Petition — Samuel Hawkins v. Texas

Supreme Court brief1981

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2 80-6014 APR 13 1981

Ne -65 K

4 y N O. A 6 ° 8 prasicdeut cs

IN The Surreme Court OF The UNiled Slates

Oclober lerm 1980

SAimvet Christopher i AWkINs Petitioner

_.Jhe STate oF Texas ResPonclenT

—— te PPlemental Ton Petition For LUT pT ee

_CerTrorar’ TO The Texas Courr oF Criminal fiP Peats

Pr se x

SAmue) C: Hawk rng

E)nS UNIT #596

HunTsvi jie Texas

T7340

Yf- 7-3

* ~~ Question rrcamae

whether The OPinion OF The Court OF Criminat

RePeais OF Texas AFFirming _PeTitioner’s ConyicTion

And Sentence oF Death Raises Federal CoNnsiiTuTIonal

Claims when The Court Upheid deprivation OF -

Perit fowerls Right UNder The Sth; 67h STh Gnd I4Th

Amendmenrs, Not TO XNCriminate himseiF OY be-—-

Forced To Give Evidence Against himselF by AN_—

INvolunTary CoNFession 7 | rae

How The Federal Question LUAS FG ised Gnd Decided’

ON Below). sin | 5 ae

This Zssu@ Now rais@d IN This Petition For. }

Lurir OF Cérriorar! Was Presented TO The Tria

Judge ON MOTION TO Suppress The ConFession | |

because Tape Transcrtp8 GNd PeTitioner's Testimony

Shows UNdispuled Evidence Now And Then OF GN

InvoiunTary ConFessions Ae Pendisx Ce De Ee |

Dx!I SX7 Sx%« Ail G PartoF The Record oF The

Trial CourTs VOlume JE Sef» Page 254 Line I3

Through Page 258 Line 3 | eee

Volume I Page 35S SX7 Vol ZL Page 356 DX]. |

The Same UNdIs puted Evidence 4vas Presented TO

The “TeCXas Court OF Criminat Appeals Ana Rejected.

See Arena A. Page 19-22 «OPTNION OF The Court.

The Court Quoted The Promises made TO PeTTIONer |

Ond sInu Rejected Same- SeQ Vol Ym Page s¢?.

Through 1$68. Pouce Rdmits The SlalemenTs were

made :

= =,“

Reason For Granting The Ww rit

The Court Shovid Grant CerTiorar! To Consider

Whether The Texas Court Of Criminal Aereals IN

QLFFirming PeTi Tioner?’s CONVICTION Gnd Sentence cf Death

Compeitied POTiTiower TO Give Evidence Agaiwst himseiF

VIO LATING his STh ,6Th, &Ih Rnd 14th Amendments Right?

“The Texas Court OF Crimiwai RPPeaIs Erred by KejecTi'ng

Clear Gnd Admitted Evidence Thal Shouts by Te siimony

Gnd, State’s Exhibit ANd STale’s Witness Thar |

Promises Pnd zmproper ZNFluvence Was USed by Police

OFFicers. UNder Q@dth-

PeTirioner Was Grrested Gbour iz) Twelve Noon Tun®

30 th 1977 was zNTerrogateqd For Q Tota, oF( 17)

~ Sevewleen hours by Severa/ Poirce OF Ficers Wha used

Ae lay ZN Taking Petitioner be Fore a magistrate TO

Secure G Con Fession , :

See Volume I Page 254 Line 13 — P 258 Line

3. vo; VW 1587 Line “/0 Through ,1S93 Line 2

Yo) war P 1897 Line} — 1599 4irve I4-

The STaTe Placed STaTe’s EXh?biT NO. 7 INTO The

Record Aerrer The Court viewed The Same This 38

Page TranstripT ZS ONIY ON® hour OF The SevenTeen

hours INTer rogaTion OF PeTitioner SAmvue) Ce HAWKINS +

Perfrioner Placed DOerense Exhibit Noe 1 XN Evidence

Whith State's Exhibit No7 Supports Fullys

Volume I Page BSS Volume I Page 356 They

Are Tape Transcripts laxen OF ter 12 yours, OF

Z=NTerrogation OF SAmue/ Ce HAwkINS PeTYTIONer:

«Afenaix Ce DX) ODO. Sx7 €: ox “Z7 Zs

Something Thar you #-yourseiF CanT Hold vyourselF

ed ha le ei AE a ll ed ee

QT Fault For: ZTGQ-ZTS Something That lve’ CaN ©

Help you with Gnd Wwe will Try: Wwe will cle That.

MWe understand Whar your Siluation TS, LVe@ cdo- —

We are Wor” hearTo INany uay Punish you or Crimcise

you Lecause we UNderSland Whar your Sluanien ISe

State Exhibit & P3 Virtuarly The see TdenTiay—

Qvd{aTtron Appears ar SlaTes Exhibir Na-7 P3.

DeFendant Exhibit NO} CONTains The Same

G UOTATION P2 es eek

oat ol Think That They (The Courts ) hould Observe The

Facyz Thar You Need herp 6¢oe

you Rre Trying Jo SeeK

Jhat Help Already PsyCtological — Psychiatric help andQ

Think They Would reommend Q PsyChiarrist

_ STate’S Exhibs r NOY P36. 1 i.

low Qppears ar Slate's Exhibit Now 7 P36

A Similar: vOoTATION OAPppears Gr DeFeNndanr

Ex hibrr NO« eh ; 32 «

“HAWKINS & Lu! They Sentence Ne To Die Por Thar 2 |

Laravers USAM Tobe Honest uith you, Z Usould

INK That | tee

he CourTs , ZN Your Stluation Would be

Very LeEnienT , WA rea)y do DeFe ndanr Exhi ptr

Nol P32

S Tales Exhrbir No? P36 Say Wouldnt

STale’s EXhibit Noo$ P36 Say WoutdNhr —

*; : 5S

* Thrs Q vale Comes right beFore The materta, X

have QuoTed IN Para araph hove and Wovld

CONTtadKT Qil Above SF ZT Sasy SayS woeldNr.

ExXPlained xn Full Context The Correcr Word xs

AVOUId» See belowe

“Wwe are Talking Gbour a SICKNESS ; ITS NOThing |

Thar Gers see BIS lik€ +e i)

cae 20 Like G. PErSON having @] PhySical

Z/INGss you KNOW veoe ~ Dont bedeee

125 heme OF The Fact Thar This TS Nor Your Eauir

Than ZF YOu had Caught Q cord’

| STqie’s Exhibrr No-7 P36

DeFendanT Exhibiy Noel P 33

STave’s ExXhibrry ¥ P 36 Far less Comfiete

Garrervrs “YOY LWas born Lu iTh es

Cary. smi Dusr Like Sarrerr Was big » £ Was

- Born with an ugly mug’ ThaT Right.” —

_CQPT Smith “lve ost cant Hele ZT, Zzr's G.. Z

ers A Sickness we Gor?!

S ir’ ZXhibry Now7 P37

De Fen se Exhibir Noy P33

Nov? Far Less Complete?

. 6

* Th IS Court will Se@ That The OFFicers were

“Evasive Ghour The MosT Gamagi ng Q voTUTION

lohen Testipy’ng OT The Suppression hearing 7

Volume iL ar /83-84, LaFavers 187-1905milh

QT 216-/7 Garrerr

OT The Tia) Volume WD ar 1549 Through 1568

Der: LaFavers ARdamirred The_Facts When He WAS

Con FronTéd with The Tape And lranserrpT but —

Tried To ExPlain ZT Away. ——. |

§."ZT Zs Nothing Thar Canr be Helped. zrzs

SO meThing Thar we Can He7p you with + And we

Wil Try, we Will do thar” naar tein i

Fie mr Hawkins ; YES Thar STalement WQS EN

Lhe [ape / ASsSuch, aNd onThe TranStr iPr - Z.clont

Feey Thar Z had Promised you GNYThing OF

Threarened ov ZN GNy Way Or Heid Anything

back From you, That was XN The Tape | yes sit.

Q. Made by who? ie

fe myselF + /SSO Volume WH

Cc). “Wwe UNdersland Whar Your SilvaTion xs, led ire

NoT here ZN ANy,IO PUNISh you Or CriTiCiSE YOu

because Zr is understandable What your SiTvation Z> °

FP. yes Away

a 4 te 7

» SLT ZS Something Thar yoU de Need Hele With

ANd are jUsT NOW Recogni2 ING That?! Volume

Wh IS S/-s2

Pl Such were ArTem pled To be FX plained —

Away by Det La Favers- =

Whar Ever iis Explanation ). One thin +S Cerla iy

He usec! This Me Thoot To GeCT.A Con Fesstowe.

ISSE LIN es S— If

fr IM. ZNTENTION Lua S. Te Necessarlly..

Promisé you Anis Totaly 1 —Mr_ftawking « We were

_Ai’sgussin ENO ’ Passive Situation IN.

Whith aT Imes yeu Woule/ become EMOTION A

a. tones TryInq To.~Se7TLe YoU aT AIF Fer enr

Times IN Ord@r_7o CONTINUE The CONVESATION..

TRar Wwe ere. having?

UNclis puTed Evidence. _Rendeérs The CONF ession ow

ZNadmissiblie Li'senhavs CalForniq S34 Us $219

62-S:CT...620. 361 Ed_/66.

ah rere Vs nisin 293 Si Wee si U). Si CoA Ss),

} dh sodden : - —_——-—

(a CONFESSION musrbe.. _ Freel GIVEN Lu (Thoar- persuasion

Or Compulsion —HitYs _— a ses St Wr 2e nai

Ce Co ps OF TEXAS. 3H» 2l. a

Ny Sort. OF Threats. or Violence | Dir @cT Or.

zm iplied Promises however. Sifghr , Fe rTion..

OF TM proper TNFluence Wil make 4 CONFession

ZNVolunTary Hur7To VS RoSS 429 UWS 2% 26

Bram VS United states 168 UiSe S32 S¢2 SHB

hft.Se C:Ay WF 6, oy 14 ¢

: 8 Must be

70 he voluntary CoNFesstonN he Product OF

“Qn Essentially Free GNd UNCoNSTrained Chore

Surek vs EsleWe S93 F 2d 6 72

gy eres VS ConnecTricuTe WET US: SES 6 o2

S/ & CT 1/860 1379 6 4 Fa ‘2d /037 Gest)

Wt S: Ce P S/ 6, Ss) i a

The WW H/) TO CONFESS

The DE Cis1 0%, To-ConFess .musT. be Freely SCLF-

Determined ite ¥S_Richmond—36S_Ur Se

By See“ 8) S.cy 735 So. Ed ee Fem

$960) TORR Woy yt ae

__FB CONFeSSION musrbe- The. Product OF .Q- ratiova|

. enTeiecT and Free 2wit--Blatk burws VS—Alab

36 / Ur Se LY... 298-8682 CT 27Y 280 Yb. Ed

2d 242 (1960) Ut Soe S164 8) + |

Unnecessary delay IN Taking CON AaLcused before

q pag iiteate- lil” Renclera..Con Fe SSi0N-EK VOlv NIA ary

ad oes Cod@ OF C criminal. Lrocedure - O6 1S Lb

ee ee

— Clewrs V Texas AR 1h $, 70? 709 $7 Sct.

tae Ph eat 24-423 167),

Fikes VS Alabama 352 S09) 194M ar

fe Sa 2) ey sd am 1951) Ur $1.01 f7- $16,814.

Tie DeFendan7!s.Luiil_To. Resist Mvust_Nor.

he Overborne Rogers -v VS - Rich ered sinned

USCR« S76) all I iri aclicciany

ee SN EE

, 7

: IF The ©F F¥cer Warned The accused The A(cused

That The CONnFession may be used For Him,

7 xs Nor Admisioie EN Evudence and This

Teqardiess OF The Facr, TRaT, He was Ware

aise TRAT The CONFession Mi oynt be Used AgGainsy

him, White VS Ste ZEISS. Wwe 2 297

Ut St Co fi S, ey Sy Ye

LF The Evidence From The OF Ficer » QS QA. Slaye's

M1 TNess. =S TO The 67 EFFecT That He Tol

Lerendanr The Co NFESS/ON Ccovid be Used For

ted lA» TAe--COUIE Committe -E0r Or IN Qdmirt

AN me CONN 443 (2) ae McCain actin 6/2

petit, er Prays Thar.q Writ. xssue-To Revie

The Tudgemenr OF Ih€-TeXAS Courr- OF Criminal

Ppceals

ii Res, pect fiily..Submiiled

Cerri Fitale OF Service

ZL. Cerrity Thara True and @xacT Copy of This

eSupplemenTal PETITION For writ oF CerNorarh

ZS raatled Pre-Paid Postagz Kelurn Receipr

Requested To tae mal. ution

PY Orney SeCvery/ Is OFRite

_Cerrizted Supreme 'Courr buiiding a

Pb S/7 9262 ____- 1 Os 6x12 SP LEO

“3 Ww ee «| piiicaliiesdinen 78711

ee et ge ee |

ite Pa on Ce __.MAR-4.6-4981—|

ee ao ee a

RECEIVED. .,

— SUPREME. Co urT OF The UNITE

Gg OCT ober Term. 198d --—APR+3-198t-

me Gus ~——OFFICE OF THE CLERK |

s A Mu e] Cc h ry. STOR A e ys HA WwW re Oo _ SUPREME COURT,_U.S___|

SOPs TN A oR 8) OM

The stare OF Texas — — sis

= ee -

: , ae eC L TiTio LN _FO r_luryt_OF Cerriorar? __

Fo The “4 CXGS Court _OF_ saniauiaaiabl flppeais

—— Cte eS

DE ee HA wkins

ne Rea ae ae

ae oe ey iile Texas.

a. Ne oe ER ee 2 A 5. 7:

—— — --- —

ee eee ee. ss oe es

-_-—— —-——— ——

os —_ oo —— ee ee ee —

——— ee ee ne ee: _ — — —--——-- —

—_ — ee —— — ——— —

— a — ————————

ees -

eae | Questions Presented |

Whether The OP’NION oF The. Court OF Criminal

APPeals OF Texas AF Firmin Perit 1ONEr!'S ConvICTION

Raises. Federal. aalish es

als ce a “Roar. _Dnuder The. _STh, ra

Nor To TNC r (ren ase- SPs or

147 FAlmendme rs

_be Forced To Give J Evide 5-7 te a -himselF_ ae

o—--—_ ------

AN ZNVOlunTary CON Fession

AvheTher The Court OF Criminat Apreais OF Jeras

_AFFirming Petitioner's Conviction And Death —

Sentence C ONTrary 70 Texas laws -W eine

Petitioner his. Right. To A_Fair Trial on AW INSa ily

DeFense , When Court Apeointed Doctors Testimonies

_had_No ProbaTed_ value 1, CQNTradicTin Their Ke ports

_Filed with The Court. ian 1 The — er es

Amendments 2 me

Whether. The. _Texas_Courr. pf Criminal Appeals AEFirm ,

INQ Peritio wer’s Cony. iclion Awd (De aTh Sentence _

rived PeTiTioner. _Fundamentac. _FRirwess whew the

L2SON

dep

Pro secuTor Used _A_pSy. ChiaTrist__Dre 3 Tames Pe Gri

_To Mock PeTirioner’s SCIF Repres enTATION be Fore

Aga IN * eet

The_ Jury) There Fore prejudice The. Yory~

Perizionwer Violating The STh ,6Th_ 8Th And. 1+ Amend—

Ments To A Fair Teial and. Zmpart 1OL monde

a eee

ee eee -

. it

iene Cpevewis Foar

"@ vestions Presented bes ct apt mei

Cc itation_To _OPinion ——.________—_—= 2 See

Constirurionat And STal UToryProvisiows _Lnvol

_Singemewt. OF Fars 3 =.

