Beathard v. State

TEAGUE, Judge,

dissenting.

I respectfully file this dissenting opinion. James Lee Beathard, henceforth appellant, was convicted of capital murder. After the jury answered the special issues that were submitted to it pursuant to Art. 37.071, V.A.C.C.P., the trial judge assessed appellant’s punishment at death.

Appellant testified at the guilt stage of the trial but did not testify at the punishment stage of the trial.

During the punishment phase of appellant’s trial, appellant timely objected to the trial judge’s failure to instruct the jury on appellant’s failure to testify at that stage of the trial. Appellant complains on appeal of the trial judge’s action in his fifth point of error. The majority opinion agrees with appellant that the trial judge erred, but further holds that, because it cannot find that the error made any contribution to the jury’s answers to the submitted special issues, the error is harmless. Because I disagree with the latter holding, I respectfully dissent.

*434 In Brown v. State, 617 S.W.2d 234, at 238 (Tex.Cr.App.1981), which was a non-capital murder case, this Court unequivocally and without any reservations stated the following:

We hold that where a request is made to the trial court to add to its charge at the punishment stage of the trial an instruction on the failure of the defendant to testify, or an objection is made to the omission of such charge, it is reversible error if the trial court fails to honor that request or objection because we find that ‘members of the jury, unless instructed otherwise, may well draw adverse inferences from a defendant’s silence,’ at the punishment phase of the trial, just as they could from the defendant’s silence at the guilt-innocence stage of the trial. ‘No judge can prevent jurors from speculating about why a defendant stands mute ..., but a judge can, and must, if requested to do so, use the unique jury instruction to reduce that speculation to a minimum.’ See Carter, supra, [450] U.S. at page [288], 101 S.Ct. at 1113. (First emphasis supplied; second emphasis is in the original opinion.)

Also see Stewart v. State, 666 S.W.2d 548 (Tex.App.-5th 1984) (State’s P.D.R. refused). Thus, before today, it was axiomatic as a matter of state law that under no circumstances could the failure to give the instruction, when requested, be harmless error. Today, however, a new majority of this Court applies to appellant’s contention the harmless error test set out in Chapman v. California, 386 U.S. 18, 21 , 87 S.Ct. 824, 826-27 , 17 L.Ed.2d 705 (1967), and finds that the error was harmless beyond a reasonable doubt. Given what this Court unequivocally stated and held in Brown, supra, I totally disagree with the majority opinion’s holding that the error was harmless beyond a reasonable doubt. Furthermore, the State in this cause has not proved, beyond a reasonable doubt, that the error made no contribution to the affirmative answers that the jury returned to the special issues. See Rule 81(b)(2), Tex.R.App.Proc. Also see Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), which held that where charge error is properly preserved, the defendant must only show “some” harm. It is obvious to me that without such an instruction in this cause the jurors were given a license to speculate on why appellant failed to testify at the punishment stage of his trial, and, because the State has not shown that none of the jurors did not so speculate, I must therefore assume that some, if not all of the jurors, did speculate. Furthermore, without such instruction, the prosecuting attorneys were given license to comment on appellant’s failure to testify at the punishment stage of the trial. In this regard, because one of the prosecutors did directly comment on appellant’s failure to testify at the punishment stage of the trial, it is not necessary to speculate on whether the prosecutors did or did not directly comment on appellant’s failure to testify at the punishment stage of the trial. The record clearly reflects that one of the prosecuting attorneys in his final argument told the jury that appellant deserved a premature death because appellant had not shown the jury either remorse or any feelings of guilt.

This Court probably has more harmless error tests than any other supreme court in the nation. We have a harmless error test that was devised in Almanza, supra, for “normal” jury charge error; we have a harmless error test that is found in Rule 81(b)(2), for error committed in admitting evidence; we have a harmless error test where the jury charge was based upon an unconstitutional statute, see Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1988). Today, it creates another harmless error test. The majority opinion reasons that because Brown, supra, was based upon a decision of the United States Supreme Court, this Court is obligated to apply whatever harmless error test that the Supreme Court uses: “When an error implicates rights flowing from the United States Constitution, we must apply the harmless-error rule enunciated by the Supreme Court.” (Page 432 of opinion).

I have no problem with any of the above.

Just recently, a majority of the Supreme Court of the United States in Satterwhite v. Texas, 486 U.S. 249 , 108 S.Ct. 1792 , 100 *435 L.Ed.2d 284 (1988), held that in making the determination whether federal constitutional error in permitting a psychiatrist to testify at the punishment stage of the defendant’s trial was harmless, “The question ... is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved ‘beyond a reasonable doubt’ that the error did not contribute to the verdict obtained.” 108 S.Ct. at 1798 . Applying that holding to the charge error in this cause, it appears to me that the question here is not whether the legally admitted evidence was sufficient to support the death sentence, but rather, whether the State has proved “beyond a resonable doubt” that the error did not contribute to any of the affirmative answers that the jury returned on the submitted special issues.

In this instance, the State has clearly failed to establish beyond a reasonable doubt that the refusal of the trial judge to instruct the jury on appellant’s failure to testify did not contribute to the affirmative answers that the jury returned to the special issues that were submitted to it to answer. Especially is this true as to the affirmative answer to special issue number 2.

