Werner v. State

WERNER, Appellant, Peter Alan wholly Supreme without merit. As Camara, supra, Court in said: Texas, Appellee. STATE may agree inspection

We that a routine physical private prop- of the condition of No. 022-85. erty is a less hostile intrusion than the Texas, Appeals Court of Criminal typical policeman’s search for the fruits En Banc. and instrumentalities crime ... But agree we cannot the Fourteen April Amendment in these interests at stake

inspection merely ‘peripheral.’ cases are surely say

It is anomalous to private property

individual and his are

fully protected by the Fourth Amend- only suspect-

ment when the is individual instance,

ed of criminal behavior. For law-abiding

even most citizen has a limiting the cir- tangible interest

very sanctity of under which the

cumstances au- by official may be broken

his home en- criminal possibility

thority, for sanction guise of official

try under the family personal and threat

a serious we the kind [Inspections of

security ... jeopardize considering do in fact here

are property interests

‘self-protection’ laws, fire, regulatory Like most

owner.

health, housing are enforced codes cities, In some processes.

by criminal inspector by the

discovery of a violation Even complaint. to criminal

leads pro- violation discovery of a

cities where compliance only an administrative

duces

order, comply is a criminal refusal compliance and the fact again inspection, by a second

verified case Finally, as this a warrant.

without

demonstrates, in- permit an refusal crime, punishable is itself a

spection jail even sentence.

fine or

Camara, at 1732. 87 S.Ct. of the Court judgment

Accordingly, is af- reversing the trial court Appeals dismissed. prosecution

firmed J., in result.

TEAGUE, concurs

McCORMICK,J., dissents. J., participating.

WHITE,

Houston to see Kenneth Ap- Netterville. proximately 45 minutes later while he was sister, Carole, porch on the with Kenneth’s deceased, appellant saw a car driven Houston, David H. Berg, for appellant. Travis, speeding Tarbell onto Stillbrooke from Greenwillow. The car swerved to Holmes, Jr., John B. Atty. Dist. and Wil- parked miss a car and collided with Netter- Delmore, liam III, J. and Norma Dav- opposite ville’s vehicle on the side of the enport, Houston, Asst. Attys., Dist. Robert street. The car backed into Greenwillow Huttash, Austin, Atty., State’s for the high and took speed. off at a rate of Ken- State. neth Netterville came out of the house and gave appellant pistol stating a go “Let’s OPINION ON APPELLANT’S PETITION get him” instructing appellant go FOR DISCRETIONARY REVIEW way.” “that ONION, Presiding Judge. Appellant Spellman found the vehicle on A jury appellant found guilty of murder Street where the deceased Travis and his punishment years’ assessed at 10 con- passenger, Christensen, John gotten had Department finement of Corrections. inspect out to damage vehicle they which riding. Appellant were parked The evidence appellant showed that shot parallel car to the other got vehicle and Travis, killed Tarbell Griffin after Tra- carrying out flashlight a in one hand and allegedly damaged vis an automobile pistol in the other hand. Christensen friend, by appellant’s owned Kenneth Net- appellant said, testified “What the hell do terville. you think you’re doing? You hit my appeal On raised four ought friend’s car. I you.” to shoot Chris- error, grounds of the second of which con tensen recalled responded, the deceased tended refusing the trial court erred in “Well, then, why you?” don’t At this time allow him to introduce certain evidence on shot deceased the chest the condition of his mind “at the time of expired. from which wound he the offense” virtue of the police Appellant pursued two psychiatrist. officers and a The testified that he Appeals my Court of found the excluded evi deceased’s vehicle “to hold whoever hit police.” dence was not friend’s relevant to issue and car for the After he found ground overruled “yelled of error number the vehicle he stated he at him to two. car,” Appeals get up against Likewise the Court of rejected and the deceased grounds other replied, just going of error and “You’re to have to affirmed the shoot State, me, Werner v. conviction. you Appellant son of a bitch.” S.W.2d testi- 1984). 858 (Tex.App. “shrugging” fied the deceased made a mo- [1st Dist.] — Houston granted appellant’s petition step We took to deter tion with his shoulders and a s mine Appeal flashlight whether the towards him. he saw Court With overruling ground correct in the deceased’s face and the deceased the second relating crazy.” error “looked He couldn’t see the de- syndrome.1 the Holocaust know whether ceased’s hands and didn’t necessary The facts backdrop form the the deceased was armed. stated for a discussion of contention. life, protect he was in fear and to of his 21-year-old appellant left work about himself he shot the deceased in the chest. p.m. April 10:45 bought 1982. He pack p.m. six of beer and about went to Appellant did not know the deceased and the Netterville residence on Stillbrooke be- apparently had not seen the deceased petition V.T.C.A., discretionary 1. In his appel mony, erroneously interpreted review Penal review, presented grounds Code, lant four 1.07(31), all relat properly apply failed to § ing ground to the second of error. He contends (Tex.Cr.App. McClure v. 575 S.W.2d 564 Appeals analysis the Court of V.T.C.A., erred in its 1979), erroneously upon Wagner relied Penal as the court mis 1985). (Tex.Cr.App. 687 S.W.2d 303 interpreted relevancy of the excluded testi question. fore the occasion At no time things grew up. about these as he When during was he asked or did asked had related what his of, grandson he state that he was a son or him about the concentration father had told Holocaust, survivors of the or that stories record reflects: camps, the about the Holocaust had influence me Basically what he related to “A. upon his state of mind at the time of the having his sorrow for his father offense. having after seen see this situation at he had seen when he was preserved excluded was what exception. for review informal bills of the Holocaust. appears It from the record an hour that “Q. Basically, expressed he sadness for and a half after the officers arrived at the gone through. his had what dad shooting2 scene of the officers two took gone “A. Not what his dad had appellant patrol police in a car to the through, but what at that time he station. It was the conversation in the putting through his was father patrol appellant sought car that the in- incident, he the situation was jury. troduce before the in. Officer N.K. McErlane testified he drove “Q. shooting? Because of the the car question on the occasion in fact that he was ashamed for “A. The appellant heard a conversation with the through his that putting father Holocaust, about the but that there was no again.” interrogation appellant. He did not con- appellant Hartman also related significant,

