Petition — Barefoot v. Estelle

——_—

RECEIVED

ne 4938 1p FEB 1 069

OFFICE OF 4.4: _. cien

IN THE SUPREME Cours, yu s. |

an

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

THOMAS A, BAREFOOT,

Petitioner

v.

W. J. ESTELLE, JR., DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Respondent

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner Thomas A. Barefoot files this Motion for

Leave to Proceed in Forma Pauperis supported by his affidavit

and for cause would show the following:

Petitioner was convicted and sentenced to death for the of-

fense of capital murder on November 14, 1978.

The conviction was affirmed by the Court of Criminal Appeals

o/ Texas, Barefoot v. State, 596 S.W.2d 875 (Tex.Cr.App.1980).

This Court denied certiorari, Cause No. 80-5320, on June 29,

1981.

Petitioner's state post-conviction remedies were denied

without hearing.cr written opinion by the Texas trial and ap-

pellate courts on October 7, 1981.

On October 9, 1981, the United States District Court for the

Western District of Texas, Austin Division, stayed petitioner's

scheduled October 13, 1981, execution, and the cause was trans-

to the Waco Division for further action.

An evidentiary hearing was conducted July 28, 1982. On

November 12, 1982, the District Court filed findings of Fact

and Conclusions of Law, denying Petitioner relief but grant-

ing a Certificate of Probable Cause and leave to proceed in

forma pauperis. Petitoner gave timely notice of appeal to the

United States Court of Appeals for the Fifth Circuit.

Upon respondent's motion, the District Court then dissolved

the stay of execution and the state trial judge ordered that

petitioner be executed on January 25, 1983.

Petitioner exhausted the available state remedies a second

time, again without hearing or written opinion,

A Motion for Stay of Execution was filed in the Court of

Appeais. On January 17, 1983, the court informed counsel to

appear and argue on January 19, 1983. The Court of Appeals

denied the stay of execution on January 20, 1983.

Petitioner then applied to this Court for a Stay of Execu-

tion. On January 24, 1983, the Court entered an Order treat-

ing the Application as a Petition for Writ of Certiorari be-

fore judgment and granted certiorari. An expedited briefing

schedule was ordered.

Petititioner is a citizen of the United States of America.

Because of his poverty, attested to in his attached affidavit,

he is unable to pay costs or give security for costs in this

cause. For these reasons, Petitioner prays that he be allowed

to proceed in forma pauperis.

Respectfully submitted,

MP Cac

Will Gray

2038 Lexington Street

Houston, Texas 77098

713-759-0585

TBA # 08339000 7

(Atithpe “2 Sate 2

Carolyn Garcia

2038 Lexington Street

Houston, Texas 77098

713-524-5007

TBA #@ 07631700

Petitioner's lawyers

"REVES——

FEB 14 1993

3 ERK

orrice OF THE CLE

SUPREME COURT, US.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1982

(A-638)

NO. 82-6080

THOMAS A. BAREFOOT,

Petitioner

versus

W. J. ESTELLE, JR., DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Respondent

PETITIONER'S AFFIDAVIT OF POVERTY

Petitioner Thomas A. Barefoot, being duly sworn, did depose

and say that he is an indigent person, totally without funds

with which to pay the costs of preparing and filing a brief

and appendix in furtherance of the petition for writ of

certiorari before judgment granted by the Court in this cause.

Petitioner owns no property and has no assets and has been in

State custody since his arrest in this cause on August 9,

1978. Unless he is permitted to proceed in forma pauperis,

the serious constitutional issues upon which this Court has

granted certiorari will not be resolved.

THE STATE OF TEXAS

COUNTY OF McCLENNAN

BEFORE ME, the undersigned authority, on this day personally

appeared THOMAS A. BAREFOOT who, being duly sworn, did depose

and say that he is the Petitioner in Cause No. 82-6080, now

pending in the Supreme Court of the United States; and that

all matters of fact contained in the above Affidavit of Po-

verty are true.

S pare AF Oe Oe ae

Thomas A. Barefoot =

SUESCRIBED AND SWORN TO on this the 10th day of February,

1983, to certify which witness my hand and seal of office.

q

“Vy J AZ

Sires © He Ye

Notary Pyblic in and for the

State of Texas.

My Commission expires on the

a 3 "9

30 day of (LAAcCsi— .

J

1989,

RECEIVED

JAN 21 1983

OFFICE OF THE CLERK

SUPREME COURT, U.S.

. £8

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

THOMAS A. BAREFOOT,

Petitioner,

Ve

W. J. ESTELLE, Director

Texas Department of Corrections,

Respondent.

APPLICATION FOR STAY OF EXECUTION

This is a federal habeas corpus proceeding in a death

case. Relief against petitioner's execution, scheduled to

take place between midnight and sunrise on Tuesday, January

25, 1983, was denied by the district court and the court of

appeals below. Petitioner hereby applies for a stay of that

execution pending filing and determination of a petition for

certiorari to review the decision of the United States Court

of Appeals for the Fifth Circuit denying petitioner's appli-

cation for a stay of execution.

This Court's certiorari jurisdiction reaches the case

whether or not the court of appeals' decision of a stay is

treated as a "rendition of judgment.” 28 U.S.C. § 1254(1).1/

An alternative source of certiorari exists under 28 U.S.C. § 1651.

See Maxwell v. Bishop, 385 U.S. 650 (1967); Burwell v. Teets,

350 U.S. 808 (1955). In any event, the decision below is final

in every technical sense, see Cohen v. Beneficial Loan Corp.,

337 U.S. 541 (1949), as well as having the absolute finality of

death.

The question to be presented on certiorari is the appro-

priate standard for granting or denying a stay of execution

when a death-sentenced federal habeas corpus petitioner presents

a constitutional issue of first impression to a federal court

of appeals. Here, despite the fact that petitioner challenged

his capital sentence on a ground resolved by no prior decision

of this Court or of the Fifth Circuit -- a ground on which

petitioner could point to both decisions of other courts and an

extensive legal literature supporting him -- his claim was

finally adjudicated in a couple of days of rushed stay proceed-

ings, with manifestly inadequate time for study or deliberation

by the court of appeais, instead of being considered in the

orderly and measured manner in which any other claim of equal

dignity would be considered by a federal court.

If this had been a civil action raising an equally difficult

and novel constitutional question with nominal damages at stake,

petitioner would have had the opportuity for full briefing and

oral argument on the merits in the court of appeals. The

court of appeals would predictably have taken more than one

day to study the voluminous record. It would have received

l/ Since the district court granted a certificate of probable

cause to appeal in this case (28 U.S.C. § 2253), and since the

court of appeals has not dismissed that appeal or summarily

affirmed the denial of habeas corpus relief, petitioner's

appeal is still technically pending before the court of appeals.

ite

a

rs

|

an amicus brief supporting petitioner on behalf of the American

Psychiatric Association -- a brief that would have disabused

it of the view which the unbriefed court of appeals thought

that "(tjJhe majority of psychiatric experts accept," opinion

of the court of appeals, Appendix A, infra, at 7. It would, in

short, have addressed the issues presented in the deliberate

and reflective fashion that regularly characterizes federal

appellate review. But because petitioner's life is at stake --

and with no showing or credible profession by the State of

Texas that the State would be prejudiced by postponing his

excecution for the time necessary to permit an adequate study

of those issues by the court of appeals -- petitioner is denied

all of these things.

We submit that this is no way to handle death cases. It

delivers neither justice nor the appearance of justice. Cf.

Gardner v. Plorida, 430 U.S. 349, 357-58, 359-60 (1977)

(plurality opinion). It harries judges unnecessarily and

treats litigants unfairly. It fecklessly burdens this Court

with hurried stay applications like the present one. Before

this becomes standara operating procedure for the processing of

capital habeas corpus appeals in the Fifth Circuit and perhaps

elsewhere, this Court should consider its propriety. Peti-

tioner's execution should be stayed and certiorari should be

granted to examine the question whether the court of appeals

applied proper standards in its denial of a stay.

I

The issues upon which the stay of execution was requested

in the court of appeals are set forth in petitioner's Motion

for Stay of Execution to that court, a two-volume document

which is being submitted to this Court herewith. The larger

-3-

of these two volumes contains the Motion itself plus an Appendix

consisting of eleven exhibits (labled "A" through "K"); the

smaller volume, entitled “Exhibits on Motion for Stay of Execu-

tion," contains four additional exhibits (labeled "1" through

"4") also submitted to the court of appeals. The opinion of the

court of appeals denying the stay is annexed hereto as Appendix A.

II

Briefly stated, the history of the court of appeals’ con-

sideration of petitioner's stay application was as follows:

The application was filed on Friday, January 14, 1983. At

approximately 3 P.M. on Monday, January 17, the court scheduled

oral argument on the application for Wednesday, January 19 at

9:00 A.M., in Houston, Texas, before a panel of Judges John R.

Brown, Thomas M. Reavley, and E. Grady Jolly. On Tuesday, Jan-

uary 18, the State's papers in opposition to the stay were filed.

On the morning of Wednesday, January 19, Judge Brown

was unavailable due to illness and was replaced on the panel by

Judge Carolyn D. Randall. Judge Reavley advised counsel for

both sides in open court that Judge Randall had not yet seen

any of the papers filed. Oral argument took place on January

19 between approximately 9:30 A.M. and 11:00 A.M.

At oral argument, counsel for respondent submitted a

copy of the transcript of the habeas corpus hearing conducted

in the district court on July 28, 1982,2/ and counsel for

2/ The stenographer's certification indicates that this

transcript was finally completed on January 14, 1983. It

had not been made available to petitioner's counsel prior to

oral argument on the stay application. A representative of

petitioner's counsel in Austin, Texas obtained a copy from

the Texas Attorney General's office on the afternoon of January

20, after the court of appeals had denied the stay; the tran-

script is now en routs to the court via Federal Express and is

scheduled to arrive at 10:30 A.M. on January 21. We are advised

that the transcript is approximately 260 pages long.

—

petitioner submitted his "Exhibits on Motion for Stay of

Execution" containing the four additional exhibits labeled "1"

through "4". After oral argument on January 19, at approximately

12:10 P.M., the court was provided with a copy of the stenographic

record of petitioner's state court trial and sentencing hearing.

This record is approximately 1400 pages long.

At about 1 P.M. the following day, Thursday, January 20,

the court of appeals issued its 16-page opinion denying a stay of

execution.

IIr

The Fifth Circuit's denial of a stay of execution presents

a manifestly substantial issue for review on certiorari by this

Court. A stay should be granted to permit that review.

A

The court of appeals in this case has extended its recent

decision in Brooks v. Estelle?’ to hold that constitutional

issues of first impression which are manifestly not frivolous

may nonetheless be rejected summarily upon a motion for a stay

of execution.

Petitioner contended below that the “hypothetical” testi-

mony of psychiatrists James P. Grigson and John Holbrook pre-

Gicting petitioner's long-term future dangerousness violated

his rights under the Eighth and Pourteenth Amendments. An

abudance of legal and peychiatric literature, summarized for

this Court by the American Psychiatric Association in Point

I of its amicus curiae brief in Estelle v. Smith (No. 79-1127),

supports petitioner's position. A copy cf that Point of the

Association's amicus brief in Smith is annexed hereto as

Appendix B.

3 No. 82-1613, Nov. 26, 1982; motion for reconsideration

nied, Dec. 6, 1982.

~ 5 —

The American Psychiatric Association itself supports that

position, as the Smith amicus brief clearly reflects. See also

the Draft Report of the Assuciation's Task Force on the Role of

Psychiatry in the Sentencing Process (Exhibit G to petitioner's

stay application below), recently approved by the Association,

specifically criticizing the sort cf psychiatric testimony

presented for the prosecution in this case -- i.e., “hypothetical”

predictions of long-term future dangerousness, made without

examining the defendant -- as being “fraught with the possibility

of error." Id. at 32. The Association's counsel informed

counsel for petitioner in the court of appeals that the

Association was prepared to file an amicus curiae brief before

that court, and the court of appeals was advised of the

Association's intention (letter from Joseph N. Onek, Esq. to

Will Gray, Esq., dated January 11, 1983, Exhibit H to petitioner's

stay application below). The Association has advised. ccunsel

for petitioner that it is prepared to file an amicus curiae

brief in support of his certiorari petition before this Court

as well.

The Supreme Court of California has ruled in favor of

the position advocated by petitioner in People v. Murtishaw,

175 Cal. Rptr. 738, 631 P.2d 446, 466-71 (1981). (A copy of

the Murtishaw opinion appears in petitioner's Exhibits on

Motion for Stay of Execution as Exhibit 3.) Only recently a

federal district court in Houston, Texas expressed a similar

viewpoint in White v. Estelie, _—‘¥.Supp. ___, Civil Action

No. H-81-1661 (S.D. Tex. Dec. 30, 1982). See petitioner's

Motion for Stay of Execution below at 18 and Exhibit I.