—— — — ee

How The Federal Guestinns Were raised A nd Deciced

below Ean soe of rt 3

eee

Reason For Granting Ihe weit

B Al

— _The Court. Should_Grant Cerriorart To Consider

Whether Th e Texas C OurT OF Criminal PPPeais ZW

AFFITMING Petitioners? Conviction And Death _

Sentence ,Compened Pe 7 etioner_To Give Evidence

Against_h rmserF ViolaTing his S;6,8, Awd I¢ th

pApmendmenTs LQhTS é A oe >

The Texas-Court_OF Crimin arAereais Erreq b ReyecT-

ing Clear And Undispule q Evidence That Shows —

That Promises_Awd ZMproper rn fluence suas Used

_by The Po lice OF Ficers twho lest Fied Under Oath

ToSuch Facts »2Xh thir Adialeds—

_tThe Court Showid Grant _Cerriorarf JO Consider

“Whether Texas Court OF Criminar flpreais Aerrived —

Per friower_ OF AL mitigating CircumsTances, AN _

ZNSANITy DeFense ANd ALL _Fundamenial Fairness —

Violating The 5,6,8)ANnd 14Th Am endmenTS RighTS ¢

—*

: Lit

sie Al Ra eget Disab

“Texas Court OF Criminal Appeals erred by Denying

Per itioner Any OPPorTunily To Show ry STa Te OF

Mind AT TimeoF OF Fense ) Argument Ag ajnst The D2aTh

SEnTence Or. Miia (SIRO, 1 eC

—_—— Pewaly OR on eae en ed. eae ee eee

_The Court Should. Grant. Ce,tiorar’ To. Consider

Luh ether Texas Court OF. Crimfvat Appeals —C. lea

IN idrousry. discrimtnated Aaainst Per 1TIioNer__

Contrary yo Jexas laws Fillowsn: The ProsecuTor To

Use G_State's uiIness »Namely , De Ta mes P.G rigSon

-B_psy Chiatrist_ TO Mock Pett ITLoner!s _ Self Repres-

“enTat fon_.be Fore Th e_Sias y Violal ERT di

_14Th. Amendments Right f .. Sele

The Texa Kas Court oF Crim? 1.NQL. Peereais E cred When

ZY_UPheid Mockery OF PeriTioner’s RighT ANd _

OcTval_5 ClF- Repre SeNTATION » Th ereFore Sci as Ve ai

Fair Trial and =mpartial.. ames Ten ack ere

Bes ae ee: per i

ANd CITATIONS — paecerin

. a7

ee le re ae AS eee

Que stron Ss Presenleqd not

Table OF _ConTewnrs ORE PL: MLE

. (TAT ons. Fe Paces Ree A

Lisenba vs CAILPFor Nia. —BIY US 219 62 S. oe

620 S64 Ed 1/66 WS. CA. 5b 8 Nh. ~ page 9

NC Henry vs STaTe 293. Seus(2)_273. C1596) Pease =

LA Se i A] Sy 6,8 5..f. i) See ra

Hill vs Slate 429 Sets 2d ¥ P/ ; Page IO

exas ANwola Ted Code OF Criminal Procedure —

FSR Re 7 re ee se

-STales _ /68. US: 532 S42 543 £032 10

_Moore_vs Baltone +88 F_Suee 79811980) Pagelo

—Surek_vs &sleie 593 F.2d 672 (977) Page 1d

Culombe_Vs ConnecriCule 367 US: 568 602

Bom cr 1860 IR Gs Ed ay 1037 accrue

a ee ee

Rogers _vs Richmond365 US. 534 S4y 8)

Sucre Je 6.4 Eo oe vena. teeet\ Pag e Jo

Blackburn VS Rlabama__36/ Us S- 199 _Zo8 oS.

CT 274 280 41 Fd 2g 2¢2 (96D) page I

WhiTe VS _STaTe 299. sw (2) 279 page })

Ln ited. STales NSS Wh inpy 53) F.2¢. (6k.

1976) ott ecto A led a ——l

— ~ eee es eee ee —_—— ne

ERS i MMe, ee

ANiTed STaTes Vs Kessier S30 F 2d 1246

1257-58 reh den S35 F2d 660 (1976) Page |}

Clewig VS Texas 386 nS. 707 709 $7 Scr

homme Teh eet 2ol 423 71969) sss een 2

Pikes V3. Mabama 33-2 i519) 194 N2 77

Se CT 28) lhed 2d 246 (19s2) Rage 2

Lockett VS ohm Se S86 (1978 )pagels

1) VS Ohta 9.32 (nS: 637 I978 Page is

Chambers Vs State TX Cr APP (1978) SES Sows

a z Page IS

Farer7a ys California 422 US» $06 4SL Eq

i en a ee eee

eee ee - 2 aoe — - -

——- —_ ee oe

—— eee |

_Bruce_ys Esteve 483 F2d Jo3z (1973) Pagel

ee ee a — ——

—— ee —--—

a oe oe —

ae -— _— ~~ —

— oo —E

————— — om _ ———-

ee ee eee

_—_—— + 2 ee ee — eee ee ———

ee — a — _— --- —

ws — — = _ a ee ee ee ee ee ee

_—_——- ——

Bh ay __No. 4-658 er alee

in The he

-SuPREME Courr oF The uniled STaTes Lee

—OCTober g OOS aaa

ay — <= ~ a ee oes

_ SAmve! nee HAwK INS PeTiTioner

Se Nailed st Omi Renn ea aban? “Lana aon

The. Slate. OF yexras. ig +S Reuddestt hae

— ee a rn ee ee ee a ee we ee eee ee ee ee

ee ee oS ee ee ae ee e+ eee

cogs eee ae ee + + cee mee a ee en ee + ee +> es oo E> oe +o oe eee © A NT

ve Sie For lyrit_OF Certiocart

3 a re indict — OF. a Apreats s

—--+— a me a ee ee wee -

_ Pe: Tite. ONEr _SAmvel. Chrisfopher Hawkins _Prays That

Qwrit_OF Certiorari Issue To Review The

_Yudgement_oF The CourT oF Criminal Appeals. OF.

PO iis ENS SME OE |: SOE SE AERIS SS Ni

OP INjon_OF The Texas. Cour. 0 OF Criminal repeals

a ol. Free _ NO- A-65S8 Ts ae a Ms! CALM | Lh yea

EET F aisditee

The Yudgement_OF The Courr OF. Crimfnal_Aprecats —

OF Texas ,Yanvary /4 ,_/98/+_MoTion_For Rehear—

ing Oenied February 4Th_ 1981. A_30.da. ue

OF The_mandate_e@nTered February 4th 1981. /

Sur fselicTion OF This_Court. Zs Invoked WNder 28

bs $+Co 1257 Ca)__Per irioner- having ASSerTed

below And _Asseriin "tation deprivation OF RighTs

Secured by The ConsTrtoTton OF The UNITE ‘Star ——_

eT am

Constitattonat. And_5S laTuTory Provisions <stiagrcaed

This Case ZNvolves The SThQmendment To The,

Con stitution._OF The. wn iled States. which Provides

lil. Fane egiee FETs

OTS PE NO Person - Shari_be: Compened TD. Give

Evidence Against. cae Te SMI SS. Srocendig

—-— — -———-- ee ee oe ET —— _-——

_The 64 Am endment-To. The ConsUiTutton OF The UN led

aes Mhith. Provides ZIw_relevantT Paris?

a ooo

The Gccused Shan soy Th > Right To AN

IM Parriat. Surye sf —

10 83Th_A mendmenT-TD. The CowsriTurjon OF The —

_UM eo STaTes Which. provides IN. relevant Parts.

meee ee . ———— ene

Ss Crue? And _Umusual | PUNIShmenT

ZNFilicted:s Oe a Med a ES ee cS eT 5 NWO Maine

__Aind The /4+th Amendment, fo The Con = OF The

_ AIN. — STates_ Which Provides rN rele vant Parl: _

ee eee ee

i: No STate Shai Cleprive Any Person OF —

Like ,L Bs abd we on Praberly yw 4 Due Process

oY “a Bok |

Odie te. mee os

__ This. Also INvatves_ Ses * Texas Pena) Code |

2.01 whith Provides =n _relevanT Parts

_ All Persons. Are Presumed To. be INNOCENT _

fnd_No._Person. May be Convicled OF - /_ OF Fense

UNIESS. “para”, pan ER om pes me Fense xs Proved

beyond —/ Yi a CARS aca Ram re Coe

a ee - — ee - —

- —--= -- _ -

mee eee eee ee ee ee

— -_ RT

ee aa te ay enews — ema me oe

oweewwen «ot

; 3

“Fexas Code. OF Criminal Procedure 3207 lWhith

Provides Zw Clevant Part.

The Derendant-Or_his-Counsey. Shay be __

Permitted To ae Argument Against Gq SenTence

OF Otatia_.__ ER PRD ee

ee a ee ——— = = eee ee

ag Code OF- Criimina Procedure J382 22: Which

ounereNe ‘

ee = ee — — ee a ee -

at ee ee 5 _STaJement_mustt reel

OnNd volu wTariy Gv en Auithour. Compulsion or

SUQASION-«

Texas Penar Code 8.0) Provides:

__ ZT 5S An _AFEirmative OC Fense 72 ProsecuTion

That, AT-The Time_OF The, Conduct _Charged-+The GcTor Gs

O_resuit oF_menita, O1Seq Sane Weehons, cer =, Sea

NoT Know SE cea ht cate le rede

—ZNCG pable OF Con Forming his Conduct 0 The Feguire—

MenrT_oOF- oe w)_he- Allegedly Violated

es MM en ea

EES Per sTiomer First fippearance beFore The —

Sree a

Petitioner Was Tried_b y—Yury—In The 200Th Judiciqh

DéstricT-C ourt._ No. S6, "Fa3 sik Sraets.Covatty Te sas

ONC hange OF Venues — 2 eo Sap Murders —

=PeTiTione 1OnNer Be pre SenTeg LMSeLE »

ee eee

ee ee ee — es

ogre — - re OEE ©

—— se on ¥ - Quen

tte 4

“Petitioner SAmue, C. Hawkins LWA S Indicted by A

Grand Jury IN Porrer CounTy Texas For Capita,

Mord er And The Indictment was Filed Suly 1977

23th Day, IN The District Clerk's oF Fice OF PoTTer.

Counly Texas From The 108Th DOsstrict. Court No: 18,

OS6 Pe * I ieagile SC AEC LI ee eo SE De SERENE or ee ee eet VER ED

~The IndicTmewr_came Abour,as AResulT OF a ConEession

N-hy Three Police OF Ficers AFTer These Three

Police officers Promised Pe TiTtoner help Told Him

He was Sick, And ZT was Nor bis Faull» Promised Jo

Send Peritlioner Jo. A PsyChiaTrist_Jo Ger Help.

—FeTiTioner SAmuel Co HAwKins was ZNlerrogdled

For SevenTeen Aours ZN A Sma) Police OFFICE

Room From__l2+ Noon Sune 3d_ 977_wnTiL_Yoly 4 5_

#t_NqGistraTe_And NO Charge Filed A ga inst him:

—PeTiTioner was Arraigned August 3rd_1977 ZN A

-DisTricl_Court Eq nobles Jo$Distria- teat

Se Me Bar oe ales Fssvued A CourT Order

W_TO_have._Or. Hugh A. Penal A_PsyCharrisT To

anne PRT it romee. 2 |

—---- ——

lhe Evajvation, Lasted Four Month AT Psych iarric

Pavilion Amarillo Texas, From SepTembe ran PEN eo,

ntit December 351977» December 29, 1972 The.

Re port_was_ Filed rN The /08Th_OisTricl Court Ed-

Nobses. Dr Pennalt Find ings- C hronic PsyCh osis ‘

_Yanwvary _/OTh 11923 Through Yanyary_/6 PeTitioner

#a5 Ordered To. be Evaluated —b A_psyChologisT

Dr Richard wails Or wails Ke port was Filed

Li lth The Courr si Janruary 20 Th_1978» Finding ,

LEGARry mR Ba sa |

cman

St neal

ON. Tanvary 31,1918 Dr _Pennaliwas. ordered) To

“The. District. AT TOrwey’s OF Fice For Consid@raiion

Jo.Change his Findings OF Peritroner SAmue, C-

Hawkins ANd He Test ified IN Court TO This fac.

_ON Februa ry. Sth 1978 Court APPoiNnTed Counse)

—InTroduce Severql Documewi TO Doc for Usay

JO. Chanae his _Reporre— fat PERU IkA. ALSo. te These.

Lat S, Ge A. se es miei. eee

AU Reports. Ond TesTimony A Part EEE teed

Qnd Wl be Pointed Ty ow GuesTions Raised. —

_fu pg 7 usT_/979_ONe. year later Sudge Nobles With—

ee eee ee et ae

Reasons See T ReR-eeh ai — See

Mr ig Ss i a as a it =

Se Ptember-9h3/978- Judge Jerry ¢. SChacketFord

Pook The Case rw_his_ Court 320 District. ___

Petitioner Re eyecled Caunsel And Re presentéd_,

_himsetF ON. Change_ON. venue over his Ob SCCTION

Fy ee TS aby SS

_Ne O vember 27,1978 Sury Sel @cTion_he gin And

Pert Tioner_Asked For A. Travis County lawyer

And.2005.dented+ Vol Ill Se Fe Page =tKro _

363 41ve 1 Through 364 Line 25+ PeTiTiower

MMWAS. Zn Travis _CounT jail _30. days On Change oF

Venue And No_Lotal Counsel .Q eet :

Keeecipelpionditeaaeabil ™~.

The Triat_STarTed December 4,/918 And PeTiTion

Cr was | Found Gui. Ty And SenTe weed TO

___MorTion For. greta Tee) isa. cle wie. Tanvary 4th

wane eH EK WETICE OFA

pT The STarr_oF The Trfat The Prosecutor Read The

“tndictment And. Peritiover Plead NoT Gui LT y+

_NOT Guilty woes ae OF a Vol Yar P1438

Lines 7-14. poe tah i Bie Si a ea

_The STates._ g: IFST. Wwil-Ness WAS Timmy keys...

The deceased's Brother.