sider it Officer did not include it in during the report offense and did stated he knew how Jews felt relay the infor- anyone mation to prose- being connected with the a result of his hand- Holocaust as cution of the case. patrol McErlane stated the back of the car and cuffed conversation had not been called to his being away.” “taken shortly attention until before he testified. appellant When asked if had said that He remembered the had stated growing up he had decided because appellant’s father was a survivor of the experiences father’s to be able to defend Holocaust, had been “in camp some ... felt threatened. Hart- himself he Officer during the forties” and that father still man answered: had memories of those events which both- exactly like that. We discussed “Not (the father). ered him McErlane didn’t see very knowledgeable guns and he was any relationship between the Holocaust that, through He reflected that’s that. shooting. All he could recall of the * * planned protect how he himself. conversation was that in- the father was ready he if the time ever that would volved the Holocaust. added.) (Emphasis arose.” Officer Duane Hartman was also in the gave signifi- testified he no Hartman patrol transported car when was statements, did not mention cance to police to the station. He testified that for report, and did not the same in offense appellant voluntarily 10 or 15 minutes prosecutor relate the information to family, talked about his that his father and day the trial. When very until that Holocaust, grandparents were in the that a replied, “As why, Officer Hartman asked his father had come from Poland and had he becoming that was what result of aware manner, been raised in a certain and tried defense on the basis going was to use a (appellant) to raise him in the same man- the Holocaust. thought appellant ner. He had mentioned testimony of appellant’s proffered father had been in a Nazi con- also Roden, psy- camp people Rudolph centration and had a board-certified witnessed Dr. going argument gas chiatrist, degree in Russian without cham- received a who bers, University in and the father had told from Charles Literature shooting long before officers arrived. it was how after not clear as to record is 2. The Holocaust, injustices was the and that his Prague, Czechoslovakia in a medical knowledge shaped thereof view self- degree Queen’s King- from University defense, ston, that the act of the deceased in Ontario and a Ph.D. from the University “running leaving of Montreal in 1965. It a was into car and the scene stated Dr. had country Roden come to this unjust view, was an act in the Canada; years three before from sought right wrong by and he detain- in psychiatry; board-certified that Dr. Ro- ing police. the deceased for the Dr. Roden particular den’s interest was research into testify appellant’s background the area of survivors and children of sur- protect him to caused make the decision to vivors of camps; Nazi concentration threatened, if his life himself the doctor himself was in con- incarcerated though alleged at the moment the offense camps centration from 1940 It thinking occurred was not of the Holo- was also that Dr. offered had lec- Roden caust, “was mind his state of to defend tured and written articles in the field of his from family himself because he comes specialty. He had conducted in seminars not.” that did pre-Freudian Freud, general and Freud’s psychological chauvinism, theory, male sur- objected proffered The State testi- syndrome, vivor and survival. mony ground of Dr. Roden on the of rele-

It proffered that Dr. vancy, urged Roden would that self-defense the testify beginning that in August, “test be in by jury applying to made the offense, four months after the alleged he ordinary the standard of an prudent and began appellant to see patient, the as a and person position in the Defendant’s at the saw him 18 or some Dr. Roden times. time of the offense.” appellant’s paternal grand- learned that the appellant there was disclaimed Jewish, paternal grandfa- mother was insanity issue of at the time commis- Protestant, grandfa- ther was and after the urged sion of the “the law but ther’s death in 1941 or appellant’s requires given jury which that the all grandmother and his half-Jewish father bearing and the and family other members of facts circumstances on the the were placed in camps, concentration mind that the fa- state of of the Defendant.” ther grandmother survived, the other proffer The court overruled the of Dr. members of family the did Dr. not. Roden testimony stating: Roden’s also appellant learned grew up with “THE light COURT: In of the Defend- stories of concentration camps told to him testimony, ant’s that the fact there is no grandmother, his father and who relat- legal authority such testimony ed at all for seeing people beaten to who death did coming fight not Dr. before ap- jury, back. Roden because determined pellant alike, showed “some” of are people everybody the characteris- there no two syndrome different, tics of an individual who has the everybody from comes a dif- associated with children of survivors of background,, things hap- ferent different Nazi camps. concentration pen past, in the there spe- because is no people cial breed of that should be treat- It was also stated Dr. Roden testi- differently, ed all must come within the fy that the appellant told him of the events that standard law that we have in the night occurred in question. on Dr. Texas, Roden appellant although related him the the Holocaust is told (appellant) pulled trigger moment example an of man’s inhumane acts to- that he thinking wasn’t anything about ex- man, their go- wards fellow Court is cept protecting himself. Dr. Roden would ing to sustain the at this objection time.” however, testify, “that one need does not developed the officers’ Later be thinking of an event for another event in motion hearing earlier in effect, in one’s life to have an a subcon- part as agreement offered him;” limine was scious effect on that the too, This, was not exception. injustice, greatest disliked the bill and one of the Hernandez v. permitted to be introduced before the (Tex.Cr.App.1972); Ricondo v. grounds relevancy. on the 1983). (Tex.App. Antonio S.W.2d 439 — San testimony of There is no claim that the in his own behalf was limited It is also settled that evidence of collat- any way. simply He did or restricted logical eral facts which does not some testify suffering he was from a not prove disprove or the matters way tend syndrome, Holocaust or that it had issue, is not admissible. And this rule of night. effect on his actions that It was the ir- particularly exclusion is true when mentioned at all. What does as- sympathy tends to create relevant evidence it sert is that was error to exclude his oral family, preju- for the deceased or his or statements to the officers and the jury. defendant before the dice the psychiatrist. An examina- Anno.P.C., Ed., pp. Branch’s 2nd § appel- tion of the officers’ shows 557, 558. during lant referred to the Holocaust V.T.C.A., relies Penal car, patrol conversation but Officer (Evidence), provides: 19.06 which basically ex- Hartman described as an murder or prosecutions “In all pression of sorrow that his father had been voluntary manslaughter, the state or now be through the Holocaust and would offer tes- permitted defendant shall be Appel- confronted with arrest. and cir- timony as to all relevant facts lant made no claim to the officers that he surrounding killing cumstances acted self-defense because of the Holo- existing previous relationship be- syndrome. appel- Dr. Roden caust stated deceased, tween the accused and the to- thinking lant him he of the told was not gether with all relevant facts and circum- ques- Holocaust at the time of the event in going to show the condition of stances tion, that showed “some” of the the mind of the accused at the time characteristics of child of a survivor of added.) Holocaust, (Emphasis the offense.” opinion that in his he could have had a him. subconscious effect on evi- light of the traditional rules of commentary