The Texas Attorney General has stated flatly that the decision

in this case “is in conflict with" White. See petitioner's

Exhibits on Motion for Stay of Execution below, Exhibit i

i

(Respondent's Motion for New Trial in white. )4/ The panel of

the Fifth Circuit that decided Smith also expressed similar

sentiments. See Smith v. Estelle, 602 F.2d 694, 699-701 n.7

(Sth Cir. 1979).

But the issue now before this Court is not whether these

authorities are right or wrong. The issue is simply whether a.

constitutional claim which has attracted such authority on its

side may be dismissed in a death case as insubstantial, without

full briefing, oral argument on the merits, and reasoned con-

sideration of the impressive body of case law and psychiatric

authority which supports the claim. No decisions of this Court

or of the Fifth Circuit come near rejecting petitioner's claim.

The decision below rejects it only by the most tenuous extrapo-

lations from Jurek v. Texas, 428 U.S. 262 (1976) and Estelle v.

Smith, 451 U.S. 455 (1981) -- cases which plainly do not speak

to the question.2/

That the court of appeals did not grasp the issue --

understandably enough, with thousands of pages of papers in the

case before it, and a 16-page opinion to write in little more

4/ See also Gholson v. Estelle, Civil Action No. W-78-CA-68

W.D. Tex. Oct. 31, 1979), Slip op. at 6: “Although not

necessary to the dispositon of the matter before it, the Court

wishes to express its reservations about the validity of the

conclusions reached by Drs.Holbrook and Grigson, as well as

the relevancy of their testimony in deciding the s ial

verdict questions under [Tex. Code Crim. Pro.] Article 37.071."

The Texas Attorney General has conceded that in Gholson “the

court found that psychiatric testimony of this type is so

inherently unreliable that its very use violates the due

process rights of capital defendants.” Supplemental Brief

for Appellant in Gholsoiu v. Estelle, No. 79-3988, at 7. The

court of appeals ultimately affirmed the district court's

decision on other grounds. Gholson v. Estelle, 675 F.2d 734

(Sth Cir. 1982).

5/ See opinion of the court of appeals, Appendix A, infra,

at 9, contending that this Court “by implication" deci

the issue in Jurek and Snith.

F<

than a day -- is illustrated by its expression of concern that

"if testimony by a mental health professional, trained to

detect mental illness and personality types, is inherently

unreliable on the issue of future dangerousness, then would not

testimony and a decision by tuntutored lay persons on this issue

be even more unreliable?" Appendix A at 10. As the American

Psychiatric Association pointed out in its Smith amicus brief

at 16 (see Appendix B), the prejudice to capital defendants lies

in allowing psychiatrists to make predictions “with the mantle

of professional expertise,” with a "mystique" (id. at 17) that

is extremely persuasive to juries even though it has absolutely

no scientific basis. See People v. Murtishaw, supra, 631 F.2d

at 476 ("the probative value of that testimony is far outweighed

by its prejudicial impact"); White v. Estelle, supra, slip op.

at 17 (a psychiatrist's “hypothetical” testimony without

examination in this context "is not a professional, but a lay

opinion {footnote omitted]. However, when this lay opinion is

proferred by a witness bearing the title ‘Doctor,’ its impact

on the jury is much greater than if it were not masquerading as

something it is not.")

We respectfully submit that the refusal of the Fifth

Circuit to grant a stay of execution under these circumstances

presents an issue manifestly worthy of review on certiorari by

this Court.

Ms

Petitioner also sought a stay of execution below based

upon the recent admissions of Mrs. Mary Richards, one of the

eyewitnesses called by the prosecutor to place petitioner

near the scene of the crime, that she had lied in her trial

testimony and had done so with the knowledge of the prosecutor.

The court of appeals resolved this issue by deciding that Mrs.

a

ee

Richards' testimony “could not affect the decermination of

Barefoot's guilt." (Opinion of the court of appeals, Appendix

A, at 14.) Such a ground of decision necessarily requires a

thorough and searching review of the full record of petitioner's

trial. Yet that record, which consumes roughly 1400 pages, was

before the court of appeals for barely 24 hours prior to the

issuance of its decision. We respectfully submit that no court

can adequately review a record of that size in such a brief

period of time.

Here again, measured and considered deliberation has been

secrificed under the pressures of an imminent execution date

which the court of appeals declined to stay. Whether a court

in a death case may substitute such unseemly haste for orderly

appellate procedure is an issue manifestly worthy of review

on certiorari.£/

6 The court of appez)s' analysis of the record is deficient

n several respects. For example, it neglects to note that

the two Fort Hood soldiers who testified against petitioner

(Appendix A at 14-15) gave statements to the authorities on the

day of the crime describing an individual who did not look

anything like petitioner. Both described a man 6' or 6' to

6’2" tall, clean shaven, and with a short military haircut.

Statement of Pacts (hereinafter "SF") at 1206-08, 1254.

Petitioner is 5'4" tall, and had a mustache at the time of the

offense (SF 1606). He had shaved off hir mustache before

his arrest the following day (ibid.), but 2 photo taken

upon arrest clearly shows him to have long hair down to his

shoulders. (SF 2262, State's Exhibit 41). One of the soldiers

who subsequently identified petitioner at trial also conceded

that he had seen petitioner's face several times in newspaper

photogragphs and on television prior to picking his photo out

of a photographic line-up before trial (SF at 1208, 1215).

Similarly, the court of appeals’ description of the

testimony of petitioner's psychiatric experts at the federal

habeas corpus hearing (Appendix A at 7) is taken out of context

and incomplete. As noted previously (see n.2, supra), the full

transcript is en route to the Court and will be available for

for its consideration on this application.

CONCLUSION

Because of the unique differences between execution and

all other criminal sanctions, this Court

has gone to extraordinary meassures to ensure

that the prisoner sentenced to be executed is

afforded process that will guarantee, as much

as is humanly possible, that the sentence was

not imposed out of whim, passion, prejudcice

or mistake.

Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (concurring

opinion of Justice O'Connoc). Its insistence upon such

“extraordinary measures" applies both to the determination

that the defendant is guilty and to the determination that he

deserves to die. Beck v. Alabama, 447 U.S. 625, 637-38 (1980);

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion);

Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (plurality

opinion); id. 363-64 (concurring opinion of Justice White);

Woodson v. North Carolina, 428 U.S. 280, 305 (plurality opinion).

The decision below, hastily denying Thomas Barefoot a stay of

execution to permit one full opportunity for federal habeas

corpus review of substantial constitutional issues, plainly

violates these principles. This Court should grant a stay of

execution pending review of that decisicn on certiorari.

Respectfully submitted,

WILL GRAY

2038 Lexington Street

Houston, Texas 77098

(713) 759-0585

CAROLYN GARCIA

2038 Lexington Street

Houston, Texas 77098

(713) 524-5007

eee a

U. S. COURT OF APPEALS

FILED

JAN 2 0 1983}

GILBERT, £ GANUCHEAY

IN THE UNITED STATES COURT OF APPEALS ¢ OUST OF 4p...

FECEIVED ¢

FOR THE FIFTH CIRCUIT > : bos

AN j

JAN 201983 %:

ie

No. 82-1680 * OR. gans. A

THOMAS A. BAREFOOT,

Petitioner-Appellant,

Vv.

W. 3. ESTELLE, JR., Director,

Texas Department oi Corrections,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Texas

( January 20 , 1983)

Before REAVLEY, RANDALL and JOLLY, Circuit Judges

PER CURIAM:

Thomas A. Barefoot was convicted in November, 1978 of

murdering a Harker Heights police officer in Bell County, Texas

on August 7, 1978.4 ‘The Court of Criminal Appeals of Texas

affirmed the conviction on March 12, 1980 and denied rehearing on

April 30, 1980. Barefoot v. State, 596 S.W.2d 875 (Tex. Crim.

App. 1980). Barefoot was sentenced to die on September 17,

1980. The United States Supreme Court stayed execution and then

dissolved the stay when certiorari was denied on June 29, 1981,

453 U.S. 913. Barefoot was again sentenced to die on October 13,

1981. The state district court denied habeas, as did the Court

of Criminal Appeals. The federal district court then stayed the

execution on October 9, 1981. After an evidentiary hearing, that

federal court denied habeas corpus on November 11, 1982. The

State of Texas moved to vacate the stay of execution and the

court did vacate it on December 8, 1982. Because the district

court granted certificate of probable cause, the denial of habeas

is now on appeal in this court. Barefoot has now been

resentenced and is to die before sunrise on January 25, 1983.

Barefoot moves to stay execution of the sentence pending appeal.

ee ee

the jury answered affirmatively to these questions of

the Tex. Code of Crim. Ann. art. 37.071:

(1) whether the conduct of the defendant that caused the

death of the deceased was committed deliberately and with the

reasonable expectation that the death of the deceased or another

would result;

(2) whether there is a probability that the defendant would

commit criminal acts of violence that would constitute a

continuing threat to society.

Following the 1978 trial and conviction in Bell County,

the Bell County District Court has reviewed the conviction on

collateral attack, the Texas Court of Criminal Appeals has

reviewed the conviction four times (once on direct appeal and

three times on collateral attack), the Supreme Court of the

United States has reviewed it on application for certiorari, and

the federal district court has held an evidentiary hearing and --

after 14 months -- upheld the conviction.

1. The Nature of Our Decision :

This panel has studied the briefs and record filed

with us and has conducted a hearing on January 19, 1983, at which

the petitioner's attorney was allowed unlimited time to discuss

any matter germane to the decision before us.

That decision is a limited one. This court may

interfere with the action of the State of Texas only upon a

showing that the Constitution of the United States has been

violated. Upon the question of whether to stay execution until

the appeal has been processed, we consider the likelihood of

success of that appeal. Ruiz v. Estelle, 650 F.2d 555 (5th Cir.

1981). There should be a substantial case on the merits of

any serious legal question involved in the appeal to warrant

staying the decision below. Ruiz v. Estelle, 666 F.2d 854,

857 (Sth Cir. 1982). If after all these years of study, no

constitutional imperfections of substance can be found, it

becomes the duty of this court to deny the stay and refuse to

interfere with the authorities of the State of Texas as they

follow the laws of that state.

2. The Trial Court's Certificate of Probable Cause. —s —»-_—

We note that the district court's issuance of a

certificate of probable cause bears upon our consideration

here. In this circuit, "We have equated probable cause . .. to

a ‘substantial showing of the denial of [a] federal right.‘

Stewart v. Beto, 454 F.2d 268, 270 n.2 (Sth Cir. 1971), quoting

Harris v. Ellis, 204 ¥.2d 685, 686 (5th Cir. 1953). And if the

denial of a certificate by a district judge should be given

“weighty consideration” by a circuit judge, Nowakowski v.

Maroney, 386 U.S. 542, £43 (1967), then the granting of a

certificate should be entitled to similar treatment. However,

this does not relieve us of our duty under Fed. R. App. P. 8 to

decide the issue for ourselves. To give too much weight to the

Gistrict court's issuance of the certificate would be to give it

preclusive effect on our determination of the stay issue. Rule 8

clearly contemplates that it is the appellate court's

responsibility to decide the merits of the stay.”

2this preclusive effect is also inconsistent with the

district court's denial of the stay in the first instance. The

district court must have thought that appellant did not meet the

requirements of a stay. Yet, if we gave the C.P.C. preclusive

effect, then we would in effect be ——— that its issuance means

that the district court thought petitioner is entitled to a stay.

This court had the same question before it last month

in Brooks v. Estelle, __._=SsF.2d sj» «= The stay was denied by this

court and also by the Supreme.Court. 51 U.S.L.W. 3469 (U.S. Dec.

6, 1982). Justices Brennan, Marshall and Stevens dissented from

the. denial of the stay. They argued that once a certificate of

probable cause has been issued, the appellant “must then be

afforded an opportunity to address the merits." Garrison v.

Patterson, 391 U.S. 464, 466 (1968). See also Nowakowski v.

Maroney, 306 U.S. 542, 543 (1967). ("When a_district court

grants a certificate of probable cause the court of appeals must

* « « proceed to a disposition of the appeal in accord with its

ordinary procedure.") F

The simple response to this argument is that since six

members of the Court denied the petition for stay, this argument

must have been rejected. We respectfully suggest, however, that

court of appeals upon motion for a certificate of probable cause,

simultaneously granted the certificate and, without argument on

the merits or explanation of its reasons, affirmed the district

court. Nowakowski dealt with a denial of leave to proceed in

forme penperie cace the district court had granted a certificate

of probable cause. The Court's concern was the attempt by the

appellate court to circumvent the district court's power to grant

a habeas petitioner an appeal.