_He Te stfFjed That_He ANd Khonda The Vichm WAS

_Home Alone The NIGHT. Rhonda Let Home> The —

Mother XN The- Hos pital Gnd The Father Gone €lse-

here UNKwows He SArd She was lLasr Ssecn. ay ony mgr Paproney se, eo

_Him berore She wewr To bed ANd She was Fovi

Dead Seven days Later. ibis Mae Bake: ton

To The. Police As_ Missing. Vo)" Wor SF. Pp i446

Line _/9_ Throvgh 1453 Line Js. The Parents oF The

VicTim__ Ord Not Te sTiry J. nor ApPCar AT Court.

—— + + -

The STate’s Second. “WITNess WAS. Danloolen

mr Looren SAid He Found A Body, He never

ZdewnrrFied The. Body by Name or disCriPlions

oe — SF. Piss p a ea

‘NC 2S rd aa a ae a

The STate’S Third witness was Mr Fraxt

WiThehead ff) Deputy S heriFF- Te sT’Fied That

He Found A Body Under. a Culve rTy _He Took Pictures

OF Same, =e was Found IN Carson _CounTy wot

Porter County, Where The OF Fense 75 Auleged To have

happens Smith_Funeral Home Picked ve Tie Body Ow

The Same Oay February 9Th 1976+ Sf.

rough 14 86 ae ei re

ey re

The FacTs OF The Case FOliows:

YVol(- For volume Pave Ronee ee

Se F.-For sTaTe@ment OF Facts

P. - For Page

5 giao Cnr y ee Se eye rae FOO as Tr” F ROOM pluare? 2c _orde

fis is PorTion_OF The Facts OF The fase will

Dear daieth The. C meressio“n = .

There ZS undi ‘spuled Evidence IN Thi's

Record That. Shows Peririoner’s ConFession

_STatement wAS. Given AFfTer I2 hours oF oO __ _

Seventeen hours - INTerrogation by Police OF Ficers

whos @) Fait To Take Petitioner Ke

CAvsed PSsyCholog iCA\ Stress To ANd upon

foner

Everted Improper ZINfluence UPon PeTiT toner

CAuse him To Con Fess

ONSTrained Petitioner Jo Confess ANd

Pet. ipioner)s_ Will WAS OQuverborne And

J TIT. 10N er’s Will To~ ResiST WAS Overcome

| e.T toner WAS Told by Police OF Ficers Who

ZnTe rrogated That He would be Helped , A PSyChiaT—

gars Lv ould - ALP OINTed To help Him, £T WAS NOT

is Fault, He wAS He was born SICK Could

Help oTher. People caper gore | —

a ee ees +

AU Such Pro mises, Pers uasSion, Compulsion +ZMFroper

INFive NCC) -PSyCho logical. Pressure And A Sevenieen

Nour ZNTerragatia ice OFFicers

| Sessieratenr Per! PeTittoner SAmuvet C. HAWKINS TO

C onFess«_ ek

_See Se fu Vol oP 2 54 Throug ph P2528 Line?

Petitioner Clearty PofwTea QuT EN His Pre Trial

Testimony The INVoluntari Ness OF_ His Con FESSion:

_ The STaTe Placed STaTe!s. OXhibiT NO» "7 INTo

The Record AFTer The Cour? Viewed The SAME.

This 38 Page Transcripr. rs_ONly ON hour OF The

Seventeen hours ZNTerrogation OF PeTir ioner SAMVE|

- Li Bath oute |

_IT WAS. _NOT_UNTIL Some _ 1270/5 hours Of The 17h.

Ty allomeg tte OF PeTiTionerSAmue C. HAWKINS

_ Before His Tape WAS Recorded» aR cea

eT This Tape Transcripr_Fulry Agrees ANd Support

Péritioner’s Testimony AT Pre Tal ana Argument

Tothis Courr- Vol It SeF Pp 255. yor 7 Sef,

P2356 7s PeTiifoner’s EXHibit ANd Supports Al)

_Facts__on The INVoluwTaxriness OF The Con Fession.

ee ae ~~ — —--— — St tT

Page 2 Line 17 Through Page uy _Line 19

Page 35 Line 20 Through Page 37 Live. Pe I Saw | Ee

Both Trawscripts Shows No ConFe Ssion_UlAs_G ivew

_he Fore Promik Persuasion , du

_pSyChologica pressure And A11 else, Pl ng BER

_hours OF ZNTerrogaTion «

_AT The Triqu Petitioner. Obiected 70. Zr7-s InTroducTion

ld hen The_STate_ Gi ge 20” agama an mace

_Volt Wilt S- Fe P j496 svwes S-/2. ae

_The STatTe’s_ Wwitwes ss Det- lafavers Who WAS One oF

The. zNTerrogation OF Ficers And The One Who Actually

Ty ped The Con Fession—STaTe ment

Pro Ye

the Coyrt!s_ Reporter Played The Iape To Varity Ihe.

Transcripls Abover

Der yam es LAQFa vers Took The STangd Under O@Th

Qs A, STaTes. Witness beFore The Jury+ He Clearl 7

_Ad mitted. AL. Such _STalem Cnr EIS.

Any Confession WAS Given. He TésTiFie¢ That

The statement Were made To. Coes epee

Control PeTiTioner Gnd CAuSe Him “To CONF eSSs-

See vol Vi SeF. PISHI Line & Through

P IS58 Line 25. | é

ee AR ee ee

“Pe TiTioner TesTifieq He. was Promised Help a

“That. He Gave The Confession For Pro mises Qnd

Berieved We Would be helped by These _ Police

OFFicers Yyolt IX SF. P_J/6 gd ive 19 Theavgh —

EGO. Eie. ot

_PeTitfoner Test’ Fied That He WAS Nor sure He _

_k 1ued The victim buT He ConFesseqy because OF

The. Promises and Told Thal IT Matches H 1s _M.0+

Vol {x Sof. P1694 Lines 2 ThrovGh 25

_ Police Der. Darre LGarner Qud STaTe’s UWHTNECSS

P16 234/ve ee ee

_See proof by Tuo Police oF Ficers That PeTitioner

ANAS ZN Fact. ZN lerrogaTeq For 7 hours, and. rs kepr

— Gway From A_magisale+.—Depuly Lisiah Gerreth

Awd’ Cap, En» ras ET foes OE PW ee

“Vol Vit S-F. P1587 Linelo Through IS93

Line

__,. Vol Wi S+F. P1597 Live & ThrovghIS99

Line i a

ee 2 has_beew the Rute In This Court And TW Texas,

Courrt_OF Criminal APPRealS That »_t7T_+£s ON ly

When ZT Is. luudis-priled Eyideuce whith tuoutad

Rewder The ConFession INddmissible, The SAme Ts —

TL Nadmissi bre AS A marTér OF laujs_

kLSenha VS. CpliFornia 314 WS. 2/9 62 S.. CL

G20: “Re Ache: JEG Soe ;

antHenry vs STaTe 293 S»w.2 773.0956). -

ui Cie 5, 6) 8p ond. Hee ee

_The Confession OF 0 DeFendant May be Used _

eo TE Evidence AZainst him_ZF TT appears That lhe

Same WAS Freely Given. Wilhoul Compulsion OF

PersuASsion. Hill vs STATC 729 S.W. 2d FSI

Texas. Vernon's ANnoTaTed Code OF Criminat Pr oc dure

j.05 38.21 38-23. Umitéd STates Constitution

ey ei By ed 30 te Pema,

ee a a

_Any Sort Of Threals or Violewce » Dir€cT Or

Zmplied Promises however Slight, Exerrion OF _

Improper INéluewce wilt Make Q ConFession

—ZNyolunfry _HutTro_vs Ross 429 U.S. 2g Bram

VS UNiTed Slates /68 U.S« 532 542 543. USCA.

_5, 6, 8, ANd /4Th-

—— -——- — ~ ee ee -

| Court_must_ENsure That Prosecution Clearly Show

That INcCulpalor Statement OFFered InTo Evidence

Algainst_De Fewdast was Volunvary Made AFICF |

_EnTeutge xT Gnd Knowing waiver OF Righkr T o Remain

_Sitent Gnd Right To Counsel. Moore vs Barone

48S F_ Sure 798 C980) Ui SoC. A S, 6, SANA i4th-

—_-— — —

_TO be Voluntary Q Confession must be the PProduct

_OF AN _€ssentTially Free And UNconStrained Chaice

__Yurek vs &sreve 593 F 2g 672 (1979)

Culombe VS Connecritute 367 U.S. 568 602 —

81 Sct 1860 1979 6 4 fd 2d 1037 (96)

ln $+CoA 5, 6, 8 And 14th _

The Decisfon To Confess Must be Freely SelF

DeTermined- Rogers vs Richmond 365 —A_

“ns: S3Y S44 tS. cr. Jas. 9 1 kd. 2d 760

(1967). UrSo CoA 5, 648) 14Th-

ee ee ee ee ee - cere eeeeeer as oe eee

To be Voluntary A Confessyson must be The Product

OF OQ Yalfonal InTe@uecr And Free wilt a

—BlaockburnsS VS Alabama 36] Us Se 199 208 80 S. cT

ue nes 2 Ee ed Bee abo

ee — —

TO be volunTa ry. ConFession 4 The De FendanTs Wil)

To. .Resist must _n oT_be Overborne. Rogers ys

Richmond Supra Us Se Ce Ae S;6, 8) Anof Tylh-

e+ ee ee

see en

ZF The_OF eer Luorned The Accused That The

Confession may be Used For Him, ZT ZS NoT

Admissible IN Evideuce, And This regardless OF

Fact That_He was warned Also That The Con Fesston

Mg hT_be_used Against Him. UJhiTe vs state

289 Sew-@) 279 Us Ss Coe 5,648, And 14Th «

She Knowing Introduction OF .ZNaQdmi'sstb)

by. ProsecuTor IN A Crimtna, Case XS Trseif *

The Kind‘ ProsecuToriat overreaching” Thal

-Preysudice A Oe Fendawst’S Right To A Fair Jury —

768 (STh Cir 1976)

__UNIT@d_STa S3

I257-S8 reh den 53s F.2d G60 (976)

SIN ce Per ITio Nér LUAS ZNTerro gated For IT Haurs

before Taken. berore A magistrate 4-CONSTanTly

Questianeg by Several police oF Ficers Who

DSed €xTreme pe rsvuas fve Pressure Quad

PSy Cho Jogicae Force To Cause him TO Confess.

Ong

Texas law Re quires That OQ Person Who TS

Airresie? Sha)) tw ITh oul _UN Necessary Clélc

be brought before A_Magisirale+ Texr»as code_

OF ELTHAM oe 14 +06 1S. 16

—— ——— — SS ee

This. Coyrt_has_ § Aid That This Sort oF De

ZS Evident 1 ee

ee ee + +

Clews ys 6!

J232.18 b Ed 2d. #23. a

eo “Fie Reason £5. leax A Taagieate ply ia

Help. Break The Defendant's ZSotation and LifrT

>) a 5 OR 9 ana aie na RRR nEorcement

Authority ii | we

— How 7 The Fed erai ay mance aised And Decich

MIN i

_ Appeal was Rejected by Texas Court OF Criminal

_ApPpeais —

ee eae ee ee — ee

<The Court. Should Grant C@rriorart To

CowSider Whe Ther_OPi'nion OF The Coury OF

Cri imi NOL A ppeais OF Te xas_ AFFir ming

Pert srrioner. Conviclion And Death Senlénce

vidlates His a: t oad ) &Th Ae. 14 Th. eee:

MenTs ae sums nat Pie ood, ths

ee - ° = ~- a oe — - -_ . ee

This PorTion OF The Facts oF The Case wilt Deal with

Testimony OF CourT a Psyc hiarrist Awd

Saat scgilen rr aee Ce sehen ea

rote Pe Argued. ay PhS SweRr, ee

ee ee ~ oe ee ee ne re |

_The Triat Court Erred IN Senlencing im To. Death

CONTrary To Texas laws. cm

Pe TT 1ONEr. WAS EL Evatualion by Dr Hug US bh A- Pe NO

fl Courl fiPPoinled Psy Chologist- The @valuation Slarled

Sepfember 3, /977_And Continued Four Months

UNTit December 3,_1977+ PeTiTioner WAS Taken To

The Amarillo PsyChiatric Pavilfow For The Evaluation

December 29% 1972 Dr Pewnal’s Report WAS Filed

With The C ourl» Finding. »Chrowicty PSyChoTic._

Al Second Court Appointed Evaluation OF Petitioner

Ay Dr Richard WAU A PSyChologisT- , ON Or About _.

_Jawvary 20Th 1978 OrwAu Filed his Report? with lhe

Court. Finding 5 Legauy TSA, AT Time OF OFFense:

And PreSenllys OBS 2 he EL pO Dee eM

oe ee ee 10 er eee

No S€cond Evatuation OF PeTiTioner by — or

ZN Court. _beFore The Sury both Doctors. Fndteistuany

ConTradicled These ‘Reperts ZNn_Testimomy -

Se eee ee ee ee ee ee

Dr. Pewwat TesTiFicd That. He Was Summoned. To The —

District Atlorwey’s OF Fee And ASKked To. Consider

Changing - his Findings + He SAid He Revied Some _

Files Zw The Districl ATTorney?s, Of F ice And

Changed & HIS Re Port BAA. Find ing-

. 14

“Vol XS. F» P1840 Live 1 Through F 1245 tare 252

Or. duar.’s Reports Vol xX P 1961+ PP eT ae ae

Dr WAL TestiFied That He Changed his Findt

becaus_oF "Petitioner's. Courl APPoinTed ATTarneys-

SF. vol TX P1163 Aine 14 nai P_I716 Line

oo EE PEAR BS ETE es cl IA PP a

me we = ee ee ee ewe es

_Though bo Th. iene eee rey Ldice Against

Peiwtown: ANd Showed IT» Their Pin din ¢__ON Their

_FirsT ReporT Superceeded Their Prejudice zw Pari.

_Dr. James. Paul Grigson tho Te sTiFi¢d For The STate,

A_PSyChiatristy Never at Any Time Evatuated The

Petit Poner. by A_Courl rene Appeal CourT

. Admits IN X75 OPinion sancti. |

_Dr. Gri r19 SON. Te sTimany Violates Ie kas laws, 1exds.

Code OF Criminar. Procedure. _firTicle 46.02 PD. -

ar! WriTTen Ree TOF @ho m4. TNATION _ ba haw a

Sub mitted To The Covrl_ within 30 days of Order

OF . 2 XAMiINATioN Vs Ar CeCe Pe 46-02 Cd

— enn ee oe + eee - ee ee ee |

ZN Al) oF The Above QcTion Awd Madness by The

State oF Texas __Pe Titfowe r_ WAS clenied Funda ment

Fairness. Pelsrioner was clenied A Fajr. Yury

aps ON. EOD SHG eS P@TITPoner WAS

€n1ed The OF Porlunily. To AN Argument Against

yJhe Oeath Penalty + LUAS Pram sg s how Mitigating

oY Come STO COS oi Allowed

~ oe ee eee -

The Stale Generated , Created, developed Aud _

OFFered Severe ConTra dictions ON PeTITIONErS

State of mind AT The Time OF OF Fenses

i 15

ee ae + ee ee ee =

ae ee ee ee 2

“Thrs Court Should. Demand_Thal Texas Obey TTS

_Law And. Prove r7!s Case AgainsT peli Toner

MsGTh out cle ny ING PeTrtioner dve Processes

“The OPPorTunily To. AN. INSaNiTy _DeFewse. The

—~OPPorTuniTy To Show. Iniligating CarcumsTaxces;—

—And Any. mee ANd_fyll_2 rer ee

_Penatly: sae Ar AM I

‘The witl OF The People To LmPose The ica Deca

ZN_This Case (WAS _based ON Prejudices, ZgNorancg

Rad xrlratrowatiZation.

