 1547, 118 L.Ed.2d 193 twenty eighteen, are nineteen and ror (1992), complained trial the defendant overruled. attempts during restricting in court erred venirepersons they voir dire to ask whether twenty-first point ap In his of error youthfulness would consider defendant’s trial court erred in over pellant claims the punishment. holding mitigation of ruling challenge for cause venire- discretion, trial court did not its abuse person Chandler Pollard because James explained: appel not that he would consider testified open either asked ended special of age in his consideration lant’s (“would you of questions consider evidence issues. youthful age any criminal defen- appellant asked venire- During voir dire dant”) attempted questions or in he where youthfulness of person Pollard whether the jurors prospective as bind the to wheth- bearing any the defendant “would mitigate they punishment er would due to might special issues. how answer” [he] (“In age dealing offender Appel- not. responded Pollard it would ..., you penalty death could consider that Pollard’s refusal to consid- lant contends mitigation lessening punish- youth him chal- er rendered youthful age a person ment the convict- lengeable disagree. for cause. We murder”).... reading of ed of Our indicates in all three com- record subject juror have held that plained of instances the defense asked challenge it is shown that for cause “where questions hopes binding particu- give juror may particular will or juror a particular lar course of action any variety ‘mitigating consider- evidence’ explaining without to them what was re- may give any weight or no juror A ation.” quired under the law. determining particular weight to evidence constitution special issues. All that the Id. requires precluded is that he not be court in the We likewise hold the trial mitigation considering evidence offered did not its discretion instant case abuse give provided a vehicle to and that he be questions ruling that the form effect to such evidence: question by Modifying improper. each has not Supreme Court “no the other The United States asking, matter what evidence jurors give attempt yet must mandated could construed as showed” weight any particular piece of say they venireperson amount bind the mitiga- might in that be offered specified mitigation” “in or evidence view the evidence Cordova, punishment. 733 S.W.2d mitigating a circum tion of “as factor” under is stances, the Court has decided the at 189. What which would therefore include precluded the factfinder must not be in instant case. circumstances involved the State, considering any Trevino, rele- or supra; prohibited See Johnson cf. mitigation of the in (Tex.Crim.App.1989)(trial vant evidence offered S.W.2d assessed, or in overruling punishment to be answer- in court did not abuse discretion juror ing question, ground punishment [citations the challenge cause on for Lynch ground omitted] this means is the fact- on What son Robert the that he finder must be allowed to evi- distinguish hear the could not between the terms “in- it_ [mitigat- dence and act Once tentionally” “deliberately.” admitted, jury may evidence Lynch is] concedes that testified that he could give weight, then it if distinction, in their individual argues make Lynch’s a appropriate, answering minds it is when as a whole reveals that he could questions which determine distinguish sentence. between the terms and there- automatically fore would answer the first Johnson, According- 330-31. special “yes” issue once intentional conduct ly, give weight fact that Pollard would no had found. been considering age punishment in does not subject him a challenge for cause. Point Initially Lynch testified that he had diffi- twenty-one of error is overruled. culty understanding the difference between Eventually, though, two terms. he In point twenty-two appel of error agreed that a he did see distinction and that lant claims the trial court failing erred automatically he would not answer the first jury a agree instruct the failure to its in issue the affirmative. At the end of his special option, answers to the an issues was dire, specifically court ques- voir the trial “yes” as аnswering as well or “no”. Lynch regard: tioned in this it We have held that is not error for a trial thing I got [The court]: One other jury court to fail to instruct the of the effect my I little unclear mind before let the agree special of their on the issues. failure they lawyers ac- decide whether want to (Tex.Crim.App.1993), Robertson v. S.W.2d cept you you juror or excuse as in this — U.S. -, t. denied cer case. 130 L.Ed.2d 94 In you degree now come Have to some Robertson, rejected we the defendant’s com differentiation between word intention- plaint refusing that the trial court erred in ally, guilt-innocence stage as used jury providing jury submit a form that the trial, deliberately, and the word as “yes”, respond, could or “no” “we can’t de stage used in the of trial? answering cide” in special issues. Well, [Lynch]: my I am not so sure that said: yours, definition I is same as but have juror simply It is the role answer distinguished my two words own “no,” special “yes” issues either or mind. nothing Conversely, it else. is not the role distinguishing [The You court]: do have juror respon- individual skirt factor it’s the sibility between the two—whether by failing to return a vote. The unimportant, as mine or not I same per- issues are framed in manner which think. mits them to be affirma- answered either