Neither of these cases addressed a situation in which

——

Nowakowski and Garrison are inapposite here. In Garrison, the

the party had an opportunity to brief and argue the merits of the

underlying issues, nor do they suggest that the stay procedure of

Rule 8 is somehow abrogated by the granting of a certificate of

probable cause. We think that this case is controlled by Carafas

v. LaVallee, 29 U.S. 234 (1968), more than Garrison and

Nowakowski. In Carafas, the Court, as in Nowakowski, reversed

the second circuit's denial of leave to proceed in forma

_—--

pauperis. The Court discussed Nowakowski and its

implications. The Court stated:

Nothing in the order entered by the Court of

Appeals, however, indicates that the appeal

was duly considered on its merits as

Nowakowski requires in cases where a

certificate of probable cause has been

granted. Although Nowakowski does not

necessarily require that the Court of Appeals

give the parties full opportunity to submit

briefs and argument in an appeal which,

despite the issuance of the certificate of

probable cause, is frivolous, enough must

appear to demonstrate the basis for the

court's summary acticn.

Id. at 242. Our actions here fall under this language.

Petitioner's motion is directed solely to the merits. The

parties have been also afforded an unlimited opporunity to make

their contentions upon the underlying merits by briefs and oral

argument. This opinion demonstrates the reasons for our

decision. We think, therefore, that the arguments put forth by

the dissenters in Brooks should not prevent us from denying this

stay if there is an indisputable absence of merit to the

petitioner's complaint.

__. 3. Merits of Appeal: Psychiatric Testimony on Dangerousness

The sole issue that petitioner raises on appeal

concerns testimony at the sentencing stage by two psychiatric

experts regarding appellant's future dangerousness. Neither of

these witnesses had interviewed petitioner, but testified on the

basis of hypothetical questions. Petitioner argues that the

admission of this testimony amounts to constitutional error.

The evidence before the federal district court supported

its conclusion that the accuracy of psychiatric predictions of

future dangerousness dramatically rises where there has been a

pattern of repetitive assaultive and violent conduct. The

majority of psychiatric experts accept that view. All of the

experts have testified that the conduct of the petitioner, to

which the assumed facts adhered in the hypothetical question

put to the psychiatrists at the original trial, was the conduct

of a severe sociopath. They disagreed over the degree of

certainty with which future conduct could be predicted, but this

only shows a difference of opinion among professionals - no

rarity to the courts or to citizens who serve as jurors. We

find no error of law or violaticn of the constitution in the

admission ‘nto evidence of those opinions, the proper predicate

having been laid.

Petitioner relies on Green v. Georgia, 442 U.S. 95

(1979), and Gardner v. Florida, 430 U.S. 349 (1977), for the __

proposition that the due process clause of the Fourteenth

Amendment and the cruel and unusual punishment clause of the

Eighth Amendment set limits upon the types of evidence that may

be presented at a sentencing hearing. He then argues that the

doctor's testimony is inherently unreliable. He asserts that thie

-7-

inaccuracy in predicting future dangerousness, particularly when

no interview has been conducted, requires that the testimony be

excluded. He also argues that since the hypotheticals did not

include the mitigating evidence, this increases the inaccuracy of

the testimony and permits the jury to avoid consideration of the

mitigating evidence by simply relying on the doctor's testimony

that the accused was a sociopath who would commit future acts of

violence.

In Gardner, the Court dealt with a death sentence in

which the trial judge rejected the jury's recommendation of a

life sentence on the basis of a confidential pre-sentence

investigation report which was not disclosed to the accused. The

opinions of the Court reflect a concern not for a specific

evidentiary rule? but for the nature of the adversary system and

the need for the accused and his counsel to be able to respond to

this evidence.

In Green, the state court excluded evidence thatthe

accused's codefendant had actually killed the victim. This

evidence consisted of a hearsay statement by the codefendant to a

friend. The Court reversed, stating:

Regardless of whether the proffered

testimony comes within Georgia's hearsay rule,

nder the facts of ois ase its exclusion _. a eng

constituted a violation o e Due Process

Clause of the Fourteenth Amendment. The

excluded testimony was highly relevant to a

critical issue, in the punishment phase of the

trial... (emphasis added)

442 U.S. at 97. We think that Green is limited to its facts, and

certainly did not federalize the law of evidence. It does,

however, indicate that certain egregious evidentiary errors may

be redressed by the due process clause.

We think, however, that the Supreme Court has, by

implication at least, approved of psychiatric testimony in cases

such as these. In Jurek v. Texas, 428 U.S. 262 (1976), the

Supreme Court rejected the argument that requiring the jury to

predict future behavior is so vague and uncertain as to be

meaningless. While the Court did not deal specifically with what

types of evidence the jury may hear, the Court stated that a jury

is equipped to make such a determination. The Court stated:

_____. "What is important is that the jury have all possible relevant

information about the individual defendant .. .". Psychiatric

testimony would clearly appear to be relevant to the jury's

determination. The fact that such testimony may not always be

totally accurate does not affect its relevance to the issue.

Further indication of the approval of psychiatric

testimony is contained in Estelle v. Smith, U.s. , 101

S.Ct. 1866 (1981). The Court dealt with whether the state could

use psychiatric testimony at the sentencing stage when the

testimony was based on an interview with the defendant and when

(1) defendant's counsel was not notified and (2) the defendant

was not warned of his right to remain silent. The Court held

that this did violate the defendant's rights. The Court,

however, went on to discuss the effect of its holding on the

state's ability to prove dangerousness. The Court states:

{U]nder the Texas capital sentencing

rocedure, the inquiry necessary for the

ury’s resolution of the future dangerousness

issue is in no sense confined to the province

of psychiatric experts. ...

U.S. at , 101 S.Ct. at 1878. The Court went on, saying

While in no sense disapproving the use of

on eam at testimony ees oy on the issue of

uture dangerousness, the holding in Jurek was

ided by recognition that the inquiry

contacted by Texas law does not require resort

to medical experts.

eRe REIN ee, ate a Re

aw Ss ee a. i)

_ ee on

Id. These statements indicate that expert testimony meets

constitutional requirements for admissibility.

Petitioner argues that the Court was addressing the

facts of Smith, where the psychiatrist had interviewed—the

Gefendant. But there is no indication in Smith that the

discussion regarding psychiatric testimony was limited to

testimony based on personal interviews. More importantly, we

think to reject such testimony would be inconsistent with Smith

and Jurek. In Smith the Court held that the state-could not-—

compel the defendant to submit to a psychiatric interview. Thus,

were we to hold that a psychiatrist (or other mental health

professional) could not testify on the basis of hypotheticals or

an examination of the defendant's record, we would be giving the

defendant the right to prevent any and all psychiatric testimony

on the issue of dangerousness except psychiatric testimony in his

own favor. We think this is inconsistent with the aim approved

in Jurek that “the jury have before it all relevant

information.® In addition, we note that if testimony by a mental

health professional, trained to detect mental illness and

personality types, is inherently unreliable on the issue of

future dangerousness, then would not testimony and a decision by

untutored lay persons on this issue be even more unreliable? The

Supreme Court thinks otherwise as was shown in Jurek and Smith in

holding that the jury could decide the issue and the inquiry

mandated by Texas law does not require resort to medical

experts." 101 8.Ct. at 1878.

4. Jucisdi n Fr eS oe

While the present appeal to this court was pending, the

state district court set petitioner's execution date. Petitioner

-argued to the state court, the Court of Criminal Appeals and now

before this court, that while this appeal is pending, the state

court has no jurisdiction to resentence. Alternatively, he

argues that if the state courts do have jurisdiction, then he is

being denied equal protection of the laws because the Texas

courts are closed to him.

‘These arguments have no merit. The first argument is

- actually a state law issue which we do not have the power to

address in a habeas proceeding. Petitioner's second argument is

based on Ex Parte Powers, 487 S.W.2d 101 (Tex. Crim. App. 1972),

Ex Parte Green, 548 S.W.2d 914 (Tex. Crim. App. 1977), and Ex

Parte McNeil, 588 S.W.2d 592 (Tex. Crim. App. 1979) (en banc).

These cases stand for the proposition that

-- A petitioner must decide which forum he

i will proceed in, because this Court will not,

and a trial court in this State should not,

the federal courts retain Surisdiction of the °

same matter.

Green, 548 S.W.2d at 916. We recently discussed this rule in

-depth, describing it as a rule of habeas abstention based on

comity. Carter v. Estelle, 677 F.2d 427 (Sth Cir. 1982). We do

not see how these cases have any application to this case. This

cule is one of judicial efficiency which merely prevents the

petitioner from litigating the same habeas issues in two forums

at the same time. Setting an execution date is clearly not. a

habeas suit. It is a collateral matter that is not part of the

-il-

habeas suit. Such a rule would allow petitioner to suspend his

sentencing whatever the lack of merit and entitlement to stay. .

We therefore reject this argument.

5. Newly Discovered Evidence: Mary Richards

Petitioner fortells grounds for another try at habeas

relief because of “newly discovered evidence.” Petitioner's

attorney interrogated Mary Richards under oath a few weeks

ago, without the presence of a representative of the state,

and her answers are said to conflict with her testimony for

the state at Barefoot's trial and to raise questions of

prosecutorial misconduct. We have before us the recent

statement of Richards as well as her trial testimony.

Richards lived in the area where the killing occurred.

She testified at the trial that she heard two shots that night

anc, when she looked out her window, she saw a man run by who

resembled Barefoot. She now says that it could not have been

Barefoot, because the hair and height and build of the two men

differed. She says that she has always told everyone who interrogate

her, including the investigator who worked for the attorneys

defending Barefoot, and everybody she knows, about the true

-@ppearance of the man she saw. She explains her testimony

at trial on the grounds that it was Barefoot's eye area that

resembled the man she had seen and, further, that her testimony

was false because an assistant district attorney and his

investigator frightened her by telling her Barefoot intended to

kill everyone in the office where she worked and that she should

just answer the questions “yes” or “no.”

It is difficult to accept this c. “rent statement of

Richards. No rational prosecutor would have called her as a

witness if she had told him what she now says she did. Her

testimony was not important, to begin with. Her testimony of

hearing two shots raised an inconsistency, because the other

evidence, including that of an eye witness to the shooting, was

that only one shot was fired. With the strong identification

of Barefoot by the other witnesses, to place Mary Richards on

the stand if she thought she had seen a different man, would

have only contributed another inconsistency. No attorney would

have thought she could survive non-leading direct testimony and

the cross-examination with only “yes” or "no." If she had

told “everybody” and the investigator for the defense of her

description of the man she saw, as she now says she did, that

would have been played to the hilt by the defense.

Nevertheless, the testimony of Mary Richards, one way

or the other, cannot and could not affect the determination of

Barefoot's guilt. His presence on the scene was clearly established,

as was his guilt. He admitted (actually, boasted of) his guilt

to his friends. The gun which fired the fatal shot was in his

pocket when he was arrested. He had told others in advance that

he planned to kill the Harker Heights policeman and that he was

to commit a robbery after creating a diversion by setting fire

to a building. A roommate testified that he dropped Barefoot

off near the Silver Spur, a nightclub, at 5:00 am. A Fort Hood

soldier saw a man, whom he identified at trial as Barefoot,

standing in the parking lot of the Silver Spur watching the

- 14-—

building burn. After reporting the fire, the soldier saw

Barefoot again near Amy Lane. He told the officer this, and the

officer drove his patrol car toward Amy Lane. Another soldier

saw that officer get out of his car at the intersection of Amy

Lane and Valley Road. A man wearing a white T-shirt and blue

jeans, as Barefoot was dressed, stepped out of the bushes,

walked to the officer and shot him in the head at point-blank

range, and fled down Valley Road. (Mary Richards lived on

Valley Road.)

Even if we were to assume for present purposes (and

we would do so for no other purpose), that the prosecutor

deliberately frightened Mary Richards to obtain her testimony

and then sat by without disclosing that her testimony conflicted

with her prior description, a reversal of the conviction would

not be justified for the reason that the omitted evidence

could not create a reasonable doubt of Barefoot’s guilt, and the

alleged prosecutorial conduct could not have an effect on the

trial. See Smith v. Phillips, __-iU.S.__—s_, 102 S.Ct. 940 (1982); ___

United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392 (1976).

This point has been raised and rejected by collateral

attack in the Texas courts. There would be no justification

for delay in order to have a further presentation in the federal

courts.

6. Conclusion

This Court has had the benefit of the full trial court

record except for a few exhibits unimportant to our considerations.

We have read the arguments and materials filed by the parties.

The petitioner is represented here, as he has been throughout

the habeas corpus proceedings in state and federal courts, by

‘@ competent attorney experienced in this area of the law. We

have heard full arguments in open court. Finding no patent

substantial merit, or semblance thereof, to petitioner's

constitutional objections, we must conclude and order that the

motion for stay should be DENIED.

-16-

No. 79-1127

W. J. ESTELLE, Jz., Director,

Texas Department of Corrections,

Petitioner,

v.