____ heir. Inds, Wwitis And motions LUere Wrong\y

INF luenced. by Trickery ee es Oe

_Awd Personal’ Skins OF The Prosecurar OF The Slat

WE we FAS Dw sg. + o

“Thi, Courr_has_heid IN. ieeerrr Ee NTA

__ 438 US. S86 097%) Bel) vs. Dh10 438 US°

tte SO (1972) _Held That. Placing. Restriction ON

A. Defendant's Right TO Show mit?

Cire umsTances IN A_DeatTh. Penaily Case zs

_UNCONSTITUT/ONaL |

iC heinebers:. vs STatTe g Tx Cr Ape 1978 S68 SeWe

2d 3213 The court oF Criminay APPeaIS ruled —

That OPinion TesT’mony based ON ReFerence To

DocumenTs _Or Re Ports Concerning The OF Fe

luAS_ Nor ZNadmissibie LF The ps cata back

Thorovs ghiy @Xamined The APrpeianr And cliagvosed

_him as ‘the basis OF That © Xa ens

_He Read Those eee Sl SOO sions 4:

_— =~ ~ eo

Doctors. Jestim oxy CON Tradicting Their Re ports

* had..No Probaled VAlue. -— mene eae + eet, |

__ The District ATTormey+s Fites Are heresay|

RNd Should NoT be ConSidered For Any REASON

by ‘This Court: | Sid ‘EAE alae

The Testi mony OF The DocTors ToTauy Produced by

The STate of Texas For Purpose OF. €CUrIN A Death

Senyence Violates the Above laws. Vsolates the Sthy

64h 8Th Gnd_l4Th AmendmentTs_ fig ht

ee _ — A

__ This Court Should Grant Cerriorar: to CONSider

Whether The OP? nion OF The Court oF Crim ina

Appeals OF Texas NAF Firm ing Pe@TiT1oNer 5 —__ x

Conviction And OeaTh Sentence Violates H1is-STh

_6Ih, 81h And /4Th Amendments Kig hrs 2? ———___

— oe ee a

ee - — ne eee aes a - e+e oe oe es nee reee

——~This_PorTion OF The Facts of The Case wit

Oe it patie ee er eee :

ee ee ee

__ The Yriat_Courts Error) Admitled by Texas—

Court OF Criminal Apeea $4 —Thor The Triat.Court

_did err When He Overrulled PeTitifower’s

_ObjecTion To__Prejudice Remarks and Mockery

OF His Seif Re presentation. by Dr. Grigson A —

_STates luirwess be Fore The Tury

Doctor Grigson Told The Jury Thal The Pet:Tioner

AUAS Trying To_Manifutat e Them» He Ts enjoying

This , This Feeds His ego, He rs Trying To AcT_

Like A Lawyer. He WAnTs you To Think He

He Re Sythe TS AEE aS EE a A ee

ts: oe gy Deh P 188 Liwe J Through

PORT eGo INCI _ By IEE tae 3 RS

eaten ae 1"

* -kecprw mind That The Stale OF Texas ,The trial

Jude, Nor Petitioner ReguesTed That Petitioner

De aed DY OT Griggoee

__ No _RePorr'Filed With The Court To Support

Any Jestimony From Him Throvgh the Slate

OF Texas fo RSE aR eee eee

__ Texas Court OF Crimival Apreais Admits This

oe “eal eee Se

ZT APrears That The Prosecutor Sole ENTenT Was

Te vse Doctor Grigson’s TesTimony To Prejudice

The Jory And Deny Petit tower The Rig hT To A_

REY Ti ie hoe p

—_UNder Faretra vs CAliFornia 422 UsS+ 806

45 L Ed 2d S62 9S S.CT 2525 A. Derendaut

has A Right To Represent himself AT Tha, and On

ow 214.) Fe e a i. Ce

— Under Texas laws, Texas Code oF Criminal

Procedure Article 1-05 ,Texas ConsTiTuli on _,

—Ary 4.5¢ clo Accused have a8 ight To A, Fair

Trial by On ZmParTiay Tory ANd The Rig yt

Io. Represent himselF - 7 Sin, eae

“Show Staring The ProsecuTer And

“AT Thar | PornT. PeTiTronerts. Rig LhT To DeFend_

himself. IN The Trial Was. per Theat « A Pleading

That had no Legat Leg To STand-

Bruce vs €stene 483 F 2d /03. (STh Cir 1973)

_ The Courr.sTated ‘ Mighty Presudicat Remarks”

UTTered by The Proseculor yea pordize The Jury’s

_deliberalive_ Process AN hence INFringe Ufon an

Accused Right TO A Fae hearing ON The meriTS.

I 2 ee me ee SE

a eee ee + ee a ee

Sark rdwer VS Flori: da. “Yo ins. 349, 35S. 8 Sasa

__ANy Decision TO LMfPose The D oath Pe Naty

| Thust be, And. Appear Tabe based On Reaso

'_RaTher Than Co price Or @moOTion: a: eae

=m Porlance TO The. mecca caabee atte Se eh

ne ee oe = a ne ee es a +

| Ris:._¢ Court Should Grant Cerzr ‘orart 7 yc eee

Consider Wh. het her Ihe Texas Court OF Criminal.

APPeAIS. OPINION ZN PF FILMING . _PCTitiower s. __

Oe NTence OF DCaTkh And Conv rclton. Violal 7

_His Ba SY iT ee eee ments Ay. Lg ATs 2.

| Petitioner ds: Plea

Invidious cliscriminNation Gnd Crroneous rNdividy-

ALly _Pre yudice Standard. For The. Petitfoner And —

Concealed ZN The Court's OF/Nion. Though Open ON

Coort’s Records OF Thys CaSe+ __

IT_Sh ows That PsyChiatrisT Or Penwal And

me Cholog IST_Dr Wai) both had Personal ZNTerest

@ Ovrcome OF This Case» BoTh er Fe. doce Their

Eindi Ng ZN peaune se tes cee Ve eae CCUTION >.

a ene | ee ee - e

: 9

‘ZF Goad Witt @xisted and Good Faith had_

“@xisTed The accused PeTITho ner WOUldhave been

Further Cuatuated -

“The Sole Purpose OF The STaTe was To Decive _

The wilt OF The People , TO Prejudice The wir oF

The Peaopie Ta Kill Peririoner To CreaTe Gn

CUT rage. | To. Produce A Srievous Feelings IN

Th e@ will fs: The People To Q Severity a0.) ee

Death only ZS Q Proper PuNiShmenTe

“ON The Tof of the ConFe SS10M 9 - zr Reads ; BerFore

“Quest ian OF me by Ay Police Officer. The

Record xs exTremery Clear That Seventeen hours

OF ZNierroaations the Body SAY NO Promises

Or Persuasion USed> The Record Clearly Proves

_Olher wise Testimony, E Ahibity ANA Certainly

_The Sole Pur Pose OF The re UTE

Wath. ENGIN TT +

cae ce ee ae | a = > me —— ee ee + ee

oy Sd Certiorary

‘TO CONSider 4 Whether The Texas ae

APPealsS OPINION IN AFF irm?in Petitioners $s.

GaNviction and Sentence OF Deagh ~ vlolates

41S Sy 67 5) ANd 14-Th ceasainmie Rights 2

“Cones

eee ee ae a ——— 2 ee ee + -- eee ee eee oe - noe =

vee dit Toner Pra ys _

To Review - The YvudgemenT O

CourT OF Criminat. Seeman S°

—= — ————— —-_- —_—_—

—

G writ Z5sue

F The Texas

_——- =

——ae - ee . oe ee ee a ee oe en eee + ee oe 2s eee <e eee a cnn ne ee ee ee

— << —— ee eee ne ee tee on en ne a me a a a ee ee

oe 20

eS ene Ss

ep } Samuel C- Hawkins. —

— | Li VIA FF 70

cite sha Bact i uafbu ile TEXAN Ti3e0..

Courr’s OPINION AFFI r MING PeTiTioner ’S C ONVICTION

And OveatTh Sentence Sanvary !#)I98/

Lerter. From The Court Denying. Reb Caring and

Granting A Bo clay STay. OF The frandaTe

_Fe brvuars ia _ 4, IG) RS SEO? aun

ONFite A-658 _ a

Rei eur tes Om eres ek

Zt Cerrity That_aIrve And. exact Ca hy. OF

Thrs, PeTition For writ OF CemMorar: ZS

Ma iled__pre Paid. Postage Return RecerpeT

<egesad—TD othe 3412/5

A ATTor ney’ Ge wera’ eed a

Ree ie ae Sofhreme CourT. Bvitding ein

a aS eae eae Pale tees (25 eF.

Rae is ad _AvsTin TexgS 78Z7//

fe ff PENDIXGR iad

Sid 80-6514

SAMUEL HAWKINS, Appellant

NO. 62,534 v. - - = Appeal from TRAVIS County

THE STATE OF TEXAS, Appellee

OPINION ON STATE'S

MOTION FOR REHEARING |

Our opinion on original submission is withdrawn. In it, responsive to

contentions made in an amicus curiae brief, the Court reversed the judgment of con-

viction and remanded the cause for a new trial on the twin con-

clusions that neither the standard for waiver of counsel nor the

standard for selfrepresentation were satisfied in the trial court.

This the Court was authorized to do in the interest of justice

by Article 40.09, §13, V.A.C.C.P.

The opinion and judgment of the Court have at once recéived

support and have come under heavy attack, according to the lights

of respective interested parties. But none is more vehement than

appellant, who is undertaking to represent himself on this ecpaad.?

In his "motion and answer" to the State's motion for rehearing,

appellant expressly agrees that rehearing should be granted and

insists that the Court "reverse its decision and rehear this case

in full compliance with Article 40.09 C.C.P. and rule on the pro

a se brief" on the merits of his alia Indeed, in another re-

sponse appellant asserts that by not considering the grounds of

1 ,

ve note that immediately after the verdict of the jury on

punishment was received and the trial court pronounced judgment,

the court offered to have court-appointed trial counsel handle

— appeal or assist appellant in doing so, but was told by appel-

ant:

"I would, Judge, as I have indicated earlier, I

would like to file my own appeal."

The trial court responded, “That will be fine." See, in this

regard, Webb v. State, 533 S.W.2d 780, 786 (Tex.Cr.App. 1976).

an that answer appellant informs us that he did not know the

amicus curiae intended to argue any grounds of error other than

the seventeen raised by him:in his pro se brief; in effect, appel-

lant disavows the contentions advanced by amicus curiae that were

addressed on original submission.

HAWKINS ~ Rehearing - 2

error in his pro se brief according to Article 37.071, V.A.C.C.P.,

we are denying him due process of law.

The Court is thus confronted with a demand that rehearing be

granted by an appellant whose exercise of selfrepresentation be-

ginning in September 1978 has been seriously questioned. However,

those questions and the conclusions reached on original submission

are based on a record of proceedings that were held more than two

years ago. We judicially know that on or about October 1, 1980,

after the opinion in this case on original submission, this Court

granted a motion of appellant for leave to proceed pro se in our

Cause No. 65,000 after a hearing in the trial court, orderéd by

the Court for that purpose, catébaisnes conclusively that appellant

is well advised as to his right to counsel and the dangers and

disadvantages of selfrepresentation, and knowingly and intelligently

waived the right and oa Ri on risking the potential detriment

of representing himself. So, applying the rationale of Faretta

3/.

His reference is to §(f) of Article 37.071, supra, ‘which pro-

vides for automatic review by this Court of every judgment of

conviction and sentence of death.

4/ y:

“Also a capital murder case pending on appeal, the parties

are the same - albeit a different District Attorney - and to the

extent that the matter of selfrepresentation on appeal has been

resolved we deem it a related proceeding for purposes of judicial

notice. Ex parte Paprskar, 573 S.W.2d 525, 527, n. 1 (Tex.Cr.App.

1978); Ex parte Flores, 537 S.W.2d 458, 460, n. 3 (Tex.Cr.App.

1976); Huffman v. State, 479 S.W.2d 62, 68 (Tex.Cr.App. 1972).

5/ |

In sum appellant testified that he did not want the lawyers

appointed to represent him on appeal to do so; that he did not want

any lawyer to represent him on appeal; that he did not want a law-

yer to assist him on a stand-by basis; that he wanted the briefs

filed by his appointed lawyers to be stricken; that he knew under

the Sixth Amendment he had the right to effective assistance of

counsel and that he wished to waive that right; that he is a 36

year old, high school graduate; that he has represented himself in

an aggravated rape case tried in Harris County and in the instant

capital murder case tried in Travis County; that if his time ir

Footnote 5 continued -

HAWKINS - Rehearing - 3

v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),

as was done in Webb v. State, 533 S.W.2G.780, 784 (Tex.Cr.App.

1976), we are satisfied that before this Court appellant has

effectively asserted his right to selfrepresentation on appeal

in this cause.

What is presented, then, are a State's motion for rehearing

asserting that the findings and conclusions of the Court are

erroneous and an appellant's motion and answer in propria persona

that, in effect, concedes the errors asserted by the State.

A confession of error by the State, though uncommon, is ordinarily

accepted, e.g., Miller v. State, 460 S.W.2d 427 (Tex.Cr.App. 1970);

Arsiaga v. State, 372 S.W.2d 538 (Tex.Cr.App. 1963); Crain v.

State, 253 S.W.2d 867 (Tex.Cr.App. 1953); Ramiriz v. State, 153

Tex.Cr.R. 206, 233 S.W.2d 307 (1950); Anderson v. State, 154 Tex.

Cr.R. 372, 227 S.W.2d 815 (1950), and there would appear to be no

impediment to an appellant's doing the same, if so advised.