tively or negatively, purpose and it is the [Lynch]: Yes. juror process the deliberative to resolve The trial court overruled chal- vacillation. lenge upon Lynch’s “responses based (quoting Id. at 709-10 Nobles 843 whole.” . (Tex.Crim.App.1992)) rulings reviewing challenges light jury fact that a functions to cause, great afford deference to the trial we verdict, resolve the factual reach a issues and opportunity court who had the to view the the trial court did not abuse its discretion venireperson and assess their demeanor jury failing option to inform the that it is other factors that cannot be taken into ac- agree answering to fail to them count of a record. on the basis cold When Robertson, special supra. issues. See Point vacillates, venireperson equivocates twenty-two of error is overruled. ruling. Although defer to trial court’s twenty-third point Lynch expressed In his of error initial confusion over the terms, deny eventually claims the trial court erred testified that he under- ing challenge against venireper- cause stood a distinction between them. On this Lynaugh, recently in Franklin record, abuse examined the trial court did not we hold 2320, 101 L.Ed.2d S.Ct. overruling chal- its discretion (1988) continued Supreme twenty- where of error lenge for cause. Point and its decision the Texas statute uphold overruled. three is factor at mitigating While Jurek.24 twenty-eight appellant error good petitioner’s issue Franklin Proc. Ann. art. Tex. Code Crim. claims record, that the not convinced prison we are fails it 37.071 “is unconstitutional because compels a case in this mitigating evidence jurors provide mechanism which per Appellant does result. different recognition to the between give balance twenty- could Point error us otherwise. suade mitigating in- aggravating factors eight is overruled. Appellant argues ease.” volved rehearing is sus- motion for The State’s Supreme Jurek v. Court’s decision court is judgment of the trial tained. Texas, U.S. affirmed. (1976), upheld article which L.Ed.2d 929 constitutional, wrong.” The 37.071 as “is J., CLINTON, dissents. correctly points out that this issue was

State Franklin, claimed, petitioner among contended that petitioner 108 S.Ct. at 2326. The provide special things, jury should "mechanism issues other that under article 37.071 mitigat- though impose a even if permitted weigh petitioner’s life sentence” which was “not special jury issues believed ing apart its over the otherwise evidence from deliberation Issues, "yes.” requir- Id. at Special be answered and return a verdict should Texas Franklin, 487 U.S. at at 2329. a life sentence.”

69 (4) appellant, interpreted self-portrait a MANSFIELD, Judge, concurring. as for the State evidence psychiatrist a join oрinion of the ma- I the well-written angry an and appellant saw himself as separately respond jority and write psychiatrist The testified individual. violent dissenting Judge opinion. Baird’s opinion, his review based on that it was his years elapsed from the time this Over five hypothetical response in to a and case argued and formally submitted cause criminal question, appellant would commit per Court delivered its the date on which this con- a that would constitute acts of violence badly opinion. curiam A fractured society; tinuing threat to and appellant’s affirmed conviction but reformed (5) participat- appellant had evidence imprisonment from to life death sentence murder, ed, in an prior to months two State, opinion. unpublished Soria v. an attempt burglarize a church. unsuccessful 69,679, 8, (Tex.Crim.App. ‍​​‌‌​​‌‌​‌‌‌​​​​‌​​​‌​​​​​‌​​​‌‌​‌‌‌​​‌​‌‌​​​​‌‌‍No. delivered June (Tex. 58, State, 724 61 In Keeton v. S.W.2d 1994). Court, effect, found evi- adopted list of factors Crim.App.1987), we support jury’s affir- insufficient to dence considering appel consider dangerous- as to the future mative answer insufficient claim the evidence is lant’s special issue. ness jury’s answer to the support the affirmative 29, granted 1995 we the State’s On March special issue: dangerousness” “future rehearing and the case motion ordered (1) of- of the the circumstances 10, May without oral resubmitted 1995 fense, including the of mind defendant’s state contended, argument. The State in its brief working alone or and whether he was rehearing, that we failed to review the parties; other spe dangerousness evidence as to future light cial issue in the most favorable (2) nature of defendant’s calculated State, verdict, required by v. as Jackson 443 acts; 307, 2781, U.S. 99 S.Ct. 61 L.Ed.2d 560 (3) ex- forethought and deliberateness (1979) West, progeny, e.g., Wright v. and its execution; by the crime’s hibited 277, 112 225 S.Ct. L.Ed.2d record, (4) prior of a criminal the existence (1992), required by precedent and also crimes; severity prior and the Stаte, this Court. See Wilkerson v. 881 321, (Tex.Crim.App.), 324 S.W.2d cert. de (5) personal cir- age and defendant’s —nied, 671, -, U.S. 130 offense; at the time of the cumstances State., (1994); Hughes v. L.Ed.2d 604 878 (6) un- acting the defendant whether (Tex.Crim.App.1992); 142 Burns v. S.W.2d of another at der or the domination duress State, (Tex.Crim.App 356 offense; commission of the time of the State, .1988); v. 903 21 Chambers S.W.2d (7) evidence; and (Tex.Crim.App.1995); Joiner v. 825 (Tex.Crim.App.1992). 703 (8) character evidence. trial, following At evidence of future rec question, on the is little based There dangerousness by the planned was offered State: ord, crime this was a deliberate gain. pecuniary by appellant for committed (1) testimony planned had complainant gunpoint, He abducted ain methodical and calculated the murder area, him to drive to remote forced period, in a several order manner over week by stabbing him twice then killed him it to victim’s vehicle and convert to steal the expressed had or neck. He back of head cash; complainant on several kill the intent to (2) ap- testimony by police officer as doing acquaintances prior so. occasions to community reputation pellant’s in the bad (3) (2) are of Keeton therefore Factors abiding person; non-law and violent also, 871 present. Flores See de (3) (Tex.Crim.App.1993), cert. assault on an- S.W.2d evidence — -, nied, discovery U.S. prison other inmate while cell; L.Ed.2d 276 a razor in his continuing circumstances the offense show a violence so as to constitute