It is well established that evidence must to 19.06 dence the Practice § Patterson) be relevant to a contested fact or issue to (Searcy felt that need for and State, v. Stone (enacted admissible. S.W.2d 1257a, Y.A.P.C., be 574 1925 Article State, 85, Aranda v. (Tex.Cr.App.1978); 89 19.06, 1927), ob- the forerunner of was § (Tex.App. 640 S.W.2d 766 Antonio brought questioned why scure and was — San 1982). has that in It been said order current Penal Code. forward determine whether evidence is admissi held former Article 1257a it was Under ble, pro judge compare the trial should its not general rules of evidence were that value, if any, prejudicial bative with the by the stat- changed or extended or limited inflammatory aspects testimony. State, 239 v. 105 Wheeler ute. S.W.2d State, 579 206, (Tex.Cr. Ruiz v. 209 S.W.2d Anno.P.C., 4 (Tex.Cr.App.1951); Branch’s State, App.1979); Albrecht v. 486 S.W.2d 2200, Further, Ed., Article p. 557. 2nd § 97, (Tex.Cr.App.1972). The determina 99 testimony ad- hearsay make 1257a did not admissibility this is within the sound tion of or render admissible missible v. Jackson judge. discretion of the trial objectionable, which otherwise would State, (Tex.Cr.App.1979); 575 S.W.2d 567 opin- an testimony which involved such as State, supra. See also Fancher v. Stone v. v. the witness. Russell ion or conclusion of State, 836, (Tex.Cr.App. 840 659 S.W.2d State, 469, 622 45 S.W.2d 119 Tex.Cr.R. State, 640 v. Aranda 1983); S.W.2d State, (1931); Tex.Cr.R. Childers v. 1982). That deter (Tex.App. Antonio — San (1947); 453, 4 Branch’s 202 S.W.2d appeal will not be reversed on mination 2200, Anno.P.C., Ed., p. 557. 2nd § by the unless a “clear abuse” of discretion State, (Tex. State, In Fazzino v. 531 S.W.2d is shown. Williams judge trial wrote: Cr.App.1976),this Court (Tex.Cr.App.1976); 535 S.W.2d 19.06, “Section like predecessor, its argues The State that was not 1257a, V.A.P.C., Art. does entitled self-defense, not extend the to the defense of certainly deadly self-defense, rules of evidence to force hearsay admit testi- un- case, der the despite facts of the mony “gen- that would be otherwise inadmissi- instructing erous trial court” State, supra ble. Jones v. S.W.2d [515 proffered the issue. Thus the evidence 126], and authorities there cited.” was not material to contested issue in State, (Tex. In Erwin v. 531 S.W.2d 337 case, excluded; properly was that Cr.App.1976),it was stated: raised, if self-defense was evidence of the “The State’s reliance this statute asserted Syndrome” “Holocaust prop- misplaced, however. It is [Sec. 19.06] erly impermissible excluded as an attempt well established that the statute neither right broaden the beyond self-defense limited, changed, gener nor extended the parameters that by V.T.C.A., established al rules of evidence relative hearsay. 1.07(31). Penal 9.32 and §§ State, (Tex.Cr. Brooks 475 S.W.2d 268 deadly used force in shooting App.1972); State, Jones v. 515 S.W.2d the deceased in pistol. the chest with a 126 (Tex.Cr.App.1974).” (Deadly Section 9.32 Force Defense of See also Love v. 681 Person) provides deadly the use of force is (Tex.Cr.App.1979); Calamaco v. 650 justified only in self-defense when three (Tex.App. S.W.2d (1) Antonio present: conditions all are the defend- — San 1983) (no pet.) justified ant using would have been 9.31; (2) person force under a reasonable § gives Section 19.06 no more in the defendant’s situation would not have special general comfort than the rules of retreated; (3) deadly the use of force evidence. As the Appeals pointed Court of reasonably believed to be immediately out in its key word necessary protect against the defendant “relevant,”4 19.06 is and that it had another’s attempted use or use of unlawful authority found no testimony, regard- force, deadly prevent or to the imminent less relevancy or materiality, is admissi- specified commission of violent crimes. ble under such statute if it relates to facts and testified he did not see going circumstances to show condition any weapon in possession of the de of the mind of the accused at the time of companion, ceased or his Christensen. He etc. not, plainly did and could not have testified Appellant argues the excluded evidence necessary reasonably that he believed it self-defense, was material to his claim of shoot the deceased in order to defend him deadly that his use of force arose from a against attempt self use or deceased’s him, perception, reasonable to that he need- deadly ed use of force. In absence ed deadly to resort to the use of force for attempted deadly use of evidence of use or protection, self per- and that a reasonable deceased, statutory force de son, background experience, with his and available, permitted by fense 9.32 is not § would not have retreated. jury and a defendant is not entitled to a The trial court did not find that the ex- State, Ogas instruction. See 655 S.W.2d v. cluded evidence was relevant and 322, 1983)(no therefore (Tex.App. 324-325 — Amarillo admissible, and for State, there to be reversible pet. history); 644 S.W.2d Jones v. error 530, 1982) the trial court must clearly (Tex.App. Corpus Christi — (no State, abused its discretion. pet. history); Bray v. 634 S.W.2d State, (Tex. 3. § it was held 19.06 did not autho- 4. S.W.2d 946 In VanSickle v. Fazzino 1982, ref'd.), rize admission in the murder case of a App. pet. pointed witness' it was Worth — Ft. terms, statement that defendant’s wife stated before "by very out that its limits itself § 19.06 having her death that she was an affair with to relevant circumstances." facts and another man where the witness had no direct knowledge alleged of the affair. 370, (Tex.App. 1982) (no 372-373 It did not appellant establish that did — Dallas Further, pet. history). nothing there is fact act under the influence of the Holo record to indicate a person reasonable in caust on the night of the offense. See and appellant’s circumstance would not have State, Wagner 303, cf. v. 687 S.W.2d retreated, statutory hence the defense was (Tex.Cr.App.1984) (Opinion Appellant’s on not raised and need not have been sub Rehearing). Motion for The self-defense mitted to jury. State, Ogas supra; permit statutes only the use of force when Bray State, supra. Thus the excluded degree person and to the a “reasonably evidence was not relevant to real con immediately believes” it necessary. As case, tested issue in the and the court V.T.C.A., Code, 1.07(31), stated Penal § ruling the same inadmissible did not err. “reasonable belief” is one that would be held “ordinary prudent an man in may, Be that as it even if the self- the same circumstances as the actor.” See validly defense issue was before the State, Williams v. 630 S.W.2d proffered testimony was still immateri (Tex.Cr.App.1982) (Opinion on State’s Mo police al. The officers related tion Rehearing). Although the test as spoke Holocaust, of the misgivings but his sumes may that a defendant appear act on shooting about the and the effect upon his ances as viewed from standpoint, Kil father were future oriented and did not State, (Tex.Cr. liner v. 516 S.W.2d necessarily explain appellant’s state of App.1974),the test also assumes the “ordi mind at the time of the offense. Dr. Ro- nary prudent man test of tort law.” Prac that, den’s although appel Y.T.C.A., tice Commentary to Penal lant continued to disclaim he was not think Patterson).5 (Searcy 9.31 ing of the Holocaust at the time of the offense, he showed “some” characteristics The evidence only excluded tended to syndrome associated with children of possibly appellant show that was not an Holocaust, survivors of the ordinary prudent respect man with same have had a subconscious effect self-defense. This did not entitle on him. All that can be inferred from this to an enlargement of the statutory defense evidence is that may have been psychological peculiari- account of his susceptible more to actions in self-defense. A point ties. similar was recently made in (Tex. retreated; In Fielder v. 683 S.W.2d (Emphasis ..." This sub added.] 