Certainly, an appellant may deliberately waive possible grounds

of error simply by not asserting them in his appellate brief,

Footnote 5 continued -

court on all three of these cases were added up, the total would

be about ten weeks; that during these trials he filed pretrial

motions, made objections, etc., at trial, filed motions for new

trial, and filed briefs; that he knew the appellate procedure

set forth in Article 40.09 (and he recited it accurately); that

he has a Code of Criminal Procedure and a Penal Code and has

access at all times to law books at T.D.C.; that he has never

been declared insane or incompetent by any court and he makes no

claim that he is insane or incompetent now; that no one has

threatened or persuaded him to represent himself; that he is aware

of the dangers and disadvantages of representing himself, but

voluntarily chooses to represent himself even if it is to his own

detriment; that he knows how to prepare a brief (and he explained

how he would point out the errors in the record, cite his authori-

ties and make his arguments); and that he was aware that he might

make a mistake which would later harm him if he went into federal

court (such as inadvertently waiving some point). ;

HAWKINS - Rehearing - 4

cf. Article 40.09, §9, or by failing to brief one that is assigned,

e.g., Williams v. State, 504 S.W.2da 477 (Tex.Cr.App. 1974). It

occurs to us that an appellant may still agree with the State that

a. certain issue is, or is not, in the case, Downes v. State, 22

Tex.App. 393, 3 S.W. 242, Se ie ae 1886), and do so effectively

by asserting his agreement in a pro se pleading.

Accordingly, the State's motion for rehearing is granted, and

we shall now address such of appellant's seventeen grounds of error

as may be aiiaal In a cluster are grounds raising questions

about the soundness and reliability of certain psychiatric testi-

mony, but the one that concerns us most is his ground of efror num-

ber nine. It reads: “Court erred when overruling Appellant's ob-

jection to the State witness Dr. Grigson." This broad assertion

must be put in perspective. :

The offense in the case at bar is alleged to have occurred

February 3, 1976. Appellant was arrested the morning of June 30,

“fhe brief of appellant shall “set forth separately each ground

of error of which the defendant desires to complain on appeal. . ."

(All emphasis is supplied throughout by the writer of this opinion

unless otherwise indicated.)

7/ tie.

~wtThis case was submitted to us upon a single question, by an ~~

agreement in writing signed by counsel for both parties, and by ~~

said agreement all other questions that might arise in the case

were expressly waived. * * * We decline to consider and determine

this [other] question, in view of the aforesaid agreement of the

parties. . .”

While appellant has a right to have the Court consider every

ground of error properly raisec by him, he is not entitled to a

@iscussion of each question in the written opinion of the Court.

Fox v. State, 145 Tex.Cr.R. 71, 165 S.W.2d 733, 734 (1942).

Article 44.24, V.A.C.C.P., only requires that the opinion set

forth "the reason for such decision” in the case. Lindsey v. :

State, S.W.2d (Tex.Cr.App., No. 59,128, delivered October

22, 1980, Motion for Leave to File denied December 23, 1980).

HAWKINS - Rehearing - 5

1977, and held without bail. Indictment was returned July 28,

10/

1977. August 8, 1977, on o3dtion of appellant through court-

appointed attorney, the trial court ordered Dr. Hugh A. Pennal,

an Amarillo psychiatrist, “to determine the mental competency"

of appellant to stand trial. Reports from Dr. Pennal to the

1l/ 12/

trial court are — December 29, 1977, January 31, 1978 and

February 8, 1978. In June 1978 appellant filed a pro se motion

/ os

“In his ground of error sixteen appellant asserts the State

aid not prove probable cause fer his warrantless arrest but,

though appellant touched on it in questioning- Detective Bill Eaton

during a pretrial hearing on motion to suppress his confession,

our search of the record does not reveal that the matter was ever

made an issue in the case. Indeed, the witness we understand was

the senior arresting officer, Lt. Darrell Garner, was not asked

a single question about the arrest. Nothing is presented for re-

view. .

10/

“Appellant complains in his second ground of error that the

State did not serve notice that it would seek the death penalty,

but he relies on the former provisions of Article 1.14, V.A.C.C.P.

that have been legislatively removed. See Batten v. State, 533

S.W.2d 788, 793 (Tex.Cr.App. 1976).

1l/

“Dr. Pennal recounts the “rather extensive work-up" and states

that his conclusion is that appellant "represents, as a diagnostic

entity, a classic case of true paranoia."

12/ : ;

“After completing additional study, Dr. Pennal reports that

appellant is competent to stand trial, was not psychotic at the

time of the offense and was then sane. Fé

13/ ;

This last report explains the use of the term “paranoia.” His

first report was meant to connote “extreme suspiciousness," and goes

on to note that his additional study reveals that "

traits are present.” J many sociopathic

HAWKINS - Rehearing - 6

for hearing on his competency to stand trial, and on October 3

gave written notice that the issue of insanity at the time of the

offense may be raised in the case. At a pretrial hearing October

— ere errr se -

12, 1978 appellant announced his waiver of proceeding on the com-

petency motion but the cautious trial court permitted the prosecutor

to develop testimony from Dr. Pennal that in his opinion appellant

was completely competent to stand trial. At the conclusion of the

hearing the trial court ruled that "there is no evidence to sup~-

port a finding of incompetency,” and followed that oral pronounce-

ment with a written order dated October 17, 1978, denying a jury

determination of the matter. Thus, more than a month before the

trial began that present parerees was not an issue in the case

was clearly ruled and understood.

14/

Later that understanding was underscored when in presenting

his insanity defense appellant posed a question to a psychologist

who had examined him and the following occurred:

"Q: Okay, in your opinion, Dr. Wall, aml

suffering from a mental disease now?

(District Attorney) It's not a matter at

issue, Your Honor. That matter at issue is

whether he was suffering from a mental disease

er the appropriate issue is whether or not

he was legally insane back on February the

3rd, 1976.

THE COURT: I sustain the objection.”

HAWKINS - Rehearing - 7

As made clear in the opinion on original submission, the

matter of appellant representing himself came up several times

before a patient trial judge, and finally that right was accorded

to him, to be exercised with or without assistance of a court-

appointed “standby” attorney as appellant desired. November 27,

1978 the case was called for dint, hte etter it had been assembled

the trial court propounded to the panel of prospective jurors

what was characterized as “certain principles of law applicable

to this case." Inter alia, the trial court alluded to the fact

that appeliant was representing himself, outlined the law in that

respect, mentioned admonishments given appellant and concluded by

instructing the panel:

“you will not consider the Defendant's having elected

to act as his own trial Counsel as any evidence for or

against the Defendant or the State in this trial." 16/

15 ‘

+ onue for triai of the case had been transferred from Potter

County to Travis County. Before announcing ready for trial appel-

lant made an oral motion for appointment of a Travis County practi-

tioner to assist in jury selection. Ascertaining that appellant

was still insisting on representing himself and with appointed

"standby" counsel present, the trial court denied the motion. By

ground of error five appellant asserts error in this, citing cases

that hold appointment of counsel is required at every stage of a

criminal proceeding where substantial rights might be affected.

However, appellant had waived his right to counsel, and the refusal

of the trial court to grant a form of hybrid representation was /

not error. See Landers v. State, 550 S.W.2d 272, 278 (Tex.Cr.App./

1977); DeRusse v. State, 579 S.W.2d 224, 237 (Tex.Cr.App. 1979). /

TT preceding the quoted instruction the jury ae A

been told:

“Defendant representing self. You should know

that the Defendant in this case has chosen voluntarily

to act as his own Defense Attorney and Mr. Seldon Hale,

a practicing attorney in Amarillo, Texas, has been

appointed by me to remain standing by during the trial

in the event that the Defcndant at some point decides

to change his election to act as his own Counsel and to

ee his right to be represented by Counsel appointed

or him.

It is the law that a person on trial has the right

to an appointed lawyer if he is indigent, but it is

also the right of the person on trial to act as his

own Counsel if he insists on doing so, as the Defendant,

Samuel Hawkins, has insisted in this case. His election

to do so was voluntarily made after I had admonished

him that he would have to observe the same rules of evi-

dence, procedure and law that a licensed attorney acting

as a trial counsel would have to observe. And I may

necessarily in the course of the trial make legal rulings

holding him to these legal standards despite his lack

of formal legal training.”

. HAWKINS - Rehearing - 8 °

Each juror who was ultimately selected was thoroughly

qualified by the prosecuting atsorney on the matter of appellant

representing himself. Appellant often followed up with one or

17/

“Examination of the juror first accepted, Susan Cavazos,

is typical:

"Q: Now, as the Judge told you when you were

here as a group earlier this morning, the Defendant

in this case is named Sam Hawkins, he is seated to my

left. And he has insisted on his right, and hc hac

an absolute Constitutional right, to represent himself

as his own Counsel in this trial. And as the Judge

told you this morning, he has a right to do that.

A Lawyer has been appointed, that is seated there

by him, to standby andgive any advice that is asked

for.

Do you have any disagreement with the law that -

permits a Defendant to represent himself if he insists

on it?

A: No, sir.

Q: You think that law is a good law and all

right --

A: If he wants to, that's his business.

Q: Okay. Now, during the course of the trial I

may make an objection from time to time or I may re-

spond to some objection that the Defendant might make

on his own behalf. And you heard the Judge, this

morning, tell you that he was going to hold the Defendant

to the rules of evidence and courtroom procedure just

as though he were a licensed lawyer, and he would have

to follow those rules.

Do you have any disagreement with that, do you

think that's a fair enough thing if he is going to re-

present himself? :

A: That's fair.

Q: It really, Miss Cavazos, it kind of worries

me, because being a licensed myself [sic], I'm afraid

that you or anybody else on the jury might think I'm

bullying him because -- I mean, I guess he can't help

not having a law license, but I- can't help having one

as we sit here today. Would you hold that against me

or against the State that I represent --

A: No, sir, he had an opportunity to get a lawyer

and he still can.

Q: And you wouldn't 10ld it against me, the fact

that I do have some legal training, while he does not

have any formal legal training?

A: No, sir."

“HAWKINS - Rehearing - 9

18/

two questions on the point.

Before the State commenced to present its case, then, two

ground rules for conduct of the trial were explicit: one, present

{ competency of appellant was not at issue and, two, the fact that

appellant was representing himself was not a matter for jury con-

| sideration.

\ The State called its first witness December 4, 1978. -He and

the others presented by the State during its case in chief testi-

fied to certain facts surrounding the offense as well as the sub-

sequent arrest of and statement by appellant concerning it, the

final witness being a pathologist who gave his opinion as to the

cause of death of the victim.

19/ =~ 20/

In presenting his defense, appellant testified and then

called Richard Lee Wall, PhD, a Clinical Psychologist, who had inter-

viewed and tested-him January 16 and 17, 1978. His initial diagno-

sis was paranoia, but about three weeks later, after assaying other

information, Dr. Wall changed it from paranoia to the less severe

2y/

“paranoid condition." At the end of Dr. Wall's testimony appellant

18/

“fhus he asked Cavazos whether the fact that he was repre-

senting himself affected her in any way; when she asked for amplica-

tion, the question and her answer were:

"Q: Would it make you think I'm committing a

stupid act, and agree with the District Attorney that

I should be found guilty because of that?

A: No, sir."

19/

Recounting a long history of the consequences of what he

termed “an uncontrollable sex drive,” appellant recalled earlier

efforts at “therapy” in another state. On cross examination at

first he made no answer to a question as to whether he had a mental

disease but, upon being prodded, he gave a rambling reply that ended

with his characterizing that “drive” as a mental defect.

20/

“Appellant put an Amarillo television newsman on the stand to

have him testify to a series oi) interviews he had with appellant

that were later broadcast, but on objection by the State the trial

court ruled out the proposed testimony; we find no error in that ruling.

Dr. Wall told the jury, on cross examination, that he did not know whether

appellant was psychotic on February 3, 1976, and that he had “no way of knowing”

whether the condition he diagnosed “could reasonably be expected to have changed”

between the time of his examination and “the present time."

HAWKINS - Reheariny - 10

rested his case.

Dr. Grigson was called by the State as its first rebuttal

vienese:* Geoud of error number nine, though inartfully drawn,

is clarified by a paraphrase of portions of the record that are

specifically cited, viz:

"Q: Would you tell the Jury your impression

of that document which was delivered to a clinical

psychologist named Dr. Wall in connection with his

examination of the Defendant?

A: Yes. This is -- if you read it, you find

that this is an absolute manipulation on Mr. Hawkins’

part, to say, ‘See, I must be sick, something is

wrong with me.'

Now, what he is doing, as most sociopaths will

do, they will make minor concessions such as he

doesn't mind telling you about his horrible sexual

drive and all of the terrible things which he has

done, but what he hopes to gain from this is a major

concession.

The con job is, ‘You have got to see how crazy’

I am and how sick I am. You can't consider finding

me guilty because of what I am.'

But this is simply manipulation on his part.

MR. HAWKINS: Judge, I object to

Dr. Grigson's opinion because he only

saw that for a few minutes ago (sic).

And as I shared with the Court earlier,

I had a subpoena form to back up everything

that is in there, and the State and the Court

were the ones that refused the subpoena form

which I have here to prove these situations.

So Dr. Grigson doesn't have the authority

to say this isn't true.

THE COURT: I will overrule your objection.

You can proceed.

Q: (By Mr. Curtis) Doctor, as you observed

the Defendant just at that time, was he displaying

some evidence of anxiety as he stood up and made

that objection?

A: Well, he, one, is trying to get attention

and play like an attorney. This feeds his ego.

22/

“In view of appellant's equivocation, note 16, ante, since

Dr. Wall disclaimed any opinion avout appellant's mental condition

at the time of the instant offense, see note 18, ante, there really

was not much to rebut.

HAWKINS - Rehearing - 1l

MR. HAWKINS: Judge, [ still object to Dr.

Grigson's opinion as to what feeds my ego. He

should deal with the examination on this case,

Judge, with reference to th2 evaluation which he

took of me, and that's the context of his testimony

(sic).

THE COURT: I will overrule your objection.”

Dr. Grigson had examined appellant only one time - January 13,

1978, in the Potter County Jail. Our search of the record for his

authority to make the examination has produced none, but apparently

it was in connection with yet another case pending against appellant

in Hutchinson County. We have already observed that. during this con-

temporaneous period appellant was being tested, examined and eval-

uated by Dr. Pennal through appointment by the trial court.

Dr. Grigson testified that he conducted a mental status

examination of appellant, describing to the jury its five parts,

and that he came to his now familiar diagnosis of sociopathic

personality diaecnee: =” we expressed the opinion that appellant

was not suffering from a mental illness or disease either at the

time of the examination or anytime prior to it. After elaborating

on characteristics he finds in the sociopathic personality, he

described appellant as manipulative, then was presented Defendant's

Exhibit 1 and gave testimony over objections that appellant cites

in support of his ground of error and we have set out ante.

As Dr. Grigson was presenting his views end opinions on

direct examination appellant made no objection until Dr. Grigson

stated his “impression” of the Defendant's Exhibit 1. When that

objection was overruled the District Attorney then pointed out to

Dr. Grigson to what appellant, acting as his own attorney, had

just done: “Doctor, as you observed the Defendant just at that

time. . . as he stood up and made that objection. . .” Thus

prompted, Dr. Grigson undertook to inform the jury that appellant

“is trying to get attention and play like an attorney” for it "feeds his ego."

2Y e.g., Smith v. State, 540 S.W.2d 693, 696 (Tex.Cr.