deliberate, taking by appellant brutal life society. threat to required close contact with the com dissent, Judge my opinion, Baird’s inter i.e., action, knife, plainant, and use aof show Texas, prets Jurek U.S. disregard a wanton and callous for life. 2958, 2950, (1976), in 49 L.Ed.2d 929 Additionally, appellant enlisted the assistance correctly, implies insofar he re as Jurek of others and directed their activities so as quires Virgi ignore this Court to Jackson v. of facilitate commission this offense. Factor sit, effect, juror nia and in as a thirteenth (1) also, present. of Keeton is See Dinkins special respect to the issues (Tex.Crim.App.), case, capital opinions cases. Our this — denied, U.S. -, rt. ce on on original both submission and resubmis (1995); 133 L.Ed.2d 59 Martinez v. sion, meaningful appellate demonstrate the (Tex.Crim.App.1996) 924 S.W.2d 693 required by Eighth review Amendment (circumstances of the may offense alone Jurek; and are cogent both characterized support finding sufficient to an affirmative analysis reasoning, taking and into account issue). special dangerousness future constitutional, applicable statutory and case psychiatric testimony There is rec- law. The fact that now reach a different appellant likely ord that is to commit future of integrity, result is not evidence of a lack of testimony acts violence as well as as to response political pressure, disregard or appellant’s bad character. This evidence confidently our of oath of office. I state (7) (8) meets Factors and of Keeton. The the members of this do not base their Court record is devoid of evidence was political opinions on but base considerations acting under or duress was at the direction interpretations of the them instead their offense; another at the lack time of this which, by very fact are law there nine (6) of evidence therefore meets Factor of us, will often differ. Is that not the reason Keeton. opinions? what we write are called attempting Other than an arrest for join opinion With I these comments break into church damaging expen- and the Court. window, glass sive stained no had record, formal criminal though there was BAIRD, Judge, dissenting. had

