Zani v. State

*249 TEAGUE, Judge,

dissenting and concurring to majority opinion.

I find that under this Court’s more recent decisions, such as Martin v. State, 630 S.W.2d 962 (Tex.Cr.App.1982), and Blankenship v. State, 673 S.W.2d 578 (Tex.Cr.App.1984), the court of appeals’ decision to reject appellant’s complaint that the trial judge erred in refusing to permit him to represent himself at his trial is clearly erroneous. Thus, the majority’s decision to dismiss appellant’s ground for review that concerns this issue, as having been improvidently granted, is also clearly erroneous. Thus, I dissent for this reason. However, neither the court of appeals’ decision nor this Court’s decision will preclude appellant from later seeking relief in federal court on this point, should he ultimately receive an unfavorable final judgment in this State.

I also dissent because the majority opinion errs in expanding the holding that the Supreme Court made in its decision of Rock v. Arkansas, 482 U.S.—, 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987), to cover the admissibility of hypnotically induced testimony of State’s witnesses. The issue in Rock , however, was clearly limited to the admissibility of hypnotically induced testimony of a defendant’s witness, and did not concern the admissibility of like testimony from a State’s witness. This Court should not permit Rock, supra, to be expanded, even under the guise of doing equity. In sum, this Court should hold that trial courts of this State may not allow juries of this State to convict accused persons on what many, including myself, consider at this time to be nothing less than irrelevant “gypsy-voodoo” evidence.

Nevertheless, given what the majority opinion of this Court holds concerning the admissibility of the State’s witness’s hypnotically induced testimony, I agree that this cause should be remanded to the court of appeals, “for its assessment of admissibility under the test we have promulgated in Part V of our opinion today.” (Pages 245-246.) Of course, the court of appeals’ decision on remand will be subject to review by this Court, should the “losing” party, be it the State or appellant, desire to file a petition for discretionary review. Therefore, I concur, but only concur to this part of the majority opinion.

The decision whether to admit hypnotically induced testimony of a State’s witness does not, of course, concern defensive testimony. See Rock v. Arkansas, supra. The issue here only concerns the admissibility of hypnotically induced testimony of a State’s witness.

The majority opinion opines that but for the United States Supreme Court decision of Rock v. Arkansas, 482 U.S. —, 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987), a majority of this court “would be Inclined to hold that it has not been shown that hypnosis is a generally accepted means of refreshing memory that is either historically accurate or comparable in accuracy to pristine recollection. Thus we would likely follow those jurisdictions which have fashioned a rule of per se exclusion of any evidence not documented or otherwise memorialized as the product of prehypnotic memory.” (Page 242.) Nevertheless, using equity and equality as its guideposts the majority holds that hypnotically induced testimony of a State’s witness may be admissible evidence against the accused.

I find that this court, over four years ago, at least implicitly, in Burnett v. State, 642 S.W.2d 765, 769 (Tex.Cr.App.1983), joined the majority of the States that held that evidence obtained as a result of hypnosis, no matter from what source, should never be admissible evidence because it is scientifically unreliable. The majority opinion actually gives excellent reasons for excluding such testimony from the fact finder. Because Rock v. Arkansas, supra, did hold that a defendant is entitled to introduce for the fact-finder’s consideration hypnotically induced testimony, for Federal constitutional law purposes, an exception to the above general rule clearly exists today. And, because of Art. VI of the Federal Constitution this Court is prohibited from applying a per se exclusionary rule to hypnotically induced testimony of the defendant or his witnesses. As recognized by the majority opinion, when it comes to a State’s witness, however, this Court is not *250 bound by what the Supreme Court held in Rock v. Arkansas, supra.

Those members who join the majority opinion, however, do not see fit to hold the line on this kind of evidence, which, as presented in the trial court, I find amounts to little more than self-taught “gypsy-voodooism”, which I find might be warranted in finding a cure for the hiccoughs but not for finding the truth of the matter asserted. 1

Although I have great confidence that, except such testimony that comes from a defendant or his witnesses, few trial judges of this State will ever admit such self-taught “gypsy-voodoo” testimony, as occurred here, and have greater confidence that most, if not all, juries will reject such testimony, I am nevertheless fearful that this Court in the future will bear witness to a battle in the trial courts of this State of self-taught “gypsy-voodoo” experts, with the result being delay, confusion of the principal issues of the trial, and unnecessary expense to the parties and the counties of this State.

When it comes to any other witness than the defendant, or the defendant’s witnesses, I would invoke and apply what this Court stated in Hopkins v. State, 480 S.W. 2d 212 (Tex.Cr.App.1972). There, this Court was confronted with whether psychiatric testimony concerning a State’s witness’s psychological condition for telling the truth was admissible evidence for purposes of impeachment of the witness. For excellent reasons given, this Court held that such evidence was not admissible evidence.

If it is the will of this Court that the determination of whether such evidence going to a State’s witness is admissible should be decided according to principles of equity, applied in the spirit of fairness and equality, and not law, so be it. However, I hope that in the future, when this Court is confronted with whether certain favorable evidence offered by an accused should be admitted into evidence, for equitable and not legal reasons, it will not forget its “equity” evidentiary rule of law that it has created today.

For the above and foregoing reasons, I concur and dissent.

. In case you are interested, it has been reported that one way to cure hiccoughs is through hypnosis. "Stand in front of the patient and look steadily between his eyes. Ask the patient to raise his right hand as high as possible until such becomes a slight strain. Make him maintain this attitude for one minute. Then ask him to close his eyes. Make three passes across the throat in a slightly downward direction. This will cure the worst case of hiccoughs.” The American Journal of Clinical Hypnosis, Vol. 23, Number 2, October 1980, under “Letters to the Editor".