App. 1976), certiorari denied 340 U.S. 922 (1977); habeas corpus

relief grantee in Smith v. Estelle, 445 F.Supp. 647 (ND Tex. 1977)

affirmed 602 F.2d 699 (1979) certiorari granted, cause argued,

decision pending; Livingston v. State, 542 S.W.2d 655, 661 (Tex.

Cr.App. 1976); Moore v. State, 542 S.W.2d 664, 676 (Tex.Cr.App. .

1976); Gholson v. State, 542 S.W.2d 395, 399-401 (Tex.Cr.App.

1976); Chambers v. State, 568 S.W.2d 313, 325-326 (Tex.Cr.App.

1978); see generally, “Witness for the Prosecution,” DMagazine,

June 1980, 131 f€.

HAWKINS - Rehearing - 12

Appellant now asserts, "Yet the court allowed the State's

witness to do the very thing he told the jury not to do,” and

contends admitting the testimony violated his rights under the

24/

Sixth Amendment to the Constitution of the United States, Article .

25/ ; 26/

I, §10 of the Constitution of the State of Texas and Article 1.05,

V.A.C.C.P.

“. . » The right to defend is personal. The de-

fendant, and not his lawyer or the State, will

bear the personal consequences of a conviction.

It is the defendant, therefore, who must be free

personally to decide whether in his particular

case counsel is to his advantage. And although

he may conduct his own defense ultimately to his

own detriment, his choice must be honored out of

‘that respect for the individual which is the

lifeblood of the law.’ Illinois v. Allen, 397

U.S. 337, 350-351 (Brennan, J., concurring).”

Thus wrote the Supreme Court in Faretta v. California, 422 U.S.

806, 834, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). We believe

neither the State nor Dr. Grigson honored appellant's personal

choice to represent himself. Rather, they denigrated his decision

and mocked him for making and carrying it out, and in the doing ;

weakened the carefully structured protection that until that

moment had been accorded the constitutional right of appellant /

to conduct his own defense.

24/ .

“The Sixth Amendment provides the right of an accused to be

informed of the accusation against him, to be confronted with

witnesses, to have compulsory process to obtain witnesses and to

have assistance ofcounsel “for his defense." From this is derived

the correlative independent constitutional right to defend himself.

Paretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975); Brignon v. State, 399 S.W.2d 810, 812 (Tex.Cr.App. 1966).

25 .

234 pertinent part §10 of our Bill of Rights provides that

an accused “shall have the right of being heard by himself or by

counsel, or both.” However, the language is not to be taken

literally, as Landers v. State, 550 S.W.2d 272, 275 ff. (Tex.Cr.

App. 1977), teaches; see also rhillips v. State, 604 S.W.2d 904,

907 (Tex.Cr.App. 1979).

ath ke §10 of the Bill of Rights, Article 1.05 also speaks

of “the right of being heard by himself, or counsel, or both,”

but see note 25, ante.

. HAWKINS - Rehearing - 13 .

It is plain that the preliminary instructions given

by the trial court in this respect to the panel of prospective

jurors, pursuant to Article 35.17, V.A.C.C.P., were intended and

designed to present appellant in that capacity and protect both

the accused and the State from any adverse inferences being drawn

from the fact that appellant was representing himself. Just as

the panel was told they were not to consider his failure to testi-

fy should that be his aisetion; "es also they were not to consider

his having elected to act as his own trial counsel for or against

appellant or the State “in this trial." The questions by the

State and the answers by Dr. Grigson thus put before the jury

the very matter they had been instructed by the trial court they

were not to consider, and had been excluded on objection by the

State when appellant broached the subject with Dr. Wall, see note

14 ante.

Years ago in Waters v. State, 91 Tex.Cr.R. 592, 241 S.W. 496,

499 (1922) it was written:

". + « The trial of causes involving life and liberty

to the citizen, whatever may be his standing or estate,

whether he be of hich or low degree, the procedure and

result involve the most serious matters. Such trials

are not to be made mere opportunities for verbal sword-

play between competing counsel, nor should the fair

judgment of the jury be affected or influenced by aught

save the consideration of the testimony and its effect,

under the law as presented."

Certainly in this State selfrepresentation is not new,

Webb v. State, 533 S.W.2d 780, 783 (Tex.Cr.App. 1976), and from

considerations that have caused the Court to deny a right to

“hybrid representation,” Landers v. State, supra, at 278, Phillips

v. State, 604 S.W.2d 904, 907 (Tex.Cr.App. 1979), Webb v. State,

supra, at 784, and to require the trial judge to make an accused

fully aware that “he will be on his own in a complex area where

27/

“And, of course, it is a well settled constitutional principle

by judicial decision and implemented by statutory law that the

failure of an accused to testify in his own behalf shall not be

taken as a circumstance against him, “nor shall the same be alluded

to or commented on by counsel in the cause,” Article 38.08, V.A.C.C.P.

See Stafford v. Stare, 67 S.W.2d 287 {(Tex.Cr.App. 1934).

;

HAWKINS - Rehearing - 14

experience and professional training are greatly desired,"

Trevino v. State, 555 S.W.2d 750, 751 (Tex.Cr.App. 1977), and

that “he will not be granted any special consideration because

of his lack of formal training in law," Geeslin v. State, 600

S.W.2d 309, 314 (Tex.Cr.App. 1980), it follows that though not

an attorney an accused is expected to conduct himself like one

to the extent of his ability to do so. |

In Williams v. State, 549 S.W.2d 183, 189 oo 1977),

, following Faretta v. California, supra, at n. 46, the Court

jf stated, "When an accused elects to represent himself he cannot

complain that the quality of his own defense amounted to a denial

of effective assistance of counsel.“ Also, the Court has observed

—

that a selfdefending accused “has no right to ask for a reversal

because he alienated the jury while doing so,” Rasberry v. State,

535 S.W.2d 871, 873 (Tex.Cr.App. 1976). However, neither the

Supreme Court nor this Court has ever indicated that an accused

who is exercising his independent constitutional right to repre-

sent himself is fair game for the State and its witnesses. Indeed,

if the right is to have any practical meaning, its actual exercise

must be hohored “out of ‘that respect for the individual which

is the lifeblood of the law'" as much as the initial decision.

| Making sport of appellant for voicing the very first objection

d termination by an accused to represent himself demanded by the

Supreme Court of the United States in Faretta. Such an accused

is entitled to give his best effort to be effective counsel for

himself without demeaning characterizations or innuendos that would

or should not be permitted against a licensed trial counsel. Cook

Vv. State, 537 S.W.2d 258, 261 (Tex.Cr.App. 1976) and cases cited

28/

_“the right of self-representation is not a license to abuse

the dignity of the courtroom. Neither is it a license not to

comply with relevant rules or procedural and substantive law.

Thus, whatever else may Or may not be open to him on appeal, a

defendant who elects to represent himself cannot thereafter com-

Plain that the quality of his own defense amounted to a denial

Of ‘effective assistance of counsel'.”

HAWKINS - Rehearing - 15

therein; see Ford v. State, 314 S.W.2d 101, 102 (Tex.Cr.App.

1958): “Lawsuits should be tried upon the issues raised and

submitted to the jury and not upon collateral issues such as

. 29,

personal conflicts between counsel." As the Court remarked in

Franklin v. State, 41 Tex.Cr.R. 21, 51 S.W. 951 (1899):

",. . « We would observe here that counsel has a

right at all times during the progress of the

case, in proper manner, to reserve a bill of ex-

ceptions to any action of the court or counsel

deemed improper, and he has a right at all times »

in taking his bill’ of exceptions to be treated

in a respectful manner. No doubt the purpose of

the district attorney was to belittle his exception.

This course of practice should not be allowed." 30/

Accordingly, we hold that where competency to stand trial is

not an issue and the accused is exercising his independent consti-

tutional right to conduct his own defense it is error of constitu-

tional dimension for the prosecutor or a witness to comment adversely

concerning the mental attitude of the accused as he is exercising

that right.

Nevertheless, though the exchange between the prosecutor and

Dr. Grigson and the adverse ruling by the trial court were erroneous ©

and occurred in a capital case, the question remains whether the ,

errors are harmless beyond a reasonable doubt. Schneble v. Florida,

2Pfis observation came in the context of finding reversible

error in overruling objections to improper questions propounded

by the prosecutor to defense counsel, whom he had called as a

witness, “which were calculated to leave the impression with the

jury that appellant's counsel hid been guilty of some trick or

device in the selection of the jury."

30/

“In Waters v. State, 91 Tex.Cr.R. 592, 241 S.W. 496, 499

(1922) the Court similarly urgei that “there is no need for the

attorneys for the people to resort to such methods" as the making

of sidebar remarks and “to belittle the objections and complaints

made on behalf of appellant.”

HAWKINS - Rehearing - 16

405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington

v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 340 (1969)

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705

(1967).— That determination is for this Court in the first in-

stance, Foster v. California, 394 U.S. 440, 444, 89 S.Ct. 1127,

22 L.Ed.2d 402 (1969), and we now turn to make it. “

The bare bones of the case presented by the State are de- ,

scribed in the opinion on original submission. Appellant "in \

essence admitted the commission of the offense" of killing a \

twelve year old girl during the course of kidnapping her from her \

home and thereafter attempting to, if not actually accomplishing,

rape. As well as a confession produced by the State there was an

abundance of circumstantial evidence that appellant did just what

poy

= violation of Bruton v. United States, 391 U.S. 123, 88

S.Ct. 1620, 20 L.Ed.2d (1968), was found harmless by the Supreme

Court.

verwhelming evidence of guilt may relegate constitutional

error to condition of harmlessness. The error we now treat occurred,

it is to of rte on rebuttal during the guilt-innocence phase

of the trial.

sh a “reesonably strong ‘circumstantial web of evidence’

against petitioners” in which "honest, fair-minded jurors might

well have brought in not-guilty verdicts," a "machine-gun repetition

of a denial of constitutional rights (prosecutorial comments on

failure to testify), designed and calculated to make petitioner's

an of ton agers worthless" cannot be considered harmless,

U.S. at e' 6.

HAWKINS - Rehearing - 17

34/

he said in his confession he did.

Also before Dr. Grigson gave his testimony, appellant, thor-

oughly cautioned and warned by the trial court that on material

matters he was waiving his constitutional right against self-

incrimination by taking the stand, did so and testified in nar-

rative form at some length - spurning the option of having his

“standby attorney" pose pertinent questions to him. Beginning

with his early childhood, appellant related that his “sex drive"

was strony, such that he masterbated so regularly that there were

times when his penis became “raw or swollen twice its size." We

allude to this earthy testimony of appellant since he regards

such manifestation of his early “sex drive" as indicating the

“mental defect" that continued to preclude selfcontrol of his

sexual behavior toward others generally and certain victims parti-

cularly. The details of that continuing course of misbehavior we

will pretermit; suffice to say that he narrated a history of

juvenile indecency with his minor sisters and attempted buggery,

followed by incidents as an adult of public lewdness, a rape in

34/

“¥, . . %I just wanted to get her away from the house so

she would'nt [sic] scream. She couldn't have seen the truck that

I was in because I put a stocking over her eyes that I had taken

out of the front room of the house. * * * I took her to my truck,

and she got in. We then drove off. I got about three miles or so

down the road and the girl started.screaming and kicking. I tried

to calm her down and when I couldn't I got excited. I noticed a

piece of steel in the floor boird of the truck. This piece-of

metal was about a 12 inch square. I picked the piece of steel

up and hit the girl in the left side of the face. The girl fell

over. When the girl fell over, I hit her again. I don't remember

how many times I hit her but I kept hitting her with the piece of

steel. The girls [sic] head was bleeding very much,so I got the pillow

case off of a pillow that I ha’ in the truck, and I wrapped it

over the girls [sic] head to keep the blood from getting on the

seat. * * * I came to a little gutter bridge in the road. I

stopped the truck, and drug her out, and put her under the bridge.

I then left her under the bridwe and went back to my job. I knew

that the girl was dead when I hit her the first time because she

fell over and didn't move. .. ."

HAWKINS - Rehearing - 18

Denver, Colorado, an entry with intent to rape in Oklahoma City,

Oklahoma, and “the same problems" for a year in Jacksonville,

Florida - all prior to moving to the Amarillo area. There,

appellant was, as he summed it up, “arrested on some 13 rapes. . .

and two murders as a result of this sex drive which didn't ever

change." Appellant concluded his personal presentation by sum-

marizing his conversations with several Amarillo police officers

and detectives, in which he “shared with them my problem,” sub-

sequently confessed to committing the instant offense and others,

and bringing himself “to the point pretty much where I am now with

this problem." On cross-examination appellant acknowledged that

he had been convicted of the more particularized offenses he had

recounted, and evasively conceded to killing the victim in the

case at bar.

Appellant then called Dr. Wall and through him developed much

of the same history, winding up the examination with introduction

of a seven page handwritten account of the same history signed by

appellant. It is Defendant's Exhibit 1, which when shown to Dr.

Grigson for his “impression” gave rise to the disputed exchange.

Thus, the jury had before it appellant's own live testimony

of his “problems,” the history given Dr. Wall and a personally

written report that appellant himself had prepared (for consideration

by Dr. Wall in his examination) and on his own initiative introduced

as an exhibit in présenting his defense. Not only is evidence of

his guilt of the offense charged overwhelming, but also we must

conclude “that the 'minds of an average jury’ would not have found

the State's case significantly less persuasive" had the testimony

of Dr. Grigson as to appellant's “ego trip” in representing him-

self been excluded, Schneble v. Plorida, supra, 405 U.S. at 432.°

HAWKINS = Rehearing - 19

Therefore, the ninth ground of error presents error that is

harmless. ;

Ground of error one contends that his written confession was

not voluntarily made by appellant, in that it is the product of un-

kept promises by his interrogators. The court conducted a far-

ranging hearing on a pro se motion to suppress the confession,

alleging inter alia that promises to obtain “mental help" for

him caused appellant to begin to discuss his “problems” and several

offenses he had committed and persuaded him to sign the written

confession.

We note at the outset that the statement recounting the in-

stant offense was but one of i esi of confessions to separate

crimes purportedly made by appellant during the morning of July

1, 1977, the day following his arrest. This statement, as well as

the other two, reads just above his signature, "I am giving this

statemen= to Det. LaFavers of the Amarillo Police Dept. without

any threats or promises given to me by himor anyone else of that Dept.

I have read the above statement and it is true and correct to the

best of my knowledge." Detective LaFavers testified that, in the

presence of and with the assistance of two other officers, he in-

terviewed appellant for some three hours before the first state-

ment, the one in this case, was typed by him and read and signed

by appellant; during that period of time, according to LaFavers,

appellant appeared to be acting voluntarily, no threats or pro-

mises were made and there was no force of any sort used against

him during the interview. The interview, or at least portions

of it, were recorded and in our record are three substantially

similar but still strikingly different transcriptions of the

HAWKINS - Rehearing - 20

35/

recording. Before being confronted with any of them, LaFavers

dissembled with respect to whether he had — certain statements

36/

that appellant translated into "promises," but he did generalize

his own thoughts concerning them, viz:

"My intention wad not to promise you anything at

that time, I don't feal. as if it: came across that

way, . . . I didn't at ‘the time feel and I don't

now feel that you interpreted it that way."