1985), App. Worth the Court wrote: ‘objective’ section sets out an standard and — Ft. 9.31(a) (Ver- "TEX.PENAL subjective CODE ANN. sec. question not a standard. The is not 1974), statute, non pro- this state's self-defense whether the defendant would not have re that, person justified using vides against ‘a treated, force per but whether or not 'a reasonable degree another when and to the son’ in the same situation would not have reasonably immediately believes the force is retreated. See Semaire v. 528, necessary protect [Emphasis himself ...". J., (Tex.Crim.App.1981) (Douglas, dis Then, added.] 9.32(3) TEX.PENAL CODE ANN. sec. J., (McCormick, senting) dissenting); Dy (Vernon 1974), that, provides per- ‘[a] State, 577, (Tex.App.— son v. 654 S.W.2d 579 justified using deadly against son is in force 1983), (Tex. aff'd, Fort Worth 672 S.W.2d 460 degree another when ... and to the he reason- Crim.App.1984). requires The statute that the ably deadly immediately believes the force is retreat, safely, defendant if he can do so be necessary...”. [Emphasis Both of added.] taking Searcy fore Patterson, human life. See III and statutory subjective these subsections set out a Commentary Deadly Practice standard of reasonableness. The defendant’s Person, Force in 1 TEX.PENAL Defense of state of mind at the time of the is incident 346, (Vernon 1974); CODE ANN. and 348 therefore, controlling ques- the factor. The State, 399, (Tex. Valentine v. 587 S.W.2d becomes, tion whether or not the defendant Crim.App.1979). obligation The to retreat reasonably deadly believed that the use of necessary arises at the time it becomes for the necessary. force was deadly requires to defendant use force and person’s deadly “A use of force is limited situation, possi retreat from the immediate application 9.32(2), of sec. which states State, 704, Sternlight ble. See v. 540 S.W.2d person justified using deadly that is ‘[a] State, (Tex.Crim.App.1976); Young v. against per- force another: ... if a reasonable (Tex.Crim.App.1975).’’ 530 S.W.2d son in the actor’s situation would not have State, Gonzales v. extent McClure can be interpreted S.W.2d to au- V.T.C.A., (Tex.Cr.App.1985), regard with to thorize as Dr. testimony such Roden’s Code, 19.04(c) (Voluntary Penal man- the instant case it is § overruled extent slaughter), also “reason- which utilizes the of the conflict. able man.” Appeals We conclude that the Court of “Appellant to contend that be- seems right in overruling ap- reached the result Hispanic cause he is farm who an worker pellant’s ground of error #2. Under the was living a Caucasian woman on a with circumstances presented, here the Court of granted low should income he more its Appeals analysis did not err in of V.T. etc., degree insult, latitude in the of suf- C.A., Code, 19.06, Penal or erroneously § ficient him. enrage to Yet fails Code, V.T.C.A., interpreted Penal to recognize of that standard 1.07(31), together when taken with § man, person ordinary reasonable of did prop- 9.31 9.32. Nor that court §§ temper, employed precisely is to avoid McClure. While the erly apply fail to of applications different of the law man- Wagner Appeals of Court did cite slaughter defendants of different to (Tex.Cr.App.1985), a discus- color, races, creed, sex, or social status.” proper sion of that case is not essential to a McClure relies disposition appellant’s of contention. 575 S.W.2d (Tex.Cr.App.1979), a mur- judgment Appeals of the Court of prosecution der volun- where the issue of affirmed. tary manslaughter was raised testimony. testimony McClure’s There the CLINTON, J., dissents. psychiatrist of a that suffer- McClure was TEAGUE, dissenting. Judge, ing depression from chronic and disassoci- opinion’s majority interpre- Because the phenomena ated prior shooting to wife V.T.C.A., Code, tation Penal Section 19.- was excluded when offered on the issue of erroneous, clearly totally I dis- voluntary manslaughter pas- and sudden light way majority sent. sion. There the Court wrote: 19.06, opinion interprets to Section me at excluding “The error in least, closely something resembles that (sic) of these three witnesses were com- painted Piscasso when he was a pounded by the refusal to Dr. Hud- allow very young child. testify dleston before His jury. clearly testimony certainly pro- was under 19.06 is written and admissible Section V.T.C.A., going Penal as vides as follows: § appellant’s to show state of mind at the prosecutions In all for murder or volun- time of the offense. Both Huddleston’s manslaughter, state or tary defend- lay and that the three wit- permitted to offer ant shall be nesses were relevant de- all as to relevant facts circumstances theory only fensive guilty killing surrounding previous and the manslaughter, voluntary and not mur- relationship existing between the accused der.” with deceased, together all rele- going vant and circumstances First, facts reference 19.06 the condition the mind show McClure quoted as dictum essentially accused at the time (My offense. light finding of the court’s there emphasis.) was reversible error the exclusion of non-expert part of our law Sec- This statute has been a at witnesses. ond, noted, as 19.06 not ex- and is evidence that the earlier does least since the Legislature recognized the offer a that state of tend rules of evidence and by slayer the be considered broader basis for admission of evidence. mind of was to Third, Legislature placed and McClure case are of fact. The the instant the trier on the admis- distinguishable the or limitations Lastly, on facts. the no restrictions evidence, However, sibility except of such save Legislature. So saith our the terms, go such evidence must very that to the condition statute’s before evidence is ad- mind of of the the accused at the time of on the issue of the defendant’s missible offense, majority opinion the his mind at the time of errs state or condition of holding in that it did otherwise. The fact the such evidence must be rele- might that this erroneously any Court have in- What this means to me is that vant. terpreted the in past justi- going statute the is no evidence to the defendant’s state of fication for this Court to continue to com- time the offense was commit- mind at the admissible; pound interpretation. merely the error of ted is the statute re- proof stricts the of the state of mind to statute, interpreting holding this going to relevant facts and circumstances proffered that that Peter the state of mind of the defendant at the Werner, Alan hereinafter referred to as is saith time the offense committed. So appellant, wanted admitted into evidence Legislature. our evidence, majority was inadmissible opinion appears to subscribe to the rule “Relevancy” defined to be ordinarly is see, hear, directly that because we cannot proof perti conduces to the of a that which mind, person’s or feel the state of another hypothesis pertinent hypothesis nent be —a testimony going person’s to another which, sustained, ing logically would one mind is conjecture based on mere influence the issue. Hence it is relevant to inadequate therefore has an data base for in put evidence circumstance which admissibility. Wigmore its Dean made proposition tends to make the at issue ei thinking short shrift of such foolish when probable. Waldrop ther more or less following: argument he stated the “This 138 Tex.Cr.R. 133 S.W.2d 969 enough; much, proves (Tex.Cr. finical and it too App.1939). jury if valid it would forbid the to find a dissenting opinion In the that he filed supposed per- verdict state of a cause, pending this when they required son’s mind. If are and al- Appeals, Houston First Court of Justice fact, lowed to find such a it is not too much Levy correctly court of that observed