ERNEST BENJAMIN SMITE,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURLAE

AND BRIEF AMICUS CURIAE FOR THE

AMERICAN PSYCHIATRIC ASSOCIATION

Jomu L Eiem

Euaews J. Comer

Rocovin, Stzzw & Hucs

1780 Rhode Island Avenue, N.W.

Washington, D.C. 20086

(202) 466-6464

Counsel for Amicus Curiae

ee

Waseem - OFes Panrnme Ce. inc. - 788-0080 . wasmemeren. D.C. 2000!

il

i. THE USE OF PSYCHIATRIC TESTIMONY IN A

CAPITAL CASE ON THE ISSUB OF WHETHER A

DEFENDANT IS LIKELY TO COMMIT SERIOUS

CRIMES IN THB FUTURE IS CONSTITUTION-

ALLY INVALID BECAUSE IT UNDERMINES THE

RELIABILITY OF THE FACTFINDING PROCESS.

It is well recognized that the use of expert testimony

in state prosecutions is traditionally a matter of state

evidentiary law. See J. Wigmore, Treatise On Anglo-

American System Of Evidence In Trials At Common Law

§6e (8d ed. 1940). Nevertheless, this Court has made

clear that capital punishment cases are constitutionally

“different,” Gardner v. Florida, 430 U.S. 842, 367 (1977)

(plurality opinion), and that it is of “vital importance

to the defendant and to the community that any decision

to impose the death sentence be, and appear to be, based

on reason rather than caprice or emotion.” [d. at 358.

“(T]he penalty of death is qualitatively different from a

sentence of imprisonment, however long. ... Because of

that qualitative difference, there is a corresponding dif-

ference in the need for reliability in the determination

that death is the appropriate punishment in a specific

case.” Woodson v. North Carolina, 428 US. 280, 806

(1976) (plurality opinion). In amicus’ view the use of

axpert testimony on the issue of long-term future crimi-

nal behavior is inconsistent with these established prin-

ciples.*

* It should be made clear at the outset that amicus ‘is urg-

ing a limited prohibition aimed only at long-term predictions

of violence by psychiatrists. In Texas, the inquiry focuses

on the defendant's lifetime, not on a discrete time period

where psychiatric expertise might be more relevant. In civil

commitment cases, for example, as this Court recognized last

Term in Addington vy. Texas, 441 U.S. 418 (1979), paychia-

trists often can and do make reliable predictions about short-

gency Commitment of Dangerous Mentally IU Persons: A Re-

12

As the court below recognized, “Dr. Grigson’s testi-

mony was extremely damaging to the defendant.” 602

F.2d at 697. After detailing “his extensive [professional]

qualifications,” id., Dr. Grigson proceeded to testify as a

medical expert, using psychiatric nomenclature to de-

acribe Smith, and concluding that “certainly Mr. Smith

is going to go ahead and commit other similar or same

criminal acts if given the opportunity to do so.” Id. at

698. Faced with this seemingly expert medical testimony,

it is not surprising that the jury found that Smith was

likely to commit serious criminal acts in the future even

though he had no prior record of violent behavior.

As this Court has observed, “since the members of a jury

will have had little, if any, previous experience in sen-

tencing, they are unlikely to be skilled in dealing with

the information they are given.” Gregg v. Georgia, 428

U.S. 158, 192 (1976) (plurality opinion).

Increasingly, psychiatrists have been asked, both in

civil and criminal proceedings, to make a variety of long

and short term assessments of a person’s propensity to

commit violent acts in the future. As a result, amicus

has for many years been concerned with the question of

psychiatric predictions of future violent behavior. In the

early 1970's the American Psychiatric Association ap-

consideration, 186 Amer. J. Psychiatry 198 (1978). In such

situations the psychiatrist is able to evaluate the patient's cur-

rent mental condition and to discern likely behavioral pat-

terns, including potentiz! violent behavior in the near future,

if the Iliness remains untreated.

Similarly, amicus is not contending that psychiatrists

should be prohibited from testifying on all issues at the

penalty phase of a capital case. On the contrary, there are

many issues, such as the defendant's mental state at the time

of the crime or whether he acted under duress, that are well

within the expertise of psychiatrists.

18

pointed a Task Force comprised of distinguished psychi-

atric experts with experience in the field of criminal

behavior “to assemble the body of knowledge concerning

the individual violent patient and the clinical issues sur-

rounding his case.” American Psychiatric Association

Task Force on Clinical Aspects of the Violent Individual,

Clinical Aspects of the Violent Individual at v (1974)

(hereinafter “Task Force Report”). That Task Force

submitted a report, “aimed at the practicing clinician,”

to “describe the current state of the art and [to} pro-

vide{] an overview of selected literature and clinical

physical harm or destruction.” Id. at 1

The primary conclusion of this Task Force was that

judgments as to the long-run potential for future vio-

lence and the “dangerousness” of a given individual are

“fundamentally of very low reliability,” primarily be-

cause such judgments are predictions of rere or infre-

beha

past behavior clearly and repetitively evidences physical

of his her children. But, as the Task Force

, the relatively high degree of reliability in these

of knowing that the base rate of such

vior—that is, the rate of repetitive past violent acts

gh for the person under acrutiny.* Id. “It

i

:

juana. See Dix, The Death Penalty, “Dangerousness,” Psy-

chiatric Testimony, and Professional Ethics, 6 Am. J. Crim.

14

would not be necessary that the patient be ‘mentally ill’

or suffering from a psychiatric disorder in order to pre-

dict that such behavior will recur.” Id. Thus, to the

extent that a psychiatrist's prediction of “dangerousness”

is based solely on this knowledge of base rates of be-

havior, his prediction involves no more “expertise”—and

certainly no more “psychiatric expertise”—than dves

that of the average nonexpert.’

According to the Task Force, “the state of the art

regarding predictions of violence is very unsatisfactory.

The ability of psychiatrists or any other professionals to

reliably predict future violence is unproved.” Id. at 30.

“ *[D)}angerousness’ is neither a psychiatric nor a medical

Law 151, 164 (1977). In view of this fact, it is apparent

that Dr. Grigson’s testimony that Smith would commit future

harmful acts had no scientific basis whatsoever.

* One commentator has noted:

“In an experimental study .. ., college students and

psychiatrists agre =i extensively on the degree of ‘dan-

gerousness’ and ‘nondangerousness’ as indicated by vari-

ous personality characteristics. This suggests the poasi-

bility that psychiatric judgment is not based upon any

special knowledge or expertise beyond that of educated

laymen. There are also several studies indicating that the

diagnostic classifications made by psychologists aro not

more reliable or valid than those made by laymen.”

R. Kirkland Schwitzgebel, “Prediction of Dangerousness and

Its Implications For Treatment,” in W.J. Curran, A.L.

McGarry & C.S. Petty, Modern Legal Medicine; Psychiatry,

and Forensic Medicine 786 (1980) (footnotes omitted).

See A. Stone, Mental Health and Law: A System In Transi-

tion 83 (1976) (“There are. . . a group of patients in which

anyone could predict dangerous acts; ¢.g., drug addicts who

regularly support their habit by mugging, but that predic-

tion does not require a mental health professionai.”).

tablished and clinicians should avoid ‘conclusory’ judg-

ments in this regard.” Id. at 83.°

The professional literature on issue of predictions

the

of future criminal behavior was also reviewed and ana-

A

System In Transition 27-36 (1976). That study simi-

larly demonstrated that there are no reliable criteria for

psychiatric predictions of long-term future criminal

tally Abnormal Offender 17 (1968); Kozol, et al., The

Diagnosis And Treatment of Dangerousness, 18 Crime

and Delinquency 371, 883 (1972). These conclusions are

equally true today. Indeed, it has recently been noted that

“the professional! literature almost uniformly affirms low

predictive accuracy with regard to the dangerousness

mental patients.” R. Kirkland Schwitzgebel, “Prediction

of Dangerousnese and Its Implications for Treatment,”

in prediction—that

dangerous who are in fact not dangerous—has been attributed,

at least in part, to “the strong negative reaction of the public

in W.J. Cu A.L. McGarry, and CS. Petty, Modern

Legal Medicine, Psychiatry, and Forensic Medicine 784

(1980).°

here:

1978).

17

if ib Hi

> $ 33 :

Hie aati,

ital 43953 Tie

f¥isé

FILED

NOV 12 i962

PE SE aes ae CHARLES W. VAGNER, Clerk

WACO DIVISION By ON Deputy

IN THE UNITED STATES DISTRICT COURT

THOMAS BAREFOOT

Ve NO. W-81-CA-191

AMAA

W. J. ESTELLE, JR.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This case was tried on July 28, 1982, before the Court. After

hearing the testimony, exhibits and pleadings, and the arguments of

counsel, the Court enters the following Findings of Fact and Conclu~

sions of law:

FINDINGS OF FACT

1. This is a habeas corpus case brought by a state prisoner on

death row under 28 U.S.C. 2254. Respondent has custody of Petitioner

pursuant to a judgment and sentence of the 27th District Court of Bell

County, Texas. Petitioner was indicted for the offense of capital

murder. On November 14, 1978, Petitioner was tried before a jury

which found him guilty of capital mrder. The same jury answered two

special issue questions on punishment in the affirmative, thus

resulting in a sentence of death. Upon automatic appeal to the Texas

Court of Criminal Appeals, the conviction was affirmed on June 2,

1980. Barefoot v. State, 596 S.W.2d 875 (Tex.Crim.App. 1980).

Thereafter, Petitioner was sentenced to die by injection before

sunrise on September 17, 1980.

Agp.A

2. On July 29, 1980, a stay of execution was granted by the

Supreme Court of the United States pending the filing of a petition

for writ of certiorari. The petition was filed in Cause No. 80-5320

on August 27, 1980, and on June 29, 1981, the petition was denied and

the stay of execution was dissolved. On August 14, 1981, Petitioner

was again sentenced to death by the trial court which set his execu-

tion sometime before sunrise on October 13, 1981.

3. Petitioner then filed an application for writ of habeas cor-

pus in state court on September 29, 1981. This application was denied

by the Texas Court of Criminal Appeals on October 7, 1981. On October

9, 1981, in this cause under No. A-81-CA-422, Petitioner's execution

was stayed pending consideration of his application for writ of habeas

corpus. This Court conducted an evidentiary hearing in this cause on

July 28, 1982.

4. At the evidentiary hearing, Respondent was represented by

Assistant Attorney General Douglas M. Becker. Petitioner was repre-

sented by his appointed counsel, Will Gray.

5. There are virtually no disputed facts relating to the issues

raised by the parties in this case. The Pre-Trial Order signed by the s+

parties lists but one contested material issue of fact: whether

Petitioner's counsel at the time of trial understood Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770 (1968).

6. Essentially, Petitioner claims that one prospective juror,

Ruby Sanders, was excluded in violation of Witherspoon and that his

attorneys were ineffective for failing to object upon that basis. He

contends that his attorneys were further ineffective because of their

lack of understanding of Witherspoon generally and because they

allowed the voir dire to be conducted in such a manner as to deprive

Petitioner of due process of law. He contends that the entirety of

the voir dire examination produced a jury organized to return a death

penalty in violation of Witherspoon v. Illinois, supra. Petitioner

also complains of the use of hypothetical questions at the punishment

phase of his trial. Two psychiatrists, neither of whom had examined

Petitioner, testified on the basis of a lengthy hypothetical question

that, in their opinion, if Petitioner were not given the death

penalty, he would continue to commit future acts of violence that

would pose a danger to society. Finally, Petitioner complains that

Tex. Code Crim. Proc. Ann. Art. 37.071, is unconstitutional because

it contains no provisions for directing the jury's consideration of

mitigating cirucmstances.

7. Respondent denies each of these contentions. In addition,

he asserts that Petitioner's complaints about the trial court's treat-

ment of particulur venirepersons was waived for Petitioner's failure

to object at trial. Respondent further relies upon the presumption of

correctness of state court findings of fact regarding this issue under

Sumner v. Mata, 449 U.S. 559, 101 S.Ct. 764 (1981). Respondent also

relies upon the state court findings of fact with respect to the

quality of representation Petitioner received from his two appointed

counsel. With respect to the use of psychiatric testimony, Respondent

denies that such testimony is inherently unreliable and argues that

Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950 (1976), and Estelle v.

Smith, 451 U.S. , 101 S.Ct. 1866 (1981), specifically endorse such

testimony. Respondent also alleges that for his failure to make

proper objection at trial, Petitioner has procedurally defaulted this

ground under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497 (1977).

Finally, Respondent relies upon Jurek v. Texas, supra, for the propo-

sition that the Texas death penalty statute is constitutional.