The trial court heard the testimony, indicated that the tran-

scriptions had been read, reviewed and compared and apparently

agreed with IaFavers, for it pronounced the finding that “beyond

a reasonable doubt the confessions which were introduced were vol-

untarily made." Subsequently, the oral ruling was reduced to

written particularized findings and conclusions, two of which are:

“The defendant. . . was not coerced into making ~

any of the said statements by any force, threats,

persuasion, or promises or any other improper influence.

The statements given were reduced to writing; the

defendant read them completely and signed them of his

free will."

35/ :

“Two begin identically with appellant saying, "I was pro-

bably about 9 or 10 years old," whereas the one proffered by

appellant has him adverting to earlier remarks: "I was talking

about,-a minute or two minutes ago, my daddy. . . The recording

machine was being operated by Captain of Detectives E. N. Smith

who, though testifying to related matters, recounted little of

what preceded the opening remarks of appellant. Elsewhere it

appears that appellant had been questioned unsuccessfully by other

officers throughout the afternoon and evening of the day of his

arrest. At about 11:00 p.m. Deputy Sheriff Isaiah Garrett, a black

like appellant, visited with him alone. Being cross-examined by

appellant, Garrett denied telling appellant that he had a sickness

and "we're going to put you in the hospital." Rather, Garrett

testified, he told appellant, "You have a problem," without charac-

terizing it, and “You need to tell the truth and get this over

with." (When Captain Smith testified before the jury, he answered

affirmatively when asked by aprellant, "Do you remember that the

Suggestion to give the confession was to Sergeant Garrett?") Pre-

Sumably Garrett then summoned the other officers, the recording

device was then turned on and appellant began a monologue covering

two pages of the transcription before being interrupted by LaFavers.

35 /

Drawing from a transcription of the recorded interview in

his possession, appellant cross-examined LaFavers about making ~*

Such statements as "It [appelli.nt's sex drive] is something that

you yourself can't hold yourseif at fault for, it is something

that we wil] help you with, we will dco that," "{Wle recognize the

fact that you need help, and you are seeking that help now, psy-

chological and psychiatric help, and I think the Courts will re-

cognize that fact" and "You have the opportunity to help a lot of

other people. So I think you are making the right choice, you're

relieving yourself and you're relieving a lot of people. . .”

These statements do appear to have been made, but the questions

posee them completely out of context.

HAWKINS - Rehearing - 21

However much appellant disputed the testimonial and documentary

evidence that support those findings, the trial court “is the sole

judge of the weight and credibility of the witnesses,” Harville

v. State, 591 S.W.2d 864, 867 (Tex.Cr.App. 1979), and, believing

or disbelieving all or any part of the testimony of any witness,

Hughes v. State, 562 S.W.2d 857, 863 (Tex.Cr.App. 1978), resultant

findings of the trial judge will be upheld if supported by the

evidence, Myre v. State, 545 S.W.2d 820, 824 (Tex.Cr.App. 1977).

37 ,

ay peliant's attitude, reflected by his own testimony, is

that he was “dealing with people that were tricking me, that were

lying to me, that were deceiving me, promising me help when their

sole intention was to file capital murdez on me and give me the

death penalty," while he was "trying. . . to get the help I need."

As we read the transcriptions, they simply do not support that

position. Before his monologue was interrupted by LaFavers, accord-

ing to the defense version of the recording, appellant had already

moved from his childhood problems through his inability to satisfy

his wife to admitting the rape in Denver and an attempted rape, con-

cluding, “Sometimes I would leave home with good intentions, but

some force would turn me arounc. For the last two weeks or so. . .

I didn't want to live that way any longer and I still don't." Then

LaFavers made sympathetic remarks, including the willingness to try

to help with the problem, and was expressing an understanding of

appellant's "situation" when appellant interjected his own thought

that there are “two personalities in me." Building on that LaFavers

opined that the better personality could overcome "this other mind

that keeps dominating" the body, and that just recognizing and ad-

mitting the need for help is “half the battle," so that the "crisis

that you are going to have to eventually go through” is “happening

now" and appellant ought to think about helping other people and

himself; with that LaPavers said, "There's no sense in fighting us

or us fighting you or batting our heads any more," and suggested

that "we go back tu this period when it started here. . . and you

go ahead and fill me in." Responding, “Okay,” appellant began to

answer some general questions and shortly more specific ones about

past crimes, phrased by LaFavers from a “book of reports" to "re-

fresh" appellant's memory. At last LaFavers requested appellant

"to go back to the girl in Panl.andle,“ the case at bar, and in

answer to questions appellant related in detail how he committed

the offense. In much the same way appellant described another homi-

cide in Borger. He was then offered a soft drink and a piece of

pie and, while waiting for them to be brought, according to the

transcription, LaFavers spellec out appellant's name as he began

to type in the confession form.

HAWKINS - Rehearing - 22

seideas is ample evidence to support the findings of the trial

‘ oar We adhere to the settled rule that a confession must

be free and voluntary and is not to be “obtained by any direct or

implied promises however slight, nor by the exertion of any im-

proper influence," Roberts v. State, 545 S.W.2d 157, 161 (Tex.Cr.

App. 1977). Still, even if, contrary to the usual procedure on

review, the various statements made by LaFavers are viewed in a

light most favorable to appellant, they do not constitute promises

to obtain "mental help” in exchange for a confession. So far as

this record shows, it was appellant who first introduced to his

interrogators a long history of abnormal sexual behavior ‘to

account for his most recent persistently bizarre misbehavior and

violent criminal acts and conduct. Naturally LaFavers and the

other officers professed understanding and empathy when appellant

expressed so much self-concern that he “didn't want to live that

way any longer and I still don't" - not to promise anything but to

get to the point of the AE OEP, In the circumstances of

this case, we find that kind of role-playing was neither improper

nor did it induce or persuade appellant to confess his guilt.

38/

“We note that in trial LaFavers acknowledged making nearly

every statement attributed to him by the transcription, taking

pains at times to expia‘n his true intent ani purpose wus other

than promising anything, and a properly charged jury found the

confession by appellant was “freely and voluntarily made. . .

without compulsion or persuasio:." That finding is also supported

by the evidence. Ground of error seventeen, contending otherwise,

is overruled.

39/

“As LaFavers explained to appellant before the jury, "I

didn't want to, so to speak, lose you at that point, and you to

talk about different things, so I would agree with you on points

rather than try to agitate you by disagreeing."

HAWKINS - Rehearing - 23

See Roberts v. State, supra, at 161. Thus, we further conclude

that the evidence supports the two findings of the trial court,

excerptee ante, and overrule ground of error one. Harville v.

State, 591 S.W.2d 864, 867 (Tex.Cr.App. 1979); Burks v. State,

583 S.W.2d 389, 393 (Tex.Cr.App. 1979); Hammett v. State, 578

S.W.2d 699, 711-712 (Tex.Cr.App. 1979); Hughes v. State, 562 S.W.2d

857, 863 (Tex.Cr.App. 1978). |

Grounds of error eleven and twelve assert, respectively,

that the trial court allowed the State to suppress evidence

favorable to appellant and that assessment of the death penalty

is contrary to law. However, his real complaints concern femarks

by the prosecutor that appellant Says presented "a false picture”

to the jury~~And the recanting of their initial impressions of

his mental condition by Dr. Wall, the psychologist, and Dr.

Pennal, the psychiatrist, as well as the limited examination con-

ducted by Dr. Grigson to base his testimony. "This kind of madness

by the court and prosecutor, with extreme attempts to suppress

evidence, and paint a false picture to the jury," he argues,

40/

“One part of the “false picture" was introduction of personal

items - a pillowcase, towel, and the like - taken from the home of

appellant by officers armed with his written consent to search. His

objection to their being admitted, also claimed as error in ground

ten, is that the officer did not receipt tor the items. The con-

tention is utterly without merit. The authority he cites, old Article

18.20, V.A.C.C.P., no longer exists.

41/

“This is probably an allusion to the fact that certain subpoenas

obtained by appellant were not served, or at least a return of ser-

vice was not made. The complaint is made in more detail in ground

of error three. However, the trial court, upon learning that the

applications for subpoenas were not made until during voir dire,

warned appellant that they might be too late, offered to do all

- Possible to see they were served, later directed standby counsel to

assist in expediting appearances and gencrally extended utmost coop-

eration. The simple fact of the matter is, as the trial court ex-

Pressly found in the record, that appellant did not exercise due dili-

gence in this respect, see, €.9., Denny v. State, 558 S.W.2a 467, 470

(Tex.Cr.App. 1977), nor have the record reflect that the prospective

testimony would be material to his defense. This ground of error is

Overruled as, for much the same reasons, is ground of error four com-

Plaining of refusing a continuance on account of the missing witnesses

1 ear ck See Jones v. State, 501 S.W.2d 677, 679 (Tex.Cr.App.

HAWKINS - Rehearing - 24

“resulted in an illegal sentence [sic] of death to the appellant.”

Every record reference cited by appellant has been carefully

read and considered against his complaints and argument, and it

is our judgment that there is no error in any of this. The jury

was made aware of the changed diagnoses and the reasons therefor;

it was the exclusive judge of the credibility of the witnesses

and the weight to be given their testimony. As judges of a re-

viewing court we cannot say the jury was misled in performing its

exclusive function, to the detriment of appellant. Grounds of

error eleven and twelve are overruled.

In another cluster of grounds of error, thirteen, fourteen

and fifteen, appellant contends the State did not prove “knowingly”

and “intentionally," as alleged in the indictment, and “deliberately,”

as submitted in special issue one pursuant to Article 37.071(b) (1),

V.A.C.C.P. But the thrust of his similar contention in each ground

of error is not to an evidentiary insufficiency of his culpable

mental states and his deliberateness. Rather, citing V.T.C.A. Penal

Code, $50.01-~and 19.06, and asserting that the State's testimony

about his state of mind was "in violation" of Article 46.02,-¥.a.C.C.-:

42 ‘

section 8.01 provides that insanity at the time of the offense

is an affirmative defense, and it defines “mental disease or defect.”

section 19.06 dictates that in prosecutions for murder or

voluntary manslaughter admissitle evidence includes “all relevant

facts and circumstances going to show the condition of the mind of

the accused at the time of the offense.”

Vv eiele 46.02, supra, prescribes procvdures for determining

and consequences of finding incompetency to stand trial - a question

that was answered in the case at bar by unimpeachable pretrial pro-

ceedings; see discussion under ground of error nine, ante.

HAWKINS = Rehearing - 25

appellant would have it that the matter cf his sanity at the time

of the offense “is still unresolved." With this we do not agree,

for with a full exposition of available testimony and documentary

evidence before it and properly charged on the issue by the trial

court, the jury had to find in order to convict appellant, and

patently did find, that his affirmative defense of insanity was

not supported by a preponderance of the evidence, a burden that

the law imposes on appellant. Graham v. State, 566 S.W.2d 941,

943, 948-953 (Tex.Cr.App. 1978) is particularly instructive in

these respects, and from the record of what the jury heard and saw

we are unable to hold this to be one of those rare cases in which

the findings by the jury on the sanity issue must be overturned,

Graham v. State, supra, at 953. Grounds of error thirteen, fourteen

and fifteen are overruled. |

Citing to us Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491,

52 L.Ed.2d (1977), appellant complains in his sixth ground of

error that the trial court erred in denying him access to a law

library. In the context of a convicted inmate of a state correc-

tional institution, the Supreme Court held that a prisoner's right

to access to courts requires provision of an adequate law library

or adequate assistance of persons trained in the law. Through a

layman confined with him in the Potter County Jail, appellant

addressed to the trial judge a written request for access to a law .

library that is dated Septembex: 28, 1978 and bears a timestamp of

October 3, 1978. The request was rejected by written order re-

citing that it was considered on the latter date and denied be-~

cause the assisting layman “has no standing” in the cause involving

45/

appellant. Be that as it may, during this period of time appellant

‘

45/ ~

he see Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21

L.Ed.2d 718 (1969), holding invalid a statute prohibiting aid from

a fellow inmate in the absence of an adequate substitute.

HAWKINS - Rehearing - 26

was represented by court-appointed counsel who prepared and filed

motions in his behalf, participated in pretrial hearings to the

extent appellant, then pondering selfrepresentation, would permit

and generally rendered aid and assistance ordinarily expected of

a criminal law practitioner. Not until a full pretrial hearing

held October 6, 1978, did the trial court determine and order

that appellant had waived his right to court~-appoincee counsel

and, concomitantly, would be permitted to defend himself - with

such assistance of standby counsel as he desired. Thus, even if

the rationale of Bounds v. Smith, supra, be applicable to a pre-

trial detainee in a local jail - and we need not decide that point

- still the ruling of the trial court was correct for appellant

then had adequate assistance of an attorney trained in the law.

Subsequently appellant was transferred from Potter County to

the Travis County Jail; an order directing the Sheriff to do so

is dated October 17, 1978, and a paper purportedly executed by

appellant in Travis County shows his date of commitment in that

jail as October 18, 1978. November 27, 1978, with scheduled voir

dire about to commence, appellant moved orally for access to a law

library, to which the trial judge responded, "I will have Mr. Hale

[standby court-appointed counsel] obtain and we will assist you in

obtaining anything that you specifically request. .. [and]...

if you don't know exactly what you need but you want him to find

what is available on a certain point of law then I will request

him to do that research for you and to bring you, either through

Xerox copies or through actual books, the items you request.”

Appellant did not protest that procedure and now does not

contend the program planned by the trial judge was not implemented.

HAWKINS - Rehearing - 27

Indeed, in arguing under this point he states, "Travis County

does have a prison inmate library in the County jail. . . [and]

it is a full volume library,” and that he was aided by the librarian,

whose name is given. We perceive no error in the initial ruling

by the trial court in Potter County nor the manner of providing

access to legal materials in Travis County. Ground of error six

is overruled.

In his seventh ground of error appellant complains that the

trial court overruled his objection to what he sees as an attempt

by the prosecutor to prejudice verniremembers by the phraseology

of an introductory remark to the law concerning an affirmative

defense of insanity. He claims a reoccurrence over his objection

"several times," but only directs us to a single incident, examina-

tion of the eleventh venire person, Betty Cowie, viz:

"[Prosecutor]: The Defendant has exercised

another right that any defendant in any criminal

case has; he has given notice that intends to claim

the defense of insanity as a defense in an effort to

be found not guilty of the indictment against him.

_ MR, HAWKINS: Judge, I object to that, his quotation

that I claim to use the insanity in order to not be

found guilty of an offense.

THE COURT: I will overrule the objection." 46/

46/

During his own examination of Cowie, appellant and she got into

an exchange over whether, as appellant would have it, "a violation of

the law is not a crime when a person commits it whiie he is insane;”

her thought was that "it is a violation whether you're insane or not.”