some he committed several Appellant’s minor nonviolent prior offenses. history This has a checkered ease record, itself, criminal in and of would not put must be in order to this dis recounted support an as to fu- affirmative answer Appellant proper perspective. sent into was issue; special therefore, dangerousness ture convicted of murder and sentenced (4) Factor of Keeton is not met. judgment en death. trial was court’s young, eighteen, at the time orally July tered This case was 1986. However, of the offense. record does argued formally this Court and submitted mentally handicapped, demonstrate However, the ease February 1989. drugs under the influence otherwise years was not five later when resolved until laboring under circumstances that would Court, per opinion this curiam delivered finding tend to militate of future 8, 1994, appellant’s conviction June affirmed (5) dangerousness. Though arguably, Factor from death to reformed sentence of Keeton met. is (Tex.Cr. confinement for life. Soria State (not 8,1994) summary, 69,679, App. No. evidence of future dan- delivered June ease, analyzed by gerousness present published). in the Our far from unani decision was Keeton, Clinton, eight Meyers Judges Maloney set and use factors forth mous. strong approaches per being overwhelming. opinion. curiam and concurred with the majority, my opinion, carefully Judge I af- ana- and dissented Overstreet lyzes appropriately but concurred with the evidence defers firmance of the conviction McCormick, And, jury Judges finding appel- to the rational the reformation. likely Miller, will in the Campbell lant commit future acts criminal concurred White today majority relies to on. The facts the affirmance of conviction but dissented itself have known the reformation. to reverse been many pointed years were out to reform Our decision sentence oiiginal by Judge Campbell in his dissent on great popular and deal was not we received submission. print of criticism from the media and the Thereafter, citizenry of this State. the State parties who have cases before Because rehearing its on June filed motion citizenry of this State deserve us Today, years more than two later the better, I dissent. appel- itself Court reverses and reinstates lant’s death sentence. OVERSTREET, J., opinion. joins this jurisdiction appellate This Court has direct penalty is capital of all eases where the death OVERSTREET, Judge, dissenting. Const., V, § imposed. art. 5. The citi Tex. error, appel- appellant’s of second authority zenry this Court with that vested in sanc- claims that the trial court erred lant appellate a court was because statewide tioning by limiting proposed the appellant thought unpopular to more be insulated defense, testimony expert of witness Dr. of appeals. decisions than the various courts Griffith, appellant’s of refusal to because designed promote the This insulation to to comply trial court’s order with the cap imposition and consistent of evenhanded by psychiatrist, Dr. the State’s examined Indeed, punishment. v. Texas ital Jurek majority that a The holds when de- Coons. 276, 2950, 262, 428 U.S. 96 S.Ct. by fendant, being psychia- after examined (1976), L.Ed.2d 929 the Su United States trist, presents psychiatric testimony on the Court, preme holding capital our sentenc dangerousness, question the trial of future constitutional, ing scheme stated: power compel the court has [b]y prompt judicial (cid:127) (cid:127) providing review (cid:127) expert of to an examination of the State’s jury’s of the decision in a court with state- choosing. Because I maintain that or court’s jurisdiction, provided a wide Texas has authority the trial court does not have the evenhanded, promote means ration- compel the issue psychiatric examinations on al, imposition and consistent of death sen- dangerousness, testimony that of future tences under law. by appellant’s expert does not constitute light foregoing history, it is clear Fifth Amendment waiver of defendant’s provide prompt that this has failed to privilege, I must dissent. judicial And, of review this case. revers submission, position original ing our it is trial, punishment phase During the of equally operating that clear this Court is as an Grigson, psychiatrist, Dr. testified evenhanded, promotes in a manner which Grigson, expert Dr. witness for the defense. imposition of capital rational and consistent having appellant thoroughly, testi- examined abundantly punishment. This it case makes opinion appellant it that fied that that this Court has abandoned clear danger. At a future would not constitute pretense meaningful appel providing Grigson’s testimony, of Dr. conclusion required by Eighth Amend late review the State requested the court to allow State State, ment. Martinez experts opportunity to have one their J., (Baird, dissenting); (Tex.Cr.App.1996) appellant. argued The that examine State — and, S.W.2d -, -, Morris v. had Fifth Amendment appellant waived his 71,799, (Tex.Cr.App. No. 1996 WL 514833 by against offer- privilege self-incrimination (Baird, J., day) dissenting). delivered this Grigson’s testimony, therefore ing Dr. 3(B)(2) appellant should be allowed Canon the Code of Judicial Con- State by experts. swayed one of their Over provides judges duct shall not be examined agreed interest, objections, trial court by appellant’s partisan public clamor fear appellant orally ordered criticism. I am not at all confident that with the (and by opinion to a interview majority the decision to submit instant it) publish psychiatrist. of that can- meets the commands State’s Appellant cooperate judge refused with the to order defendant’s to be ex- psychiatrist, Coons, expert State’s Dr. by simply conse- amined the State’s because trial, quently, only Dr. testify Coons could he has offered that he will not be a hypothetical. danger based The trial court forcing held in the appellant futurе independent because failure to follow rights. Ap- choose between two interviewed, pellant right it’s order to be that as a sanc- has the mitigating introduce tion, appellant’s Griffith, expert, Oklahoma, Dr. Eddings second evidence. 455 U.S. testifying would be limited (1982); based 102 S.Ct. L.Ed.2d hypothetical. Ohio, As a result of court’s rul- Lockett v.