8. The easiest issue will be dealt with first. The Texas capi-

tal sentencing procedure guides and focuses the jury's consideration

of mitigating circumstances. In Jurek v. Texas, 478 U.S. 262, 272-73, -

96 S.Ct. 2950, 2956-57 (1976), the United States Supreme Court held

that “...the Texas capital sentencing procedure guides and focuses

the jury's objective consideration of the particularized circumstances

of the individual offense and the individual offender before it can

impose a sentence of death.” Thus, even though the Texas capital sen-

tencing procedure does not explicitly mention mitigating circumstances,

the procedure in itself directs the jury's consideration to mitigating

circumstances,

The record reflects that the trial court instructed the jury on

puhishment as follows:

You are further instructed that in determining each of

these special issues you may take into consideration all

of the evidence submitted to you in the full trial of the

case, that is, all of the evidence submitted to you in the

trial of the first phase of this case, wherein you were

called upon to determine the guilt or innocence of the de-

fendant, and all of the evidence, if any, admitted before

you in the second phase of the trial, wherein you are

called upon to determine the special issues hereby sub-

mitted to you (emphasis added).

This instruction provided for the jury's consideration of both

mitigating and aggravating circumstances. The Texas Court of Criminal

Appeals has often held that defendants in death penalty cases are

ey eee

entitled to extremely wide latitude in submitting mitigating evidence

to the jury. The Texas procedures have been upheld many times, both in

the state and federai courts. Petitioner points to no evidence what-

soever that he was prevented from producing at the punishment phase of

trial. He makes no complaint that he was precluded from arguing that

the import of certain evidence was mitigating. In the absence of any

such allegations, his claim is without merit, and mst be denied. He

makes a general complaint that the trial court's charge ought to have

directed greater attention toward mitigating circumstances, but the

jury was instructed to take into consideration all of the evidence in

the trial. Moreover, Petitioner made no objection to the trial

court's charge ‘ie this basis at trial. Accordingly, any error was

waived. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497 (1977).

9. Petitioner also raises claims relating to the treatment of

44 venirepersons by the trial court and the conduct of his trial coun-

sel in that regard. The complaint that Petitioner's appointed coun-

sel, Gerald Brown and Stephen Blythe, were incompetent and did not

understand Witherspoon is frivolous. Both attorneys testified before

this Court at the evidentiary hearing in this cause. Each attorney is

highly knowledgeable in criminal law. Mr. Brown is a Board Certified

Specialist in the State of Texas in Criminal Law. Each attorney

testified in depth that before voir dire examination began, and after

consultation with a psychologist, a profile was constructed of the

ideal juror from Petitioner BAREFOOT's point of view, relying

particularly upon Brown's and Blythe's knowledge of local circumstan-

ces and conditions. A coherent plan for the use of peremptory

challenges was devised. The plan was modified in accordance with

Petitioner BAREFOOT's animosity towards black and brown persons.

There was a feeling that possibly Petitioner's animosity toward these

persons might be communicated - them if they were selected for the

jury. No person was rejected for services of juror by Petitioner's

attorneys solely because he was black or brown, as they testified, but

it was one additional factor in the equation. It was the Petitioner's

request his attorneys consider this factor in that equation.

10. During voir dire examination, the attorneys consulted fre-

quently and at length with their client. Decisions as to each

prospective juror were reached mutually and after mich discussion.

Petitioner has complained that his attorneys failed to object to the

exclusion of a great number of jurors who were pon necessarily dis-

qualified under Witherspoon. Since Brown and Blythe had retained

their jury notes from trial, they refreshed their memory to some

extent and were able to testify at the evidentiary hearing in detail

as to the specific reasons, based upon trial strategy, as to why no

objections were made to the exclusion of every single prospective

juror about whom Petitioner had complained. Because a decision not to

7 object to the exclusion of a juror was in every instance based upon

reasonable strategy, Petitioner's asserted ground for relief must be

rejected for that reason alone. The attorneys’ strategy in iets

instance appears to this Court to have been a tactical santas based

upon the attorneys’ individualized knowledge of local conditions and

circumstances and in conformance with the previously constructed juror

profile.

11. Petitioner complains that venireperson Ruby Sanders was

— 7

qualified for jury service under Witherspoon and should not have been

excluded. The following question and answer during voir dire examina-

tion indicate that Petitioner's allegation is without merit.

"Q. And that's why we're asking you ali these questions,

Mrs. Sanders. Do you feel then that no matter what

facts in any case might show that you, if you are

on the jury, if someone forced you to be on a jury,

that you could never vote in a case that would assess

the death penalty on somebody because of what you be-

lieve and what you have already told me?

“A. Yes, sir, that's right. I don't think that I can

feel right even if I was on the jury and convicted

an individual, I don’t think that my conscience

would allow me to continue to live on knowing that

I am sentimental and believe in capital punishment

or death or into this world.” (emphasis added)

Since Mrs. Sanders testified she could never vote to assess a death

penalty in any case, she was disqualified for jury service under

Witherspoon. Moreover, the failure of Petitioner's counsel to object

waived any error. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497

(1977); Spinkellink v. Wainwright, 578 F.2d 582 (Sth Cir. 1978). The

state court's finding on this matter is presumptively correct. Sumner

v. Mata, 449 U.S. 559, 101 S.Ct. 764 (1981). At the evidentiary

hearing in this cause, Petitioner's attorneys explained that even

though they did not believe that Sanders was qualified for jury ser-

vice under Witherspoon, there were additional, independent tactical

reasons why they did not wish her to be on Petitioner's jury, even if

she might have been rehabilitated. For these reasons, Petitioner does

not satisfy the good cause exception of Wainwright v. Sykes. See

also: Engle v. Isaac, Slip Op. No. 80-1430 (U.S., April 5, 1982).

12. Petitioner's allegation that the entire jury voir dire was

fundamentally unfair and was organized to select a jury that would

-7-

return the death verdict in violation of Witherspoon is without merit.

Respondent's Answer catalogs the venirepersons of whom Petitioner has

complained. Of the 44 venirepersonr of whom Petitioner complains, 28

were dismissed without objection. In five cases, Petitioner's motion

to disqualify a juror was overruled. In eleven other cases,

Petitioner does not object to the exclusion of a juror or the trial

court's overruling his motion to exclude a juror, but objects instead

to statements the prosecutor made without objection to such prospec—

tive jurors.

13. Regarding the first group of 28 jurors, many were excused

for entirely innocuous reasons, such as an ill spouse or a job impor-

tant to the welfare of the community, such as teaching public school,

and often before any opinion as to the death penalty had been

expressed. In most of these cases, defense counsel affirmatively

agreed to the exclusion of such jurors and no objection was made to the

exclusion of any of them. At the evidentiary hearing in this Court,

Petitioner's trial attorneys were able to explain why they and

Petitioner mtually agreed that they did not desire each of these

jurors to be selected. No error {s shown.

14, Next, Petitioner's motions to exclude five jurors, Korpiva,

Baker, Walker, Latsha, and Smith, were rejected by the trial court.

The Texas Court of Criminal Appeals dealt at length with Petitioner's

motions to exclude Korpiva, Latsha, and Smith. Barefoot v. Smith, 596

$.W.2d 875, 881-86 (Tex.Crim.App. 1980) (en banc). None was subject

to dismissal for reasons set forth therein. Moreover, this finding by

the highest Texas appellate court of criminal jurisdiction is presump-

tively correct. Sumner v. Mata, supra.

15. Petitioner's objection to venireperson Baker was that he

could not be fair because of overexposure to publicity concerning the

case. In light of his unequivocal staceubnt that he could be fair and

impartial, Petitioner's motion to exclude him was meritless.

Petitioner's objection to venireperson Walker was similarly without

merit. Petitioner's complaint that Walker showed himself to be

“patently committed to the death penalty” must be rejected in view of

the lengthy rehabilitation by the prosecutor. Moreover, it does not

appear that Petitioner ever renewed his objection following that

rehabilitation; accordingly, it was procedurally defaulted.

Wainwright v. Sykes, supra.

16. Additionally, Petitioner complains that the prosecutor

misinformed 11 jurors as to the law. He has been unable, however, to

specify any misstatements of law in the record. It appears that the

prosecutor merely steeeaata the applicable law generally to such

venirepersons. In the event any incidental misstatement of law was

made, it does not approach the level of denial of due process of law.

Moreover, Petitioner's attorneys did not object to any of such state-

ments. Accordingly, Petitioner is procedurally defauited under

Wainwright v. Sykes, supra, from complaining about them now.

Petitioner's attorneys also explained at the evidentiary hearing

that, regarding an incidental misstatement, it is possible they might

not have objected for one of several reasons. First, as a matter of

strategy, they might have been interested in the juror'’s response to a

particular question and felt that the question was not unduly prejudi-

cial. Second, the prosecutor might have misstated the law in a matter

not prejudicial to Petitioner or, at most, neutral as to him.

Attorneys are expected to exercise their professional judgment in

choosing the proper time and subject to raise their objections.

17. Petitioner also complains about hypothetical questions

posed to psychiatrists at the punishment phase of his trial. Upon

careful reflection, this ground is without merit. In Jurek v. Texas,

428 U.S. 262, 96 S.Ct. 2950 (1976), and Estelle v. Smith, 451 U.S.

101 S.Ct. 1866 (1981), the Supreme Court of the United States specif-

ically upheld the predictive nature of the Texas capital punishment

sentencing process, and further, specifically upheld the use of

psychiatric testimony on the issue of future dangerousness as a matter

that may be considered by the jury. The holding of those cases is

that, although psychiatric testimony is valuable in assisting the jury

in its consideration of future dangerousness, the Texas procedures

quite properly are not limited to expert psychiatric testimony, but

are also amenable to testimony by laypersons. In Jurek, supra, at

275-76, the Court stated:

“(P]rediction of future criminal conduct is an essential

element in many of the decisions rendered throughout our

criminal justice system.+ The decision whether to admit

a defendant to bail, for instance, must often turn on a

judge's prediction of the defendant's future conduct. And

any sentencing authority must predict a convicted person's

probable future conduct when it engages in the process of

determining what punishment to impose. For those sentenced

to prison, those same predictions mst be made by parole

authorities. The task that a Texas jury must perform in

answering the statutory question in issue is thus basically

no different from the task performed countless times each

day throughout the American system of criminal justice. “

(footnotes omitted)

Additionally, in Smith v. Estelle, supra, at 1878, the Supreme Court

- 10 -

stated, “While in no sense disapproving the use of psychiatric testi-

mony bearing on the issue of future dangerousness, the holding in

Jurek was guided by recognition that the inquiry mandated by Texas law

does not require resort to medical experts.”

18. The majority of psychiatric experts agree that where there

is a pattern of repetitive assaultive and violent conduct, the

accuracy of psychiatric predictions of future dangerousness dramati-

cally rises.! The accuracy of this conclusion is reaffirmed by the

expert medical testimony in this case at the evidentiary hearing. Dr.

George Parker, a psychologist, testified for Respondent that pro-

fessional literature indicates that predicting future dangerousness

among random mental patients or even felons generally is not terribly

accurate. The prediction of future dangerousness, however, becomes

easier as the pattern and history of violence becomes more repetiti-

vely persuasive. Petitioner was diagnosed at trial as a sociopath,

anti-social type, severe. Indeed, based upon the facts stated in the

hypothetical question posed by the prosecutor at trial, all medical

experts at the evidentiary hearing agreed with this diagnosis. Dr.

Fred Fason, a psychiatrist who testified on behalf of Petitioner,

testified that he was 90% sure that Petitioner was a severe anti-

social sociopath who would commit future acts of violence dangerous to

society. Dr. Wendell Dickerson, a psychologist, testified that he was

almost 90% sure of the same decision. Dr. Richard Koons and Dr.

Parker testified that they were extremely sure of the same conclusion.

l. See: Amicus curiae brief of American Psychiatric Association in

Estelle v. Smith, supra.

- {1 <

19. It would appear that Petitioner's complaint is not the

diagnosis and prediction made by Drs. Holbrook and Grigson at the

punishment phase of his trial, but that Dr. Grigson expressed extreme

certainty in his diagnosis and prediction. Petitioner's experts have

testified that such certainty is unsupportable in the medical pro-

fession. Moreover, Respondent's experts testified that they them-

selves could not be 100% sure in their diagnosis and prediction

regarding Petitioner, but that they would be very close to completely

certain.

20. In any event, the differences among the experts were quan-

titative, not qualitative. The differences in opinion go to the

weight and not the admissibility of such testimony. The Court is

unaware of any theory upon which the writ of habeas corpus may be

granted or Petitioner's death penalty invalidated simply because an

expert testified that he was competely certain rather than almost

completely certain of a particular conclusion. Petitioner was not

hampered in his cross~examination of the psychiatrists at trial. He

was not precluded from presenting before the jury the identical testi-

mony that he presented in the evidebtiary fearing in this cause. Such

disputes are within the province of the jury to resolve. Indeed, it

is a fundamental premise of our entire system of criminal jurispru-

dence that the purpose of the jury is to sort out the true testimony

from the false, the important matters from the unimportant matters,

and, when called upon to do so, to give greater credence to one

party's expert witnesses than another's. Such matters occur routinely

in the American judicial system, both civil and criminal. If the

-12-

state psychiatrists at trial erred in being overconfident as to their

diagnosis of Petitioner, then Petitioner should have presented im-

peaching evidence or rebuttal testimony. Petitioner is not entitled

to relief on this ground of asserted error.