to hear such from a witness who following: very purpose “The of 19.06’s person exhibiting has observed the in his sweeping language distinguish was to operations conduct the of his mind.” 2 J. particular ‘mind of the accused at the time Wigmore, Wigmore Evidence, Sec. 661 from the mind of the theo of the offense’ (3rd ed.1940). at 773-74 man,’ prudent retical ‘reasonable and unmistakenly permit jury, Because Section 19.06 is as the trier of fact —not so written, clearly killing this court has the court—to evaluate the in such no business trying Werner light.” to rewrite it so that it will read as 1984). (Tex.App. some members of this Court desire it [1st] — Houston read. It not the function of this Court understanding My 19.06; to rewrite Section the function it is proof regarding Dr. Roden is proffer of interpret of this Court the statute as it is that Dr. Roden would not have testified to written, and, instance, in this because the issue that had to be ultimate factual unambiguous statute is written in lan- instead, but, jury, would resolved guage, subject only interpreta- it is one merely supplied jury with back- have give tion. This Court should the statute mind ground data on the state of meaning Legislature the broad question appellant had at the time obviously intended it to have when it enact- finding what the order to aid the ed the statute. of his mind appellant’s state or condition thus, shooting; supra, any relevant was at the time of the fatal Under Section that be- going explained to them facts and circumstances to show the suffering from the condition the mind of the accused at the cause the Syndrome” this of “The Holocaust time of the offense is admissible evidence. effects 648