Many of us have heard from former and present experienced prosecutors, as well as from many trial and appellate court judges, ministers, and social workers that the first step that the defendant must take towards rehabilitating himself, which is in part what second special issue asks, is for him to come forward, bare his soul, and repent in public for all of his sins and crimes that he has committed in the past. Whether this is a valid or rational statement is not the point; the point is that most lay persons actually believe the above statement.

Our statutory law, see Art. 38.08, V.A.C. C.P., prohibits a prosecutor from alluding to or commenting on a defendant’s failure to testify at the guilt stage of the trial. It is the rare case in which a prosecutor’s comment on the defendant’s failure to testify will be deemed harmless error. Cf. Montoya v. State, 744 S.W.2d 15 (Tex.Cr.App.1987) (On appellant’s motion for rehearing).

In Brown, supra, the principle of law set out in Art. 38.08, V.A.C.C.P., was incorporated into the punishment stage of the trial. This Court held in Brown, supra, that, where requested, the trial judge should instruct the jury in a non-capital case that in deciding the punishment to be assessed the jury should not take into consideration the defendant’s failure to testify. Me Clung, in his Jury Charges For Texas Criminal Practice, 1987 revised edition, states the following: “If defendant did not testify in the penalty phase, court should instruct the jury on such failure if requested. It would be reversible error to refuse. Moss 632 S W (2) 344; Brown 617 S W (2) 234; Stewart 666 [S.W.] (2) 548.” (230). Today, the majority opinion correctly holds that the holding in Brown, supra, is applicable to a death penalty punishment hearing, but in doing so also holds that failure or refusal of the trial judge to instruct the jury on the defendant’s failure to testify can be harmless error.

Who is the person that can best tell us whether appellant will commit criminal acts of violence in the future? The answer, of course, is obvious. It is appellant himself who can best supply us with that answer. In fact, just recently in Montoya, supra, this Court so found: “The appellant was also the only one who could testify as to whether ‘I’m going to commit acts of violence in the future.’ ” ( 744 S.W.2d at 36 ). All other persons who testify on the issue of future dangerousness are either just speculating, or, in the case of the likes of Drs. Grigson, Griffith, and Schroeder, just making an educated guess the defendant will in the future commit criminal acts of violence that will constitute a continuing threat to society.

The majority opinion states in footnote 17 that “Aside from a plea for mercy, which was made by appellant’s mother, we can think of nothing else that appellant could have said during the punishment phase that he had not already said [at the guilt stage of the trial].” I thought Mon *436 toya, supra, taught us that that statement is clearly erroneous.

It is true that at the guilt stage of the trial appellant informed the jury about certain things. It is also true that there is no provision in our law for the defendant to testify over objection at the guilt stage of the trial that he wants mercy from the jury; that he will not in the future commit criminal acts of violence that would constitute a continuing threat to society; that he is remorseful; that he acknowledges all of his former transgressions; and that he has entered into a truce with sin. Nor can he perform at the guilt stage of the trial as Reverend Jimmy Swaggart did on national television. That kind of testimony can only be adduced at the punishment stage of the trial, and only the defendant himself can testify that he is now on the road that is free of sin and that he will not in the future commit criminal acts of violence that would constitute a continuing threat to society.

The majority opinion is just dead wrong when it states that appellant could not have said more during the punishment phase that might have persuaded the jury to return a negative answer to the second special issue. The majority opinion is just merely speculating from its appellate perch where it states that “Aside from a plea of mercy, which was made by appellant’s mother, we can think of nothing else that appellant could have said during the punishment phase that he had not already said.”

In holding that the error was harmless, I believe that what the author of the majority opinion, on behalf of himself and those who join his opinion, is really saying is that the error would not have affected his own decision or would not have contributed to his own verdict had he been on the jury. He cannot, however, without speculating, state why he believes it did not affect the jurors in this cause. Also see Black v. State, 723 S.W.2d 674, 682 (Tex.Cr.App.1986) (Teague, J., dissenting opinion).

Because the author of the majority opinion appears to place so much emphasis upon appellant s mother s plea for mercy, in making the determination that the error was harmless, I am compelled to ask this question: Had Reverend Swaggart sent his mother, rather than himself to testify on national television, and had she asked the audience for forgiveness for her son, how much of an impact would this have had on the audience?

In this instance, I suspect that before each and every member of this Trinity County jury decided to answer the second special issue in the affirmative, deep down in their hearts, they wanted appellant to perform much like Reverend Swaggart did on national television, and because he did not testify at the punishment stage of the trial, and also because they were not told by the trial judge that they could not draw an adverse inference from appellant’s failure to testify, it is reasonable to assume that they did draw adverse inferences on appellant’s failure to testify.

For good discussions on the role that the jury charge plays in a criminal trial in Texas, see Benson v. State, 661 S.W.2d 708 (Tex.Cr.App.1982) (Opinion on State’s Second Motion for Rehearing), and Doyle v. State, 631 S.W.2d 732 (Opinion on State’s Motion for Rehearing) (“We believe that the charge to a jury represents the distilled and abstracted wisdom of many trials, appeals, and teachings of many great legal minds, both past and present, whose attention has been riveted on the subject of instructions to the jury. The charge should resemble a gem that has been cut and polished by the hard edge of legal experience obtained from both within and without our criminal justice system.”) (738).

Therefore, I expressly dissent to the majority opinion’s overruling appellant’s fifth point of error.