finding instruction that afforded hypnotically refreshed testimony no greater deference than ordinary testimony was improper comment on weight of evidence
How later courts described this case
- finding instruction that afforded hypnotically refreshed testimony no greater deference than ordinary testimony was improper comment on weight of evidence
- recognizing that instruction can have obvious effect of singling out testimony and inviting jurors to pay attention
- applying a totality-of-the-circumstances test: “To the extent the hypnotist lacks information, he is not in a position to bias, unduly influence, or contaminate the hypnotized person’s recollections”
- jury charge may not call attention to some of the evidence when the law does not prescribe that such evidence should receive special consideration by the jury
Written by the judges who cited it.
The opinion
ONION, Presiding Judge,
concurring in part and dissenting in part.
I concur in the result reached and agree with the test promulgated in Part V of the majority’s opinion. I dissent to the remand as a complete waste of judicial resources. The appellate record has been thoroughly examined and dissected by this Court, and we should apply the test which we have just devised. This can be easily and promptly done NOW. Instead, the majority remands the cause to the Texarkana Court of Appeals, where the voluminous record must be transferred at State’s expense. Another case will be added to the caseload of the Court of Appeals. Then that court and its judges will have to reexamine and study the record before attempting to apply the test or standard adopted today. Thereafter, regardless of the decision, the cause undoubtedly will be back before this Court on some party’s petition for discretionary review. This Court and its staff will have to expend the time and effort to determine whether the petition should be granted or refused. It will be argued that only this Court should be the court to finally decide whether the test has been properly applied so as to serve as a guide to the bench and bar of this State. Then this Court will have before it much the same question we could answer now. Who knows, by that time we may change the test and remand the cause again to the Court of Appeals for that court to review the cause again in light of the new test. Don’t laugh. See Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988) (opinions on rehearing).
The alleged offense in this cause occurred on July 23, 1967, almost 21 years ago. Appellant was hot apprehended until 1979. His trial occurred in 1980, and eight years later the case is still in the appellate orbit, and by action of the majority today it will continue in orbit for months or perhaps years to come. There is no judicial economy in the ever-expanding “remand” procedure indulged in by the majority of this Court. I vigorously dissent to the remand of this cause.