affected his or independent yet condition of mind research to find has a sin- at the time the shooting. of fatal gle reported court case which has discussed syndrome.1 this question, therefore,

The relevant is whether methodology Dr. Roden’s had the Although appears paucity to there be a required general acceptance whether —not regarding of case law “The Syn- Holocaust was, addition, general acceptance there in a drome,” this in itself should not have been syndrome of the Holocaust derived from for the judge reason trial to have excluded methodology. Dr. to testimony; contrary, Roden’s proffered testimony The of Roden on Dr. probably this why the best reason such Syndrome”, “The Holocaust and how it af testimony should have been admitted in fected the condition of the mind appellant’s high- this case. Dr. Roden’s deceased, at the time shot should ly relevant on the of the condition issue of make anyone it obvious to it comes appellant’s state of mind at the time he within that expert opinion the rule testimo shot, fired the fatal have aided ny on jury issues to be decided jury, probably all of whom totally were admissible where the of the ex conclusion syndrome, with type unfamiliar this in bet- pert jurors is one which would not ordinari deciding ter what the state or ly be able to draw for themselves. “But condition of his mind was when he shot the infer, jurors competent when the are not deceased, suffering and how his from “The greater without the of skill their aid than Syndrome” Holocaust affected the condi- own, probable existence of the facts to tion of mind at that time. ascertained, be or the of their likelihood subject might Simply because a be occurring proved, from other facts actually expert mystery professional in the of opinion evidence is admis shrouded rendered Holloway light sible.” knowledge, 613 S.W.2d skill or of that knowl- (Tex.Cr.App.1981). 500-01 Hop Also see edge should not from be withheld kins v. (Tex.Cr.App. of in because some fine distinction the ordi- 1972). evidence, rules of nary majority which the course, opts for. Of “Just when a subject “The Syndrome” Holocaust principle discovery scientific crosses the or appears type new syndrome be a of experimental line between the and demon- psychiatric Excluding circles. reference a stages is to define. strable difficult Some- Psychia- one book entitled Adolescent twilight Studies, where this zone evidential try: Developmental and Clinical recognized, (1982), principle p. at all force of must other references that long go way counsel and while courts will for the directs us are newspapers. My admitting expert articles found in three deduced from a My independent Psychiatric' Terminology," Comprehensive research also reveals that the following (1984); have been the sub- Virag, articles written on Psychiatry 521-528 "Children of ject: Kestenberg, "Psychoanalyses of Children Children’s the Holocaust and Their Children: Survivors From Nazi Persecution: The Working Through Psy- Trauma in Current Parents,” Continuing Struggle of Survivor 5 Vic- Process," chotherapeutic Dynamic Psychother- Danieli, 1980); timology (Spr-Fall 368-373 1984); (Spr-Sum Schmolling, apy 47-60 "Hu- „ "Countertransference the Treatment Reactions Nazi man Concentration Study of Nazi Holocaust Survivors and Their Summing Camps: Up,” A Journal Human Children," Victimology (Spr-Fall 355-367 Roden, (Fall, 1984); 108-120 "Children of Stress 1980); Ammon, "Symposium Psychody- on the Survivors,” Psychiatry Holocaust 10 Adolescent Psy- Psychiatric namics of the Holocaust— Steinitz, (1982); “Psychological-Social Ef- 66-72 Aspects,” Dynamische Psychia- chohistorical tric Aging fects of the Holocaust on Survivors and Nadler, Kav-Venaki, Gleitman, (1984); Families," Gerontological Their 4 Journal So- "Transgenerational Effects of the Holocaust: Ornstein, 1982); (Spr-Sum, cial Work 145-152 Aggression Externalization tion of Genera- Second Life-Cycle Ex- "The Effects the Holocaust Survivors," oj Con- Holocaust 53 Journal periences: The Creation Recreation of Fam- (1985); sulting Psychology & Clinical 365-369 ilies,” Psychiatry 135-154 Journal Geriatric Krell, Survivors Children: "Holocaust and Their (1981). Psychiatric Consequences and Comments on