ONCLUSION OF LAW

1. The Petitioner is not in custody, or sentenced, in viola-

tion of the Constitution or laws or treaties of the United States.

The Court will entei judgment in accordance with these find-

ings. m

SIGNED and ENTERED this — f day of November, 1982.

inate 4

J retves D. BUNTON

Jrntves States District Judge

~ 19 =

FILED

NOV 12 1982

CHARLES W. VAGNER, Clerk

WACO DIVISION By IW Deputy

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

THOMAS BAREFOOT

Ve NO. W-81-CA-191

ANA am

W. J. ESTELLE, JR.

JUDGMENT

In accordance with this Court's Findings of Fact and Conclusions

of Law heretofore entered,

IT IS ORDERED, ADJUDGED and DECREED that Petitioner take

nothing in this action and that Judgment be entered for Respondent

herein.

SIGNED and ENTERED this G day of November, 1982.

LUCIUS D. BUNTON

United States District Judge

Ser,

a | Sipe

BAREFOOT v. STATE

Cite as, Tex.Cr.App., 596 $.W.2d $75

APPEN DIX—Continued

can identify him or not, dcesn’t make any

difference if he is fat, thin, tall, skinny or

otherwise, if he can’t identify him he can’t

and if he can, he can. That is the whole

thing.

MR. DE LEON: Ask Mr. Keilmann if he

was pointing at someone.

INTERPRETER: Were you pointing at

someone, Mr. Keilmann?

MR. DE LEON: Just now.

INTERPRETER: Did you point to some-

One just now? He says, no.

MR. DE LEON: Ask him if the the [sic]

man that he is pointing at is the man who

pulled him out of the truck.

INTERPRETER: The man that you

were pointing at, is that the man that

pulled you out of the truck? The man that

you just pointed at, is that the man that

pulled you out of the truck? The man that

you pointed at, is that the man that pulled

you out of the truck? Yes.

MR. DE LEON: Ask him if it is the same

man that you saw at the Finney Ranch?

INTERPRETER: Is that the same man

you saw at the Finney’s Ranch? He indi-

cated, yes.

(WITNESS POINTING.)

MR. DE LEON: The man that he is

pointing at, is that the one that he saw at

the Finney Ranch?

INTERPRETER: The man that you

were pointing at, is that the man you saw

at the Finney’s Ranch? He indicated, yes.

MR. DE LEON: Ask him if he is sure

about it.

INTERPRETER: Are you sure Mr. Keil-

mann? He indicated, yes.

MR. DE LEON: Pass the witness, Your

Honor.

CROSS EXAMINATION

MR. SCHARMEN: Mr. Keilmann is this

the man you saw at the Finney Ranch?

INTERPRETER:

He indicated, no.

MR. SCHARMEN:

sWer?

What was the an-

_ Best Copy Available

Tex. 875

INTERPRETER: No.

MR. SCHARMEN: Would you point to

the man who you saw at the Finney Ranch?

INTERPRETER: You want me to tell

him?

THE COURT: Tell him.

INTERPRETER: Point to the man you

saw at the Finney Ranch. Point to the man

you saw at the Finney Ranch. Point. Mr.

Keilmann, can you point to the man that

you saw at the Finney’s Ranch? Which

man?

MR. SCHARMEN: Let the record reflect

that the witness pointed at this man stand-

ing to my right in the red jacket.

Let the record reflect the man pointed

again to my left at the defendant.

THE COURT: I can’t tell from my angie

which way he is pointing, Counsel.

MR. DE LEON: Your Honor, the last

time he pointed he pointed at the defend-

ant. :

MR. SCHARMEN: The first time he

pointed at the man in the red jacket, Your

Honor.

THE COURT: I am going to overrule

both your objections. Let’s proceed. Do

you have any other questions you want to

ask him? [sic]

Thomas A. BAREFOOT aka Darren

Callier, Appellant,

v.

The STATE of Texas, Appellee.

No. 63715.

Court of Criminal Appeals of Texas,

En Banc.

March 12, 1986,

_ Rehezring Denied April 20, 1980.

Defendant was convicted in the 27th

Judicial District Court, Bell Count,, Wii-

hee 8

Digest

Po merregmerryncer eee PPT a

ae)

aac ner ae tart

a ai <).snx . endicaaiiedienen: Shaina aaa

sg ‘

poe9

. S76 Tex. 596 SOUTH WESTERN REPORTER, 2d SERIES .

lieve trial court of necessity of giving cir-

cumstantial evidence charge.

Nam C. Black, Special Judge, for capital

murder, and sentenced to death, and he

waled. The Court of Criminal Appeals,

Dally, J., held that: (1) trial court did not 3+ Criminal Law <=£14(17)

err in refusing to charge on !aw of circum- Even if admission or confession is

‘intial evidence; (2) t rial court did not equivocal, circumstantial evidence charge is

sin ise its discretion in overruling motion for not necessary if other evidence, together

change of venue; (3) trial court did noterr WwW ith confession, conclusively establishes

by overruling challenges for cause to three that killing confessed is killing for which

. venire members; (4) trial court did not defendant is on trial.

- 3? abuse its discretion in denying defendant's eh ERT

3 F request for three additional peremptory 4. Criminal Law e814(17)

“t =F challenges; (5) trial court did not err in In prosecution for capital murder, trial

4 t admitting evidence of extraneous offenses court did not err in refusing to charge on -

ae, for limited purpose of showing motive; (6) law of circumstantial evidence where de-

ai trial cuurt was not required to define “prob- fendant admitted to killing a police officer,

2; ability” in its charge to jury at punishment victim was only peace officer killed that

' ne stage; (7) trial court did not err by permit- day, defendant described shooting in man-

"fan ting psychiatrists to testify, on basis of hy- ner consistent with murder and other evi-

.: a: pothetical question, as to probability de- dence conclusively established that killing

2 &: fendant would commit acts of violence in confessed was killing for which defendant

<. the future; (8) statute governing procedure Was on trial.

at punishment stage In capal cases is not 5. Criminal Law ¢>121

unconstitutional; (9) evidence was more

than adequate to support death sentence; In prosecution for capital murder of

(10) evidence was sufficient to support con- police officer, even though evidence raised

viction; (11) trial court did not abuse its ‘fact issues of whether defendant could ob-

discretion in overruling defendant’s motion tain fair and impartial trial in county, there

to sequester jury during trial. was no evidence that defendant did not

Deas: ‘ receive fair trial by impartial jury free

att wih Affirmed from outside influence and trial court did

+ % Roberts, J., concurred in result. not abuse its discretion in overruling motion

at Clinton, J., dissented in part and filed for change of venue.

GRE 5 statement in which Phillips, J., joined. 6. Criminal Law ¢=>1035(5)

Defendant properly preserved alleged

errors in overruling challenges for cause to

1. Criminal Law <=814(17) three venire members and in failing to

If accused admits or confesses killing of grant his request for additional peremptory

deceased, proof of admission or confession is_ challenges by his being forced to accept

3 direct evidence of main inculpatory fact and objectionable juror after his challenge for

: charge on circumstantial evidence is not cause to venire member and his request for

gett te required. additional peremptory challenges were

Bie overruled.

2. Criminal Law <=814(17)

If admission or confession is equivocal

as to killing of deceased, or if it is not clear

that killing admitted or confessed is killing

with which defendant is accused, proof of

admission or confession alone will not re-

Best Copy. Available

;

v

Pa’: os we

>

7. Jury 105(2)

Trial court did not err in overruling

defendant's challenge for cause against ve-

nire member who was initially confused as

to relationship between defendant’s right to

al

’

>

—

Tere)

O78

ner sap Ware Ae

tn entiation’ cite Pi Re ele ee me one ee OE

BAREFOOT v. STATE Tex.. 877

Cite as, Tex.Cr.App., $96 S.W.2d 875

remain silent and his right to effective as-

sistance of counsel, where subsequent ques-

tioning by prosecuting attorney and defense

counsel made it clear that venire member

did not expect defendant to testify or

present other evidence but only that his

attorneys would do their best on his behalf.

8. Jury 108

Trial court did not err by overruling

challenge for cause against venire member

who initially believed that death was only

proper punishment for capital murder

where, after punishment alternatives and

procedures were better explained, venire

member clearly stated he would affirma-

tively answer punishment issues only if

State met its burden of proof and that he

believed death to be proper punishment

only if answers to issues were yes.

9. Jury —103(1)

In prosecution for capital murder, trial

court did not err by overruling challenge

for cause based on venire member’s alleged

opinion as to defendant’s guilt, where voir

dire failed to show that venire member

would be influenced as juror by any opinion

or prejudice or by anything he may have

heard or read about case.

10. Jury 108

In prosecution for capital murder, trial

court did not err in overruling defendant's

challenge for cause based on venire mem-

ber’s alleged bias against minimum punish-

ment for murder where venire member

stated that he could consider minimum pun-

ishment in « proper cuse. Vernon’s Ann.C.

C.P. art. 35.1%), par. 2.

Ik. Jury = 156(4)

In prosecution for capital murder, trial

court did not abuse its discretion in denying

defendant's rejiest for three additional

- . . 5 ’

peremptory ona:

enges where each of those

three venice members whom defendant pro-

posed to challenge were not excludable for

cause.

12. Criminal Law 2=259.1

Genersiiy, accuse! is entitled to be

tried on accusitiv: rude in state's pleadlin

and not for some collateral crime or for

being criminal generally.

13. Criminal Law =371(12)

Evidence showing motive is admissible

even though it shows commission of extra-

neous offense.

14. Criminal Law <=371(12)

In prosecution for capital murder of

police officer who stopped defendant for

questioning in arson investigation, trial

court did not err in admitting evidence of

extraneous offense involving criminal sexu-

al penetration of a minor for limited pur-

pose of showing murder was motivated by

desire to avoid facing those charges.

15. Criminal Law c>800(2)

At punishment stage of prosecution for

capital murder, trial court is not required to

define “probability” in its charge to jury

concerning probability that defendant

would commit acts of violence in future.

Vernon’s Ann.C.C.P. art. 37.071.

16. Homicide 354

Trial court may admit for whatever

value it may have to jury psychiatric testi-

mony concerning defendant's future behav-

ior at punishment stage of capital murder

trial. Vernon’s Ann.C.C.P. art. 37.071.

17. Homicide 354

At punishment stagé of prosecution for

capital murder, trial court did not err by

permitting two psychiatrists to testify, on

basis of hypothetical question, as to proba-

bility that defendant would commit acts of

violence in future. Vernon’s Ann.C.C.P.

art. 37.071.

13. Criminal Law & 155(1)

pert must be based on facts of case, counse

may assume facts in accortance with his

theory of case; if opponer

cure expert’s opinion upon

facts he may do» so on ¢cross-exuisation.

Vernon's Ann.C.L.P.:- art.-37.021.

t desires to se-

tifferent set of

Digest

SOOPER teehee

* ;

PT ET Tr Pe as EE

ER Fooer ET NEES HON THR oe

PO SREP eT eT

oe

ee oe

19. Criminal Law 469

Expert witnesses may be permitted to

press oF

violent behavior s .

ince terms “probability,”

criminal acts of vicience,” and “ EF Ege:

threats to society” are not terms defined by

statute or case law ‘ut are words of ordi-

nary meaning. Verson’s Ann.C.C.P

37.071.

20. Criminal Law <1206(1)

Statute governing procedure during

punishment stage in capital case is not un-

s 53 constitutional, despite claim that its use of

-3 3} term “probability” is vague. Vernon’s Ann.

aed) C.C.P. art. 37.071.

5 of

SH 21. Homicide e=354

4 In prosecution for capital murder, evi-

to dence adduced at punishment stage of trial,

AN: as to defendant’s bad reputation for being

Soa peaceful and law-abiding citizen and his

i prior convictions, along with evidence ad-

< duced at guilt-innocence stage, was more

than adequate to support death sentence.

Vernon’s Ann.C.C.P. art. 37.071.

22. Homicide 250

Evidence was sufficient to support con-

viction for capital murder.

*¢ 23. Criminal Law @=854(2)

Whether to grant motion to sequester

; jury during trial is within discretion of trial

court.

te 24. Criminal Law <854(2)

tie In prosecution for capital murder, trial

judge did not abuse his discretion in over-

ruling defendant’s motion to sequester jury

during trial.

ec rye Ft

Stephen E. Blythe,

Temple, for appellant.

Arthur C. Eads, Dist. Atty., Ralph Petty,

Jr., James T. Russell and Steven C. Copen-

haver, Asst. Dist. Attys., Belton, Robert

Huttash, State’s Atty., Austin, for the

State.

