Satterwhite v. State

CLINTON, Judge,

dissenting.

For good and sufficient constitutional reasons Article 37.071, § (h), V.A.C.C.P., mandates this Court to review every judgment of conviction for capital murder in which punishment imposed is death. Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 ((1976); Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976). In a word the objective of our review in any given cause is to assure that a decision to inflict the penalty of death upon the person convicted is free of “arbitrariness.” Gregg v. Georgia, supra, 428 U.S. at 204-206 , S.Ct. at 2939-2940; or in two, that it “will not be 'wantonly’ or ‘freakishly’ imposed.” Jurek v. Texas, supra, 428 U.S. at 276 , S.Ct. at 2958. That is not to say those terms constitute standards or tests by which to assay particular grounds of error, just that they more or less contribute to an understanding of what to guard against in coming to an ultimate conclusion that the State has shown itself entitled to put a citizen to death.

Aside from specific grounds of errors, to me there is an aspect of this cause that is most troublesome: that at punishment testimony of an “expert” in such matters is presented to the jury in violation of appellant’s constitutional right to assistance of counsel. My concerns go the heart of the verdict of the jury, the first on guilt and then both on punishment.

The ubiquitous James P. Grigson, M.D., testified in his own inimitable fashion, now well known to every experienced practitioner in capital cases. To find that “in light of other evidence presented,” admitting his expert opinion on what is literally a matter of life or death does not amount to reversible error is startling.

Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), addressed comments on failure of an accused to testify. However, it drew the basic rule from Fahy v. Connecticut, 375 U.S. 85 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963), viz:

“There we said: ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ Id., at 86-87 , [ 84 S.Ct. at 230 ,] 11 L.Ed.2d at 173 .”

Developing that proposition, the Chapman Court squarely concluded:

“An error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless.”

*96 Id., at 23-24 , 87 S.Ct. at 828 , 17 L.Ed.2d at 710 .

When the issue is punishment, this Court has similarly followed the Fahy test confirmed by Chapman. Clemons v. State, 605 S.W.2d 567 (Tex.Cr.App.1980); also see Jordan v. State, 576 S.W.2d 825, 830 (Tex.Cr.App.1978). Finding we could not say that evidence erroneously admitted was harmless beyond a reasonable doubt “given the number of years assessed by the jury,” we buttressed that conclusion “by the prosecutor’s request to the jury to consider this inadmissible evidence in assessing punishment, .... as well as what seems to us to have been the probable impact of the erroneously admitted evidence on the minds of an average jury during the punishment phase of the trial.” Id., at 571-572.

Here too, the jury’s answer to special issue two patently is based in part at least on testimony of Dr. Grigson, bolstered by argument of the prosecutor reminding jurors that Dr. Grigson is a “Dallas psychiatrist and medical doctor [as compared to as mere psychologist employed by Bexar County],” and then recounting that “Dr. Grigson ... tells you that on a range from 1 to 10 [appellant is] a ten plus,” following that with an iteration of terms Dr. Grigson can explicate so expertly to jurors. Indeed, as in Clemons, supra, one may reasonably believe the State’s case during the punishment hearing “could have been ‘significantly less persuasive’ had the evidence been excluded.” Ibid.

Finally, a few words about voir dire of the lady who exclaimed, “You are telling me that in other words you don’t have to defend yourself. ’ 1 It is obvious that she did not ever recede from her spontaneously revealed bias (or prejudice depending on where one is coming from). When defense counsel asked her directly if she had “a bias against the law that says that the Defendant does not have to defend himself,” she confessed, “I guess maybe I do,” adding, “I haven’t thought about that.” Then came appellant’s challenge for cause.

The prosecutor took over and after he broached the specific subject of the Fifth Amendment privilege in a lengthy discourse followed by a question, Coderman answered, “Yes.” However, when the trial court asked for her answer, she responded, “Yes. I don’t quite understand what he is saying.” So the judge tried to explain burden of proof, ending with “and you must reach your verdict based on the evidence that is offered, not the evidence that is not offered.” Coderman stated, “I think I can make a decision.” Over protest of counsel for appellant, the judge overruled his challenge.

Apparently following questions more than reactions to them, the majority opines that her statement to the court that she did not quite understand what the prosecutor was talking about, and her unresponsive enigmatic thought that she could “make a decision” “indicate that the juror was capable of following an instruction that she would not consider appellant’s failure to testify or present evidence as any evidence against him.” Yet, should we do that which the majority says it must do — examine her voir dire in its entirety — we would have to find that the venireperson herself volunteered, in effect, that she believed the law personally abhorrent that an accused need not defend himself, and she failed to articulate any change in that bias by merely saying she did not understand what the prosecutor was saying and by telling the judge she thought she could “make a decision.”

I would conclude the trial court erred in overruling a challenge for “bias or prejudice exists on the basic theory of law,” which Coverman revealed, then admitted and never recanted.

For those reasons and also disagreeing with treatment of certain other grounds of error, 2 I respectfully dissent.

. All emphasis supplied.

. For one instance, while the majority may reach the correct result in approving overruling appellant’s motion to suppress, its reasoning in some particulars is faulty. It is not enough that a peace officer is "authorized” by law to arrest any person found committing traffic offenses. A search or seizure issue will turn on what he actually did in the premises. Unless he makes a lawful custodial arrest, Belton v. New York (see *97 majority opinion, at 86), is not applicable, and there can be no search or seizure incident thereto. Linnett v. State, 647 S.W.2d 672 (Tex.Cr.App.1983).