649 879); page Fatigue “The Battle well-recognized principle Syn- scientific or dis- covery, thing drome;” from which the deduction “The Nam Viet Post-Traumatic sufficiently is made must be established (see Syndrome,” Miller v. 338 Stress gained general acceptance par- in the (Henderson, 673, (S.D.1983) J., 678 N.W.2d belongs.” Frye ticular field in which it v. Felde, dissenting opinion); 422 State v. States, 1013, (D.C. 1014 United 293 P. (La.1982); Syn “The Policeman's So.2d 370 1923). However, courts should never be drome,” Binder, Psychiatry see unduly prejudiced against the introduction 1982);” (2nd Everyday Practice of Law ed. upon expert that is based (Id.); Syndrome,” “The Post-Concussive theory infancy. that is in its Most courts Syndrome;” “The Low- Whiplash “The agree that “neither newness nor lack of Syndrome;” Syn “The Lover’s Back certainty absolute ... suffices to render it (Peo drome;” Syndrome,” “The Love Fear Every in court. useful inadmissible new 362, 409, Cal.Rptr. 2 Cal.3d ple Terry, v. day must have development its first (1970); Delu Organic 466 P.2d 961 “The F.2d Stifel, court.” United States v. Syndrome;” sional “The Chronic Brain (6th Cir.1970). (Illinois Reed, Ill.App.3d Syndrome,” v. Although I prefer to have this (1972); 290 N.E.2d 612 and “The Holo complete subject record more on the Tomorrow, Syndrome.” caust there will nevertheless, Syndrome,” “The Holocaust I list, probably be additions to the such as requisites find that all of the for the admis- Syndrome.” Appellate Judge “The Court sibility of Dr. Roden’s have been instance, challenge by In this there is no State, supra, satisfied. See Holloway v. qualifications Dr. Roden’s the State to topic, requisites which discusses the for testify subject Syn- on the “The Holocaust admissibility expert of an witness’ testimo- impressive cre- drome.” From his list of ny. Hopkins supra. Also see dentials, study subject, as well as his of the relatively large per- When a number of appears possess special Dr. Roden sons, having symptoms, the same exhibit a knowledge upon specific matter about psy- combination or variation of functional expertise sought. his was which purely chiatric disorders that leads to emo- tional stress that causes mental intense scientific, technical, special- If or other trauma, i.e., anguish or emotional trauma knowledge the trier of fact ized will assist having physical no direct effect to better understand the evidence or deter- body, psychiatrists put persons those under issue, qualified a witness is mine a fact Today, one or more labels. we have the skill, by knowledge, experi- expert as an following Syn- labels: “The Battered Wife education, ence, training, or and he should drome,” (see post); “The Battered Woman testify in the form of be able to Syndrome;” Syn- “The Battered Child evidence. drome;” Syn- “The Battered Husband instance, subject I find In this that the drome,” (see Steinmetz, Battered “The Syndrome” beyond the “The Holocaust Syndrome, Victimology,” Husband An In- average lay person. ken of the (1977-1978); Gelles, ternational Journal appel- was entitled to know that when the Myth “The of Battered Husbands —And he lant fired the fatal shot believed Violence,” Sanity Facts Ms. Other About past experiences, his if his life because of (Oct.,1979); Schultz, Assaulter,” “The Wife threatened, pro- was ever he would act (I960);” Therapy “The Bat- 6 J. Soc. himself, why he tect and that is acted Syndrome;” Parent “The Familial tered did, i.e., in which he the manner (see Syndrome,” Abuse Child Sexual State affected, not mind at the time was state of Middleton, 657 P.2d 1215 Or. visually saw on the only by that which (1983); Rape Syndrome,” “The Trauma because of night question, but also (see “Admissibility, Prosecu- at Criminal him to necessary tion, belief that it was Testimony Rape Trauma Expert he comes from a A.L.R.J)th, commencing at defend himself because Syndrome,” themselves, family who did not I defend thus cause find that Dr. Roden’s causing perish them to in the Holocaust. both relevant and material on the issue proffered testimony Dr. Roden’s as to what state of mind or condition being effect a of descendant a survivor of shot, he of mind when fired the fatal I upon appellant, “The Holocaust” had the as opinion’s majority must dissent to the con- danger, to his reasonable belief of trary holding. only relevant and material as to his of state majority opinion The appears place to mind, it but was also relevant and material stock in the much fact that at no time self-defense, on his defense of the on which during testimony was the jury was instructed. asked or did that he was a son or It be probably easily argued can that the Holocaust, grandson of survivors of the or state of mind or of condition a defendant’s that stories the any about Holocaust had not, things, suscep- mind is in the nature of upon influence his state of mind at the time Hence, knowledge. tible of firsthand testi- me, the of offense. To this reflects or mony directly on of condi- the state mind or opinion’s majority indicates the total lack of always tion of a defendant’s mind should understanding relevancy and materiali- provisions be excluded. But for the ty. testimony Without from Dr. the Ro- 19.06, might supra, Section that rule be den, any testimony such from the However, appealing. Legislature the when truly would have been irrelevant and imma- 19.06, of this State enacted if it had Section judge proba- terial trial would have admissibility intended to limit the of testi- bly admitting committed error by it into mony going to the defendant’s state or However, evidence. had Dr. Roden been condition of his mind at the time the of- permitted testify, to it be should obvious to easily fense was committed it could have anyone reading that we would be a record However, stated this. it chose not do so to presently far different from the one that is graft and this exceptions, Court should not assuming before there would have us— limitations, or place restrictions the stat- appeal. been an Legislature ute did that the not make or apparent to me It that what causes the intend to make. awfully opinion wrong to be majority so condi- The existence of a state mind or interpretation of lies in the its Section 19.06 may proved tion of mind of another be that, implicitly, at it is fact least founded produce it. circumstances which would premise wrong in that it con- Thus, knowledge proved by may be evi- proffered testimony strues the to show dence of A person what was told. However, specific intent. as coun- lack may proved state of mind be exter- also emphasize for the has to sel tried nal person manifestations of the from Court, “Appellant to this offered never which may the state inferred. John See specific ‘special’ on the issue of or evidence Dutton,

Hancock Mut. Co. v. Ins. Life Rather, he intent. offered evidence (5th Cir.1978) (Daughter F.2d 19.06, Section Tex.Penal to under permitted testify as to whether insured show the of his mind at the time condition him.) Also believed his wife would shoot (P. 8, P.D.R.) Appellant’s of the offense.” see Pegelow, Bohannon F.2d Thus, premise, operating from this false (7th Cir.1981). majority opinion,just like