Gerald M. Brown,

a

8

:

ae

“ ¥

<=

bed

-

ots

3

*

2

ad

w * Ty

Prog

Pad

res

inion as to probability of future

OPINION

DALLY, Judge.

This is an .ppeal from a conviction:

cupital murder. The punishment is deze

Appellant contends that the trial co

erred by failing to instruct the jury at

guilt-innocence stage of the trial on the :

of circumstantial evidence, denying his mr

tion for change of venue, overruling }

challenges for cause of three prospecti

jurors, refusing his request for additior

peremptory challenges, admitting eviden

of extraneous offenses, failing to defi:

“oruLability” in the charge at the punis!

ment stage, and overruling his objections 1

the testimony of two witnesses as to tt

probability he would commit acts of vic

lence in the future. Appellant also con

tends that Art. 37.071, V.A.C.C.P., is uncor.

stitutionally vague.

Appellant was convicted for the murde:

of Harker Heights police officer Carl Levin

The appellant fatally shot Levin after the

officer stopped him for questioning in an

arson investigation. Although appellant

does not contest the sufficiency of the evi-

dence, a detailed review of the testimony is

required in order to discuss his contention

that the circumstantial evidence charge

should have been submitted to the jury.

Appellant and four other persons were

living in a trailer in Killeen during the

summer of 1978. One of the appellant’s

roommates, Donnie Ray Tiller, testified

that appellant had asked him for a gun and

stated that he intended to kill a Harker

Heights policeman who had allegedly mis-

treated him during an arrest for public

intoxication. Appellant also told Tiller of

his plans to commit various robberies in

Harker Heights.

On August 6, 1978, appellant told Tiller

that he was going to commit a robbery the

next morning at the Oasis Club in Harker

Heights after creating a diversion by bomb-

BAREFOOT v. STATE Tex. 879

Cite as, Tex.Cr.App., 596 S.W.2d 875

ing or setting fire to a building. Appellant

stated to Tiller that he would kill anybody

_ who recognized him as the robber. Appel-

lant was wearing a white T-shirt and blue

jeans at the time of this conversation.

Another roommate, Robert Roberson, tes-

tified that appellant awakened him at ap-

proximately 4:30 a. m. on October 7 and

asked him for a ride to Harker Heights.

Appellant was wearing a white T-shirt and

blue jeans, and was armed with a .25 caliber

automatic pistol and a home-made bomb.

On the way to Harker Heights, appellant

told Roberson he was going to blow up the

Silver Spur, a night club. After first

stopping at a convenience store where ap-

pellant filled an empty plastic milk jug with

gasoline, Roberson dropped appellant off

near the Silver Spur at about 5:00 a. m. and

returned to the trailer.

John Edwards, a soldier at Fort Hood,

drove past the Silver Spur at 5:15 a.m. He

saw flames coming from the roof and a

man he identified as appellant standing in

the parking lot. As Edwards watched, ap-

pellant began to run along Highway 190.

Edwards drove to the police station, which

was nearby, to report the fire and then

returned to the Silver Spur. On his way

back to the fire, Edwards saw appellant

near the intersection of Highway 190 and

Amy Lane.

Back at the fire, Edwards saw a fireman

remove a melted plastic jug from the roof

of the building. He then told Officer Levin

what he had seen. Levin, who was in uni-

form and driving a marked pxtrol car, left

the scene of the fire and drove toward Amy

Lane.

Michael Thrash, another Fort Hood sol-

dier, lived on Amy Lane. He was walking

to work at 5:35 a. m. when he saw a patrol

car parked at the intersection of Amy Lane

and Valley Road with its emergency lights

on and its spotlight trained on some bushes.

Officer Levin was standing beside the pa-

trol car. A man wearing a white T-shirt

and biue jeans stepped out of the bushes

and walked toward the officer. The man

then shot Levin in the head at point-blank

range and fled down Valley Road.

Mary Richards, who lived on Valley Road,

heard the shot and looking through a win-

dow, she saw a man wearing a white T-shirt

running dows Valley Road from Amy Lane.

Richards could not positively identify appel-

lant, but testified he resembled the man she

saw.

Appellant called Tiller at approximately

10:30 a. m. on the morning of the shooting.

Tiller described the conversation as follows:

“I answered the phone. He said, Don-

nie, I said, yes. He said this is Darren.

He says have you been listening to the

news? And I said, yes, Darren, did you

do that? He said, Yeah, I shot him. I

killed the mother fucker. I shot him in

the head.”

Tiller testified that this conversation was in

reference to the August 7 shooting of the

Harker Heights policeman. After appel-

lant hung up, Tiller contacted the police.

Appellant returned to the trailer after

the shooting and spoke to Roberson. Ro-

berson testified that appellant was still

dressed in a white T-shirt and blue jeans,

had red blotches which appeared to be blood

on his face and shirt, and appeared to be in

a state of panic. After Roberson told him

that the police had been to the trailer look-

ing for him, appellant said that “he had to

get out of town because he wasted a cop,

that he killed a cop.” Asked by Roberson

how he had done it, appellant reached for

his back pocket and then pointed his finger

at Roberson’s head at the place correspund-

ing to the bullet wound to the head of the

deceused. After washing up and changing

clothes, appellant left the trailer.

Francisco Hernandez testified that he

met appellant in downtown Kilieen on the

morning of August 7. He invited appeliant

to his home for lunch and subsequently

offered to let him spend the night. The

next morning, after hearing a radio news

report describing the suspect in the Levin

mur'zr, appellant told He-nandez that “I

=

pee Leger

ie pb Raa I

Digest

3

Bs

:

.

tr

2

f

i

2 ‘eed

OQ ee ee!

ab -fiitye. 5 ~~

a

ee

«*

‘

CAy Tex. $36 SUC!

am the one that they're looking for but I

didn’t kill no policeman,”

Anpellant subsequently made his way to

Seton, where he boarded a bus for Kous-

ton. Police xcting on information from

Hernandez arrested appellant at the bus

station in Houston at approximately 11:30

p. m. August 8. A .25 caliber automatic

pistol that ballistics tests proved fired the

bullet that killed Levin was in appellant’s

i REsSORLER, 2d SERIES

head” was in reference to the shooting of

the Harker Heights policeman on August 7.

fficer Levin, who was shot in the head,

was the only peace officer in Bell County

killed that dey. Appellant told Roberson

that he “killed a cop” and described the

shooting in a manner consistent with the

murder of Levin. Appellant was seen in

the area a few minutes prior to the shooting

wearing a white T-shirt and blue jeans, the

witness to the shooting testified that the

: pocket at the time of his arrest. :

*3 3} David Kingsley was acting Chief of Po- saeetlant was dressed in that fashion, and

te 3) ‘ . ‘ Roberson testified that appellant was so

3 o: lice for Harker Heights at the time of the ibid hak he seturaad tothe tall

eis charged offense. He testified that Officer ey bby: alla shgacet Chesed

‘ ba? ‘ A 2 splattered with blood. These facts, togeth-

a Levin was the only peace officer killed in : 3 ¥

is Bell County on August 7, 1978. er with the other evidence discussed above,

5 abe ; leave no reasonzble doubt that the killing

sh ge: [1-3] If the accused admits or confesses dmitted by appellant was that of Officer

Levin. Therefore, the admissions are direct

evidence of the main inculpatory fact and

the trial court did not err in refusing to

wi

a. killing the deceased, proof of the admission

or confession is direct evidence of the main

inculpatory fact and a charge on circum-

“A+

meters

stantial evidence is not required. Sloan v.

State, 515 S.W.2d 913 (Tex.Cr.App.1974);

Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.

1974); Swift v. State, 509 S.W.2d 586 (Tex.

charge on the law of circumstantial evi-

dence. See and compare Ridyolph v. State,

supra; Casey v. State, 523 S.W.2d 658 (Tex.

Cr.App.1975); Hielscher v. State, supra;

ies Cr.App.1974). However, if the admission or Hagan v. State, supra; Steel v. State, su-

Bt “s confession is equivocal as to the killing of pra; Patterson v. State, supra.

ae 3 a the deceased, or if it is not clear that the Appellant contends that the trial court

Scat . killing admitted or confessed is the killing erred by refusing his motion for a change

aes 33 with which the defendant is accused, proof of .yenue. Appellant argues that news

Nag ms £ of the admission or confession alone will not aecounts of the shooting had created such a

ba % relieve the trial court of the necessity of prejudice against him that he could not

eee oe he giving a circumstantial evidence charge. obtain a fair and impartial trial in Bell

Saget Ridyolph v. State, 545 S.W.2d 734 (Tex.Cr.

2+ eg eae App.1977); Hielscher v. State, 511 S.W.2d

a 305 (Tex.Cr.App.1974); Martinez v. State,

151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948).

County.

The trial of appellant commenced eighty- .

three days after the commission of the of-

fense. The hearing on the change of venue

iF

é ¥

a

a

;

:

Even if the confession is equivocal, a cir-

cumstantial evidence charge is not neces-

sary if the other evidence, together with the

confession, conclusively establishes that the

killing confessed is the killing for which the

defendant is on trial. Ridyolph v. State,

supra; Hogan v. State, 496 S.W.2d 594

(Tex.Cr.App.1973); Steel v. State, 459

S.W.2d 649 (Tex.Cr.Ape297)); Patterson v.

State, 416 S.W.2d 816 (Tex.Cr.App.1967).

{4} Tiller testified that appellant's ad-

mission to him that he “shot him in the

motion was held September 20, 1978, forty-

four days after the shooting. Six residents

of Bell County testified that in their opinion

appellant could not receive a fair trial in

the county at the time of the hearing of the

motion. However, four of these witnesses

stated during cross-examination that they

could be fair and impartial if selected as

jurors. Appellant’s other witnesses were

employees of local newspapers and radio

and television stations. Each described the

coverage appellant's case had received and

a

A ee De mae See alla ar aap aia ate sem pat ae tn a ate ls tie ae hn sated ne eps ce i

BAREFOOT v. STATE Tex. 88]

Cite as, Tex.Cr.App., $96 $.W.2d $75

identified copies of newspaper stories and

transcripts of broadcasts that were admit-

ted in evidence. On cross-examination,

these witnesses stated that the purpose of

their news coverage had been to inform, not

.to inflame, the public, that they believed

appellant could receive a fair trial, and that

they could be impartial jurors.

The State called eleven witnesses to testi-

fy that there was not such a prejudice

against appellant in Bell County that he

could not receive a fair trial. The State

also introduced evidence showing that the

county’s population was between 125,000

and 158,000; that there were 45,000 regis-

tered voters in the county; and that the

four largest cities in the county were Kil-

leen, population 52,000, Temple, population

48,000, Harker Heights, population 10,500,

and Belton, population 10,000.

{[5] The evidence raised fact issues

whether appellant could obtain a fair and

impartial trial in Bell County. These issues

were decided adversely to appellant when

the trial judge, as the trier of fact, over-

ruled the motion for change of venue. Von

Byrd v. State, 569 S.W.2d $83 (Tex.Cr.App.

1978); Freeman v. State, 556 $.W.2d 287

(Tex.Cr.App.1977).

Although appellant did not renew his mo-

tion for change of venue, it is instructive to

consider the voir dire examination of pro-

spective jurors which began October 31,

1978. Both appellant and the State agree

that of the 132 prospective jurors examined,

63 had heard something about the case

through news reperts and 21 had formed an

Opinion that appellant was guilty. They

also agree that 11 of the jurors selected had

heard about the case, but all testified that

base their verdict on the evidence presented

in court.

Finally, we have examined the newspaper

stories and broadeast transeripts in the ree

or? amd fin] that they are factua! and not

inflamimatsey. They do nat in themselves

a ee en ‘iitine LRSM

eshsh ve 2 change of

wah diet tree OF roy -

ate Se

3 -

ee

oar’

ae ot ates

venue. Freeman v. State, supra; Knight v.

State, 538 S.W.2d 101 (Tex.Cr.App.1975).

We find no evidence that appellant did

not receive a fair trial by an impartial jury

free from outside influence. The trial court

did not abuse its discretion in overruling the

motion for change of venue.

(6] Appeilant contends that the trial

court erred in overruling his challenges for

cause to three venire members and in fail-

ing to grant his request for additional per-

emptory challenges. Two of these venire

members, Johnnie Kopriva and Robert Lat-

sha, were peremptorily challenged by appel-

lant after his challenges for cause were

overruled. Appellant subsequently ex-

hausted his peremptory challenges and, af-

ter his challenge for cause to venire mem-

ber James Smith and his request for addi-

tional peremptory challenges were over-

ruled, was forced to accept Smith as a juror

despite his declaration that Smith was an

objectionable juror. Thus, appellant prop-

erly preserved the alleged errors. Hernan-

dez v. State, 563 S.W.2d 947 (Tex.Cr.App.

1978); Wolfe v. State, 147 Tex.Cr.R. 62, 178

S.W.2d 274 (19-4).