ing, appellant Griffith, not to Dr. decided call L.Ed.2d 973 also has preserved by making error a bill of right ex- to not incriminate himself. The ception. rights assertion one of these should not negate the other. majority appellant holds waived his Fifth privilege necessary Amendment self- It cannot be said it is for an Grigson incrimination Dr. submitting when testified that to be into forced to an danger. would not be a psychiatrist, future examination the State’s who majority judge undoubtedly also that the trial testify appellant poses holds had will authority the danger to order examination as a the though judge to future. Even a dangerousness. Supreme permitted future Neither the should not be to order a defendant Court, examination, nor this have Court held that a defen to such an this does not mean dant waive Fifth privilege his Amendment convincing the State has no means of the against jury self-incrimination penalty when admits is appropriate the death the psychiatric testimony to Psychiatric show that he will not for the defendant. danger Furthermore, be a the future. testimony based on hand first observation is Supreme neither the Court this surely only way nor Court to rebut judge have authority held a trial has the assertion that he would not be a future dan- compel to a by ger. defendant to be interviewed opportunity has the to cross State psychiatrist appellant’s psychiatrist State’s the issue future examine to discredit State, dangerousness. juror’s In or create doubt in minds Bradford (Tex.Cr.App.1993) And, (plurality op.), opinions. S.W.2d 15 right also has the State this held that “a trial opinions court does not to of their introduce tеstimonial authority appoint psychiatrist have the to experts, hypotheticals, own based on detailed purpose examining for the Additionally, a defendant for as is is often done. there no solely relating danger evidence to requirement any psychi- his future that the State offer ousness, doing and prove danger- so was error”. atric all See to future State, also Bennett v. example, S.W.2d 671 ousness. For held that have (Tex.Cr.App.1987), McKay jury 707 there are numerous factors can consid- 23, 38 (Tex.Cr.App.1985). deciding dangerousness, er in future and in fact, alone, “the circumstances offense majority not to this chooses follow line enough if severe can sustain an affirmative Instead, they Bradford, of cases. dismiss special against answer two to issue suffi- proceed to announce a new rule that ciency challenge.” Vuong v. compelled allows examination of a defendant (Tex.Cr.App.1992). S.W.2d 929 by expert State the issue future They dangerousness. simply expand bar, must be ease several factors all, gives judges permission require rule that to important First of it is considered. psychiatric by request examination of defendant’s on note that the State sanity competency very issues of because a their doctor examine came issues, fact, proceedings. defendant has made them and extend late in did not dangerousness. punishment phase, issue future Com- occur until the after the pelled chief, clearly examination is dis- State’s case and after had tinguishable required Also, begun putting examination for on his defense. it should insanity. ineompetency By allowing trial that the order troublesome the Court writing. by judge put in the trial was not

Furthermore, cross the State did examine

appellant’s psychiatrist, and introduced Most

expert opinion of their own doctor. with the fair

importantly, it inconsistent justice judge trial

administration of for a

require capital defendant choose be- mitigating fac- right

tween to introduce

tors, right self incrimination. and his it that we put simply,

To it is inconceivable gives judges the a new law that create require capital to be

power to defendants psychiatric expert,

interviewed State’s purpose providing

for the State with attempt that will in an

information be used death, it

put the is incredu- defendant agree a sanc-

lous that this Court would punishes failing

tion that trial court had no

follow an order

authority place. For impose in the ‍​​‌‌​​‌‌​‌‌‌​​​​‌​​​‌​​​​​‌​​​‌‌​‌‌‌​​‌​‌‌​​​​‌‌‍first reasons, respectfully I

these dissent.

BAIRD, J., joins.

Timothy COCKRELL, Appellant, Texas, Appellee.

The STATE

No. 71766. Texas, Appeals of

Court of Criminal

En Banc.

Sept 1996.

Rehearing Denied Nov.

Case Details

Case Name: Soria v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 11, 1996

Citation: 933 S.W.2d 46

Docket Number: 69,679

Court Abbreviation: Tex. Crim. App.