Thus, instance, strangling question appeals, in this the court of finds itself to see should be whether could have re- because fails the distinction be- appreciable Ro- a lack of ceived aid from Dr. tween evidence offered show might given kill specific den’s have intent to and evidence offered guidance determining ap- or them what the to show the defendant’s state condition pellant’s offense state or the of his mind of his mind at the time the condition being un- was at time he Hol- committed. Not satisfied with shot deceased. between the loway supra, page at 501. Be- draw a valid distinction able issues, majority opinion, two like the what the condition of the defendant’s mind opinion of appeals, the court of then mixes have been when the offense was apples oranges Robinson, with get grapefruit juice committed. See 2 Criminal by trying 131(a), provisions Defenses, to tie the Law Section Section footnote 4. governing 19.06 to the law the defense of agreement All courts are not in that ex- self-defense. pert testimony in “The Battered Woman Syndrome” type majority opinion always case is does not cite admissible. us to Some courts held authority, nor I that such any, have found which relevant issue of self-defense and expressly holds that under Section admissible, therefore see prosecution murder, Allery, State v. for the offense of (1984); 101 Wash.2d 682 P.2d 312 goes to the condition of the 178, Kelly, State v. 97 N.J. 478 A.2d 364 mind of the defendant at the time of the (1984); Leidholm, State v. 334 N.W.2d 811 commission of the before it is ad- (N.D.1983); Anaya, State v. 438 A.2d 892 missible, must be relevant on the issue of (Me.1981); State, 580, Smith v. 247 Ga. 277 the defense of self-defense. Section 19.06 (1981), remand, S.E.2d 687 Ga.App. 159 worded, clearly permits is the defend- 183, (1982); 283 98 S.E.2d Hawthorne v. present ant any “relevant facts and cir- State, 408 So.2d 801 (Fla.Dis.Ct.App.1982); going cumstances to show the condition of Middleton, 427, State v. 294 Or. 657 P.2d the mind of the accused at the time of the (1983); 1215 States, Ibn-Tamas v. United 19.06, offense.” supra, Under Section (D.C.1979), 407 A.2d 626 appeal after re- admissibility of evidence is not limited mand, (D.C.1983), 455 A.2d 893 other the law of self-defense. courts have held that testimony such Today, majority opinion rules out evi- admissible for reasons other than self-de- concerning dence “The Syn- Holocaust fense, Minnis, see People Ill.App.3d v. 118 light drome.” In opinion, of this what will 345, 179, 74 (1983); Ill.Dec. 455 N.E.2d 209 bring? tomorrow Baker, 773, v. 120 State N.H. 424 A.2d 171 Although there are obvious differences (1980); 188, Kelly, 102 State Wash.2d syndrome between the now known as “The (1984); 685 P.2d 564 Buhrle v. 627 Battered Syndrome” Wife syn- and the P.2d 1374 (Wyo.1981); Fultz v. 439 drome now as known “The Syn- Holocaust (Ind.App.1982); N.E.2d 659 Common- drome,” principle they have much in Cusker, wealth v. Me 448 Pa. 292 A.2d Today, common. it is not unusual for our (1972), 286 while other courts hold that enlightened more trial courts to admit testi- inadmissible, such absolutely mony expert of witnesses on “The Battered Thomas, see State v. 66 Ohio 423 St.2d Syndrome,” Wife as explain relevant to (1981); White, People N.E.2d 137 90 legitimacy of a wife’s reactions to threats N.E,2d Ill.App.3d 1067, 46 Ill.Dec. 414 danger spouse, from her and to counter- (1980). 196 Also see the annotation enti- prosecutorial act claims that the wife’s con- “Admissibility Expert Opinion tled or presence tinued in the home means that the Testimony on Battered Wife or Battered homicide necessary. was not It should be A.L.R.4th, Syndrome,” Woman com- anyone obvious to almost that without such 1153; mencing page at De- Criminal Law difficult, it would be if not im- fenses, supra; Thar, “The Admissibility of possible, persons unfamiliar with how Expert Testimony Syn- on Battered Wife “The Battered Wife Syndrome” manifests An Evidentiary Analysis,” drome ... itself to understand what effect the actions (1982); Northwestern Law Review spouse of the former had on the state or Jones, Fight “When Battered Women condition the wife’s mind Back,” when she shot (Fall, 1982); 9 Barrister 12 “The and killed her spouse. any former Battered Wife’s Dilemma: To Kill or to be event, simply logically argued Killed,” cannot be Hastings Law Journal such (1981); Cross, would not be of assist- Expert “The as Educator: A determining ance to the trier of fact in Proposed Approach to the Use of Battered Syndrome Expert Testimony,” ques- Woman been 35 mind at time (1982); tion, escapes me, Vanderbilt Law Review 741 Gian- clearly majority nelli, Admissibility how, “The explain Novel Scientific truly does not under States, Frye Evidence: v. United A Half- express provisions of Section Later,” Century Law Colum. Review testimony of Dr. Roden was inadmissible to Comment, (1980); “Expert Testimony show the or condition of Upon Based Novel Scientific Technique: his mind at the time he fired the fatal shot. Under Federal Admissibility Rules Evi- reason, other, For this if no the majority dence,” 48 George Washington Law Re- opinion is simply wrong dead in holding Graham, (1980); “Lay view 774 Witness that the trial court did not err in excluding Opinion Testimony; Opinion oh Ultimate proffered testimony Dr. Roden. Witness,” Lay By Expert Issue or Crimi- reasons, foregoing For the above and I Bulletin, 1986), March-April nal Law com- respectfully dissent. mencing page at problem using with the above au- provisions thorities lies the fact that the implicated

of Section 19.06 are cited,

of the cases or of the articles

mentioned.

However, the of uniformity lack is not

surprising; attempts expand testimony in judi-

into new fields have often resulted parte Wayne Ex Derrick HAYWARD. sum, inconsistency. cial confusion and In No. 69558. precise “There has never been formula- Texas, of tion how courts should decide whether Appeals Court Criminal subject proper certain evidence is a En Banc. ‘expert testimony’.” Northwestern Law April

Review, supra. agree

I one restricts Section 19.06 self-defense, i.e., law of that before a expert testimony

defendant can introduce

going to state of mind at the time he

committed tie must this self-defense,

testimony to the defense of expert testimony probably

such But, point.

be admissible. that is the

enacting 19.06, the Legislature Section did

not restrict or intend to restrict

going to a defendant’s condition of his

mind at the time the offense was commit- self-defense; just

ted the defense of such

made admissible order place

that the trier fact could whatever

weight place that it desired to on such testi-

mony deciding what condition of

defendant’s state of mind have been

when the offense was committed. testimony going to

How the defendant’s can be inadmissible un-

state mind ever 19.06, making

der Section the determina- or

tion what condition

Case Details

Case Name: Werner v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Apr 9, 1986

Citation: 711 S.W.2d 639

Docket Number: 022-85

Court Abbreviation: Tex. Crim. App.