# Livingston v. State > Court of Criminal Appeals of Texas · October 6, 1976 · 542 S.W.2d 655 URL: https://www.frixlaw.com/law-library/cases/9678988 ## Case - **Full name:** James LIVINGSTON, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 6, 1976 - **Citations:** 542 S.W.2d 655; 1976 Tex. Crim. App. LEXIS 1075 - **Precedential status:** Published - **Opinion:** Dissent by Roberts - **Judges:** Onion, Roberts - **Cited by:** 89 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9678988 ## How later opinions describe it (automated extraction) - explaining that “an indictment charging one offense during the commission of another crime need not allege the elements of the later offense” ## Opinion text ROBERTS, Judge (dissenting). I In his original brief filed in the trial court, appellant did not directly raise the issue of the sufficiency of the evidence to support the jury’s affirmative answer to the second special issue submitted at the punishment stage of the trial. 1 However, in a supplemental brief filed in this Court, the appellant has raised this issue through several new grounds of error which allege that because of the lack of such evidence he was denied the effective assistance of counsel. I would consider this previously-unassigned error in the interest of justice. Art. 40.09(13), Vernon’s Ann.C.C.P.; Purcell v. State, 167 Tex.Cr.R. 565, 580-584 , 322 S.W.2d 268, 276-279 (1959) (opinions of Morrison, P. J., and Davidson, J.). In doing so, I would observe that this Court has the duty in capital cases to “provid[e] prompt judicial review of the jury’s decision” in order “to promote the evenhanded, rational, and consistent imposition of death sentences under law.” Jurek v. Texas, 96 S.Ct. 2950, 2958 (1976) (opinion of Stewart, J.). See also Gregg v. Georgia, 96 S.Ct. 2909, 2939-2940 (1976) (opinion of Stewart, J.), and Proffitt v. Florida, 96 S.Ct. 2960, 2966-2967, 2969-2970 (1976) (opinion of Stewart, J.). II In the present case, the evidence supporting the appellant’s guilt was circumstantial. See Casey v. State, Tex.Cr.App., 523 S.W.2d 658 . Moreover, the evidence conclusively showed that the appellant did not participate in the actual killings. Likewise, the evidence does not reveal any predisposition on the part of appellant to kill anyone. I would hold that this evidence is insufficient, standing alone, to support an affirmative answer to the second special issue. See Swan v. State, 322 So.2d 485 (Fla.1975); Taylor v. State, 294 So.2d 648 (Fla.1974). Ill The only other evidence supporting the jury’s answer to this special issue is the psychiatric testimony presented at the punishment stage of the trial. Therefore, I turn next to an examination of the probative value of this testimony. In Hopkins v. State, 480 S.W.2d 212 (Tex. Cr.App.1972), the defendant contended that “the trial court erred in not permitting a defense witness, Dr. Yero, who is a psychiatrist, to testify as to his opinion regarding the credibility of the State’s principal witness, Marquez.” Hopkins v. State, supra, at 217. We overruled this contention and held that psychiatric testimony could not be used for impeachment since “the benefit to be gained from such testimony is not great enough to offset the disadvantages ...” Id., at 220. We then elaborated on this holding with the following language: “The state of psychiatry is such that it is more an art than a science. There exists a great deal of divergence of opinion among eminently qualified and learned men of the profession. Also, being of the nature that it is, psychiatric opinion is not only often divergent, but is often inexact. In view of this nature, the benefit to be gained by the jury would quite probably be slight. Often the jury would be subjected to conflicting witnesses and inexact opinions, the value of which would be minimal in enabling the jury to decide the issue of credibility. As is so often the case in those instances where psychiatric testimony is now permitted, the jury will quite likely be wit *664 ness to a ‘battle of experts’ who are called, in reality, not for the general knowledge which they can bestow upon the court, but for the partisan benefit which the parties who called the witness hope to receive.” (Emphasis added). Id., at 221. Pour present members of this Court joined in this language, yet now a majority of the Court is convinced that such inexact and ethereal testimony is sufficient to support a jury’s finding that the extreme penalty should be imposed. 2 I cannot agree. I would hold that this evidence is not enough — either standing alone or in conjunction with the evidence produced earlier in the trial — to support an affirmative answer to the second special issue. Swan v. State, supra; Taylor v. State, supra. This Court should fulfill its obligation to review the validity of death sentences imposed in this State. Jurek v. Texas, supra; Gregg v. Georgia, supra; Proffitt v. Florida, supra. In Ex Parte Derese, 540 S.W.2d 332 (Tex. Cr.App.1976); this Court considered the sufficiency of the evidence to support an affirmative answer to the second special issue in a case denying bail to a defendant charged with capital murder. We held that the evidence was “insufficient to support such finding.” Ex Parte Derese, supra, at 334 . We should do no less in this case, as is our duty under Jurek, Gregg, and Proffitt . The judgment should be reversed. . This special issue, framed in the language of Art. 37.071(b)(2), Vernon’s Ann.C.C.P., was as follows: “Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, James Livingston, would commit criminal acts of violence that would constitute a continuing threat to society?” . Although I agree that such evidence is clearly admissible under Art. 37.071(a), V.A.C.C.P., I cannot agree that its probative value is equally clear. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9678988. Public record. Not legal advice.