The ensuing verbal flap was calmed when the trial judge pronounced

the difficulty "just a problem in semantics." The Court has stated

the view expressed by Cowie in strikingly similar terms:

“, .« « Insanity is a defense that excuses a defendant

from punishment because of his state of mind at the

time of the commission of the act. ... It does not

mean that the conduct. . . does not constitute an offense."

Pesch v. State, 524 S$.W.2d 209, 301 (Tex.Cr.App. 1975). As more

recently pointed out in Graham v. State, supra, at 948, "The purpose

of the insanity defense issue is to determine whether the accused

should be held responsible for the crime, or whether his mental con-

dition will excuse holding him responsible." We have dwelled on

this matter in order to demonstrate the basic misconception that

colors appellant's approach to and his analysis of the asserted

ground of error.

HAWKINS - Rehearing - 28

Not being pointed to pages in the record where, according to

appellant, the State similarly addressed five persons who ultimately

were seated as jurors, or even their names, for resolution of the

problem we will not assume arguendo that such is the state of the

SRE As to them, nothing is presented for review. Love v.

State, 533 S.W.2d 6, 9-10 (Tex.Cr.App. 1975); Chappell v. State,

519 S.W.2a 453, 457 (Zex.Cr.App. 1975); Dabbs v. State, 407 S.W.2d

567, 569 (Tex.Cr.App. 1974); Reynolds v. State, 506 S.W.2d 864,

866, 867 (Tex.Cr.App. 1974). We may not take venireperson Cowie

as a typical example, see Davis v. State, 529 S.W.2d 547, 548 (Tex.

Cr.App. 1975), for before being excused for cause she made” it

plain that even should appellant prove his insanity as defined by

law she would still convict him. Thus, as to her at least,

appellant was helped, not harmed, by the insinuating phrasing of

its question by the State. Ground of error seven is overruled.

The grounds of error presented by appellant do not reveal any

error harmful enough to require reversal of his conviction.

The State's motion for rehearing is granted and the judgment is affirmed.

| __CLINTM, so8ge

EN BANC

(Delivered January 14, 1981)

McCormick, J., not participating

47/

“The voir dire examination was of thirty three prospective

jurors; it consumes one thousard pages in five separate volumes of

the record before us. That appellant is able accurately to cite

volume, page and line numbers of the record in reference to the

Cowie exchange and other transactions about which he complains under

the balance of his ground oferrors evidences his access to the whole

record. Even the mandatory review of conviction in a capital case

does not excuse a failure to comply with important rules for brief-

ing grounds of error in this Court, e.g., Article 40.04, §9, that

are applicable to an appellant acting pro se as well as one re~-

presented by counsel.. Williams v. State, 549 S.W.2d 183, 186-187

(Tex.Cr.App. 1977).

HP de Nbr” BR #

SAMUEL HAWKINS, Appellant

NO. 62,534 Vv. --- Appeal from TRAVIS County

THE STATE OF TEXAS, Appellee

OPINION

This is an appesl from a conviction for capital murder.

The jury answered affirmatively the special issues submitted

pursuant to Article 37.071, Vernon's Ann.C.C.P. Accordingly,

the punishment was assessed at death. .

Appellant was tried in Travis County on a change of venue

from Potter County. This case presents a rather novel factual

situation. This capital murder defendant, who had had past

dealings with the criminal justice system, chose to represent

himself at his capital murder trial. Standby counsel was

‘appointed to assist appellant in the conduct of the trial.

Counsel sat with appellant throughout each phase of the trial

and consulted with appellant from time to time. However, the

record reflects that appellant himself conducted the voir dire

examination of the jury, examined and cross-examined witnesses,

made objections to evidence offered by the State, testified in

his own behalf, submitted proposed jury charges, and argued

his case to the jury.

The State's evidence showed that appellant murdered a

12 year old girl during the course of kidnapping and attempting

to rape her. Appellant's defense was insanity. He, in essence,

admitted the commission of the offense, which was substantiated

by a confession which he had made earlier, but claimed that he

was unable to conform his conduct to the requirements of the

law. See V.T.C.A. Penal Code, Section 8.01.

Appellant also arereeers himself on appeal. However in a

brief filed by amicus curiae, the contention is advanced that

i/ é

The amicus curiae, granted leave to file a brief in /

appellant's behalf, represent the Texas Civil Liberties Union. /

Hawkins - 2

the trial court erred in permitting appellant to represent him-

self without 1) determining that appellant made an intelligent

and voluntary waiver of counsel and, 2) admonishing appellant

sufficiently as to the dangers and disadvantages of self-

representation. Under the authority provided by this Court,

we are constrained: to agree.

The record reflects that the trial court appointed four

different lawyers to represent appellant at different times,

with appellant refusing the services of each. Appellant, who

the record indicates had recently been on trial for other crimes,

thought that none of the attorneys appointed by the court would

work in his best interest. Over the course of several weeks,

prior to trial, the trial court and appellant had continuing

conversations concerning the issue of legal representation of

appellant. Relevant portions of those discussions are as

follows:

“THE COURT: ... If you want to represent your-

self, and understand, Mr. Hawkins, I do not think

that that is in your best interest, I think

that you are not qualified, your education does

not qualify you to represent yourself. But if

you are going to insist on representing yourself,

and I know you have been over this in prior trials

with prior Judges and you understand that right,

I will allow you to do so.... we might as well

cover this, even though you are not a lawyer,

I'm going to expect you to conduct yourself

in the same way that a lawyer would. And you

will be required to ask questions in the same

manner that a lawyer would and I will not tolerate

any kind of disruptive behavior.

* * *

[Appellant] ... I'm not silly enough to think

that I'm competent to represent myself, I don't

think that for a second, I never thought that.

But I know, as far as [the appointed attorneys]

representing me, the competency is equal.

The trial court inquired of appellant whether he would accept

representation by counsel if the court appointed still another

lawyer. Appellant indicated that he would, and the trial court

Hawkins - 3

did so. However, at the next hearing, after new counsel had

been appointed, the discussions continued.

“THE COURT: ... When we proceed, either you

are going to represent yourself or Mr. Hale

is going to represent you. And if you are

going to. persist in standing up and making your

own objections and making your own statements,

then you will have made the decision to represent

yourself.

THE DEFENDANT: Judge, I'm not going to take just

a flat passive role in this case when its for

my life, if that's what you expect me to do, I'm

not going to do it.

* * *

THE COURT: ... if you want to represent your-

self you can. But you are not going to have

your cake and eat it too. You are either going

to have Mr. Hale represent you or you are going

to represent yourself. And I am not going to

hear two sets of motions and two sets of objections

on every point that comes up.”

Later, the trial court convened a special hearing to finally

resolve the question of whether appeliant would represent him-

self. The record reflects that appellant told the court that

he had decided to represent himself. The trial court rejected

his request that he be allowed to be represented by an attorney

and act as co-counsel, participating in the trial. Although

the court would not accept this hybrid representation, it did

indicate to appellant that standby counsel would be available

to advise appellant or to take over representation, should ap-

pellant change his mind during the course of the trial. The

court admonished him:

“... either you have got to take on the repre-

sentation or you have got to give Mr.Hale

the authority to take on the representation

and consent to that and be bound by his deci-

sions.

Also, I want you to understand, and_I think

you do if you did read those cases,2/ that

The record reflects that the trial court gave appellant

some cases on this subject to read; the record, however, does

not reveal what cases these were.

Hawkins - 4

should you decide to represent yourself that

you will be bound by the law and so you

will be bound by the procedural rules that we

have in court, and you will be bound by the,

what we call ‘substantive law,' you will be

bound by the law that exists in the United

States and in the State of Texas regarding

the criminal offense and criminal trials."

After this, the court entered an order permitting appellant to

represent himself.

The Sixth Amendment to the Constitution of the United

States and Article 1, Section 10 of the Texas Constitution pro-

vide that a defendant in a criminal trial has the right to the

assistance of counsel. This right to counsel may be waived

and the defendant may choose to represent himself at trial.

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2a

561 (1975). However, as the Supreme Court stated in Faretta:

"When an accused manages his own defense, he

relinquishes, as a purely factual matter, many

of the traditional benefits associated with the

right to counsel. For this reason, in order

to represent himself, the accused must "knowingly

and intelligently' forego those relinquished bene-

fits. Johnson v. Zerbst, 304 U.S. at 464-465, . ;

58 S.Ct. at 1023 [citation omitted]. Although a

defendant need not himself have the skill and

experience of a lawyer in order competently

and intelligently to choose self-representation,

he should be made aware of the dangers and dis-

advantages of self-representation, so that the

record will establish that ‘he knows what he is

doing and his choice is made with eyes open.’

Adams v. United States ex rel. McCann, 317 U.S.,

at 279, 63 S.Ct., at 242."

A waiver of the right to counsel will not be “lightly in-

ferred" and the courts will indulge every reasonable presump-

tion against the validity of such a waiver. Johnson v. Zerbst,

304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Geeslin

v. State, S.W.2d , (No. 58,451, delivered May 7, 1980);

Trevino v. State, 555 S.W.2d 750 (Tex.Or.App. 1977). The pro-

secution has a heavy burden to demonstrate that a waiver of

constitutional rights was made intelligently, knowingly and

voluntarily, particularly when that right was the right to

‘Hawkins - 5

counsel. Geeslin v. State, supra; Trevino v. State, supra;

Robles v. State, 577 S.W.2d 699 (Tex.Cr.App. 1979); Barbour

v. State, 551 S.W.2d 371 (Tex.Cr.App. 1977).

In determining whether a valid waiver of counsel has been

made, Faretta, supra, requires, and this.Court has repeatedly

stressed that: (1) the detendant must make a knowing and in-

telligent waiver and (2) the defendant must be made aware of

"the dangers and disadvantages of self-representation. Faretta

v. California, 422 U.S. at 836, 95 S.Ct. at 2541; Goodman v.

State, 591 S.W.2d 498 (Tex.Cr.App. 1980); Renfro v. State, 586

S.W.2d 496 (Tex.Cr.App. 1979). These are two distinct require-

ments and the trial court must be satisfied as to their exis-

tence before allowing a defendant to represent himself.

This Court has previously held that in order to determine

whether a defendant's waiver is intelligent and voluntary, the

trial court should inquire into the defendant's background,

age, education and ksipaictaens Geeslin v. State, supra; ,

Renfro v. State, supra; Lisney v. State, 574 S.W.2d 144 (Tex.

Cr.App. 1978). The record should reflect such an inquiry and it

should further show that the defendant was informed as to his

right to counsel and that he affirmatively waived this right,

intending to represent himself alone. Webb v. State, 533

S.W.2d 780 (Tex.Cr.App. 1976); Thomas v. State, 550 S.W.2d 64

(Tex.Cr.App. 1977). The trial court is not obligated to assess

a defendant's technical legal knowledge and such knowledge is

We note that these factors have been treated in some

cases to be mandatory inquiries. See, e.g., Geeslin v. State,

S.W.2d (No. 58,451, delivered May 7, 1980); Renfro v.

State, 586 5.W.2d 496 (Tex.Cr.Aop. 1979). They are not mandatory

inquiries, in and of themselves. Rather, they are only some

factors, which, among others, may be proper inquiry for the

trial court in determining whether 2 defendant is knowingly

and intelligently waiving his right to counsel.

Hawkins - 6

not relevant to an assessment of his knowing exercise of the

right to defend himself. Faretta v. California, supra.

Rather, the defendant must show sufficient intelligence to

demonstrate a capacity to waive his right to counsel and the

ability to appreciate the practical disadvantage he will con-

front in representing himself. Trevino v. State, supra.

Pursuant to the mandate of Faretta, the trial court is also

obligated to insure that the defendant waiving his right to

counsel is fully aware of the dangers and disadvantages of

self-representation. In Webb v. State, supra, this Court

stated, "The trial court should... admonish an accused who

desires to represent himself regarding the wisdom and the prac-

tical consequences of that desire." The facts demonstrating

the defendant's awareness of such must affirmatively appear in

the record. Webb v. State, supra. The defendant should be

made aware of the general nature of the offense he is charged

with and with the possible penalties that may be imposed. Geeslin

v. State, supra; Goodman v. State, supra. The defendant should

be made aware that there are technical rules of evidence and

procedure that he will be obligated to comply with and that he

will not be granted any special consideration because of his

lack of formal training in law. In short, the defendant

must be aware that "he will be on his own in a complex area."

Geeslin v. State, supra; Trevino v. State, supra.

In the instant case, we must conclude that the trial court's

admonitions to appellant were not sufficient to meet either the

standard for waiver of counsel or the standard enunciated in

Faretta. See Geeslin v. State, supra; Goodman v. State, supra;

Barbour v. State, supra. Since the record does not affirmatively

reflect appellant's intelligent, voluntary and knowing waiver

of representation by counsel, and that he was aware of the

dangers and disadvantages of self-representation, the case

must be remanded for a new trial.

Hawkins - 7

We are not unmindful that an accused's right to represent

himself cannot be manipulated by him so as to obstruct the

orderly procedure in the courts or to interfere with the fair

administration of justice. Robles v. State, 577 S.W.2d 699

(Tex.Cr.App. 1979); Webb v. State, supra. Indeed, the trial

court here was confronted with a very difficult defendant,

who rejected lawye~ after lawyer appointed to represent him.

However, it is nevertheless the duty of the trial court to

insure that a defendant, even an uncooperative one, understands

well what he stands to lose by the rejection of counsel and the

decision to proceed in his own behalf.

It has been suggested that a capital murder defendant, who

is facing the possibility of a death sentence, can never validly

waive counsel and represent himself. This is not true.

Paretta v. California, supra, held that the right of self-

representation is embodied in the Sixth Amendment to the Con~

stitution. Indeed, the rationale of Faretta was based upon a

recognition that,

"The right to defend is personal. The de-

fendant, and not his lawyer or the State, will

bear the personal consequences of a conviction.

It is the defendant, therefore, who must be.

free personally to decide whether in his parti-

cular case counsel is to his advantage. And

although he may conduct his own defense ultimatel

to his own detriment, his choice must be honored

out o that respect for the individual whic

is the lifeblood of the law.’ {citation omitted)"

phasis adde Paretta v. California, 422

U.S. at 835, 95 S.Ct. at 2540, 2541.

Since Faretta was premised upon the recognition of respect for

individual choice, the defendant himself bearing the personal

consequences of a criminal conviction, what greater interest

can the State have in protecting this choice than in a situation

where the defendant faces the ultimate punishment.

The suggestion is also made that a defendant, who chooses

to advance a defense of insanity, can never be competent to

waive counsel and represent himself. Neither is this true.

Hawkins - 8

A defendant, competent to stand trial, who is able to make a

knowing, voluntary and intelligent choice to waive counsel,

and who is made aware of the dangers he faces in proceeding

on his own, is guaranteed the right of self-representation by

Faretta, regardless of which defense he chooses to assert.

Because of the failure of the record to reflect a proper

waiver of counsel and an informed decision about self-representa-

tion, the judgment is reversed and the cause remanded for a new

trial.

W. C. DAVIS, Judge

Delivered September 10, 1980

En Banc

Douglas, J. and T. Davis, J. dissent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.