Appellant contends that venire member

Kopriva was biased against a portion of the -

law on which appellant was enti ely.

Specifically, he argues that Kopriva Avas

unable to accept appellant's right to remain

silent and present no evidence in his de-

fense. This contention is based on the fol-

jowing voir dire examination by defense

counsel:

“Q. Do you feel—and many peuple do,

so you would not necessarily be in

the minority—do you feel that a

person accused of a criminal offense

should be required to come in the

courthouse and defend himself,

stand up and defend himself?

“A. No, sir. ;

“Q. Do you feel that he should be re-

quired to put on any evidence of

any type in the defense of his cuse?

BB as :

“4. Yes, sic. Pee

Digest

.

ore mrs

Teg: Fe ore se PREIS RR ee Wr mere Deere MR pE Rr are meIITEY

‘ ee i Se a?) Pi te ‘ x? re

RB . ?.* y ‘. " . ‘ : . ‘4 ;

Sei a adie on i cea

— ee

RS NE TR Re IMO ter elas et ace oil

alii oe Pr ren RPE rower

ee eee

ys

pene

.e

(ad bar wat Fe nb aareeeies

—

were

at

a?

Tex. 5% SOUTH WESTERN REPORTER, 2d SERIES :

You feel that he should, sir?

Yes, sir he should. His lawyer

should put a defense on if that’s

what you mean.

Yes, sir. That’s what I’m asking.

Yes, sir.

You feel that way, even though the

law allows for the defendant to sit

silentiy and not put on any evi-

dence?

I don’t think that I understand that

question, sir.

o > * . .

A moment ago you kind of indicated

that you felt he should put on some

evidence.

I didn’t understand the question,

though.

All right. To make sure we under-

stand then, you're saying that he

does not have to put on any evi-

dence to satisfy you?

“MR. EADS: Objection, Your Hon-

or.

“THE COURT: Overruled.

If you will answer my question,

please sir. You are saying again

that a defendant, does not have to

put on any evidence to satisfy you

that he’s not guilty?

No, sir. I think the lawyers should

present their evidence of the case

because—

You can explain that answer if you

would like to, sir.

Well, even though the State proves

its case and—well, I would still like

to hear the other side of the story.”

After this exchange with defense counsel,

the prosecutor explained to the venireman

the State’s burden of proof and the defend-

ant’s Fifth Amendment privilege. Kopriva

indicated that he understood and that he

would not hold appellant's silence against

him. Defense counsel then reexamined Ko-

priva as follows:

“Q.

oe

“Q.

yf

"q.

ws ‘Ss

“Q,

eh.

“Q.

A,

“Q.

“A.

“Q.

“A.

Mr. Kopriva, Mr. Eads has done an

excellent job of outlining for you

what the law says and whet the

constiiution says.

Yes, sir.

You are certainly a mature adult,

and you certainly have the option at

this point of stating to us that you

disugree with that law. All right,

sir?

(Headnod.)

So, that’s really what I’m asking

you. Do you, even though the law

may say that the defendant has a

right to remain silent, the law may

say that the defendant can sit here

and not open his mouth, the law

may say that the defense counsel

can sit here and not open their

mouths. Do you yourself still feel

that the lawyers should at least put

on some evidence or that the de-

fendant should at least take the

stand?

No, sir. I understand the question

now. If he proves his cuse beyond a

reasonable doubt that the defendant

is guilty, well then, I’m sure that

y'all are not going to sit there and

just let-—without saying a word—I

mean, that’s what the trial is about.

I'll admit we are kind of stretching

it a little bit.

Yes, sir.

And certainly we will be talking

just as we are talking here today.

Yes, sir.

But let's say we do all of our talking

out here at the counsel table and no

evidence of any kind is put forth in

behalf of the defendant.

Yes, sir.

Do you feel that a defendant should

put on some evidence of some kind

in order to refute or to contest his

guilt?

No, sir. I leave that up to the de-

fendant.”

BAREFOOT v. STATE Tex. 883

Cite as, Tex.Cr.App., 596 S.W.24 875

(7] It is obvious that Kopriva was ini-

tially confused as to the relationship be-

tween appellant’s right to remain silent and

‘his right to effective assistance of counsel.

Subsequent questioning by both the prose-

cuting attorney and defense counsel makes

it clear that Kopriva did not expect appel-

- lant to testify or present other evidence but

only that his attorneys would do their best

on his behalf. The trial court did not err by

overruling the challenge for cause. Scott v.

State, 490 S.W.2d 578 (Tex.Cr.App.1973).

Appellant contends that his challenge for

cause to venire member Robert Latsha

should have been granted because he be-

lieved that death is the on!y proper punish-

ment for capital murder. This contention is

based on the following exchange with de-

fense counsel:

“Q. Okay, let’s assume that the State

puts on—here again, a hypothetical

case, the State puts on—that you

were sitting in a capital murder

case and the State proved beyond a

reasonable doubt, satisfied you that

the individuz!, that the defendant in

that particular cause caused the

death of a police officer by shouting

him with a gun and that the defend-

ant knew he was a police officer

and knew he was acting in the law-

ful discharge of his duties.

“Now, do you have an opinion,

having found that man guilty, as to

what proper punishment would be

in that cuse?

“A. Do I have an opinion as to what the

proper punishment would be?

“Q: Yes, sir.

“A. I thought the way it was stated,

there is only one punishment for

capita! murler.

“Q. All right. What do you believe the

One pucihi.at is for capital mur-

der?

“A. The dexth pean!ty.

— “Q. All right. And do you believe that

jes shoul! be the proper punishment for

capital murder?

“A. Yes, sir.

“Q. And that’s an affirmative opinion of

yours?

“A. Yes, sir.

“Q. And is that an opinion that you

have arrived at as a result of your

past experience and your upbring-

ing and your thinking that you have

indicated that you have made about

the death penalty?

“A. Yes, sir.

“Q. And it would be your position that

if a capital murder case, involving

the shooting of a police officer, that

if that—if the individual was prov-

en guilty beyond a reasonable doubt

that he shot a police officer who

was in the lawful exercise of his

duties and knew that man was a

police officer when he shot him,

that in your mind the only proper

punishment that could be given

would be the death penalty?

“A. Yes, sir.”

{8] Prior to this exchange, the prosecu-

tor, during his voir dire, had stated to the

venireman that the law provides that the

punishment for capital myrler—shall be

death.” That this miseafatsin ) indi-

cated by his statement to tefsase“counsel

that, “I thought the way it was stated,

there is only one punishment for capital

murder.” After the punishment alterna-

tives and procedure were better explained,

Latsha clearly stated that he would affirm-

atively answer the punishment issues only

if the State met its burden of proof and

that he believed death to be the proper

punishment only if the answers to the is-

sues Were yes. No error is shown.

Appellant conten!s juror James Smith

expressed an opinion as to his guilt and a

bias agiinst the minimum punishment for

murder ducing his voir dire examization.

The first contention is based on the follow-

ing exchange with defense counsel:

“So since we have publicity in this

ease Lhave to ask you, sir, whether

Digest

oe en eed one REET”

regrets eT

ee

-

OO eT a sled

“eh eee >

S84

ee

rat ‘

3! Q.

* zi

“ihe Be

i «3

.%

=

a

P4 rae

~~ 2;

- 2 ef

ot «:

on he

wt

ek ans

* a“ ee J 7 °

ted “Q.

Peseres '

aes |

a

iA,

|

“Q.

could set aside these feelings?

Tex.

or not, based on what you've read

und maybe somethin;: you've heard

from discussions at I. rt Hood with

people that you worl, with, whether

you've formed an o;<rion as to the

guilt or the innocence of this man?

An opinion. I don't know whether

it would be an opinion—an ussump-

tion I would say —assuming—I

don’t know. :

Well, now, I don’t know that it real-

ly requires, I think, whether you call

it an opinion or assumption. Let

me usk you this. Would it require

some evidence for you to set aside

that assumption or fecling that you

have?

I'm not a lawyer but it seems to me

like if he was found with a weapon

that would be pretty conclusive in

my way of thinking. If it was

proved to be the wenpon that shot

the policeman.

I understand what you're saying.

I don’t know.

And the point I’m trying to make,

of course, is the State has gone over

when we say the Stute has the bur-

den of proof, what does that mean

to you?

It means they have to prove it be-

yond a doubt.

Alright, now, sometimes we have

individuals and everyone's opinion,

of course, they’re entitled to their

opinion and sometimes a person's

opinion agrees with the law and

sometimes it doesn't, Sometimes

their feelings agree. We can’t help

but have feelings established about

something and the only thing that

I'm trying to get xt is because of

what you read and because of this

feeling that you have, for example

about the gun, would you require

the defendant to produce evidence

of his innocence to you before you

“"

“ A.

“A.

“A.

£96 SOUTH WESTERN REPORTER, 2d SELES

*

“MR. EADS: I'll object to the

qvestion, Your Honor, He's said

that he would make the State prove

the burden of proof, your

Overruled... An-

Eonor.

“THE COURT:

swer the question.

I think the Siate would have to

prove it.

‘ You still would cgree

that you have formed some sort of

feelings about this case?

As to the guilt or innocence?

Yes, sir. e

An opinion, yes. I have fo-med an

opinion but now whether it’s been

proven I don’t know whether I’m

correct or not.

Let me ask you this, sir. If you

were serving as a juror on a crimi-

nal case, not necessarily this case

and at the close of evidence you felt

like the defendant was probably

guilty but you weren't sure beyond

a reasonable doubt, how would you

feel compelled to vote in the jury-

room?

You would have to prove to me that

he was guilty as a juror before I

would say guilty.”

In Murphy v. Florida, 421 U.S. 794, 95

S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Su-

preme Court said:

“The constitutional standard of fair-

ness requires that a defendant have ‘a

panel of impartial, “indifferent” jurors.’

Irvin v. Dowd, 366 U.S. [717] at 722, 81

S.Ct. [1639] at 1642, 6 L.Ed.2d 751. Qual-

ified jurors need not, however, be totally

ignorant of the facts and issues involved.

“*To hold that the mere existence of

any preconceived notion as to the guilt

or innecence of an accused, without

more, is sufficient to rebut the pre-

sumption of a prospective juror’s im-

partiality would be to establish an im-

possible standard. It is sufficient if —

St he ae

SNE aT OH

.

ae te

ee ee eo

BAREFOOT v. STATE Tex. 8985

Cite as, Tex.Cr.App., 596 S.W.2d 875

the juror ean lay asie his impression or

opinion and render a verdict based on

the evidence presented in court.’ Id.,

» at 723, 81 S.Ct. [1639] at 1642.

“-“At the same time, the juror’s assurance

that he is equal to this task cannot be

dispositive of the accused's rights, and it

remains open to the defendant to demon-

strate ‘the actual existence of such an

opinion in the mind of the juror as will

raise the presumption of partiality.’

Ibid.”

421 U.S. at 799, 800, 95 S.Ct. at 2036.

{9] The voir dire of Smith fails to show

that he would be influenced as a juror by

any opinion or prejudice or by anything he

- may have heard or read about the case.

The trial court did not err in overruling

appellant’s challenge for cause bused on

Smith’s alleged opinion as to appellant's

guilt. Freeman v. State, supra.

Appellant’s contention that Smith was bi-

ased against the minimum punishment for

murder is based on the following voir dire

examination by defense counsel:

“Q. And murder being defined the same

way, the knowing and intentional

killing of another human being. Do

you feel like that in a murder case

that you could consider as little as

five years as a punishment?

“A. I don’t think so, sir.

“THE COURT: Counsel, you

need to explain to him that you're

talking about not this case but a

proper case.

“Q. Right. We're not talking ahout any

particular murder case. The defini-

tion of murder never changes.

Murder is always the intentional

and knowing killing of another hu-

man being. But the facts change.

“A. Yes, sir.

“Q. And we have different facts and

different cases so we have a range

of punishment that varies. But

even 30 some people themselves feel

that since the definition never

changes that they just could not go

along with what the law says and

give somebody as low as five years

for the intentional and knowing kill-

ing of another human being.

“A. I think my answer would have to

depend on the facts of the case in-

volved, would it not? That's a hard

question for me to answer.

“Q. LI understand, sir. I’m just—

“A. I’m not trying to hedge, I just don’t

know the answer.

“Q. I understand what you're saying.

And as the judge said we're not

talking about a particular case, but

we do have the same definition re-

gardless of what the facts are and

so I’m just talking about where you

have the knowing and intentional

killing of another human being.

“A. If it’s obvious murder I don’t think

five years is—I don’t see the five

years.

“Q. Where do you get this opinion from?

“A. I just don’t beliéve in murder.

“Q. Alright. You understand, of course,

that as the judge has said, we don’t

know what the facts would be and I

would submit to you that there are

all kinds of facts—

“A. Yes, sir.

“Q. And that some facts there may be

some sort of mitigating circum-

- stances and I don’t know what those

mitigating circumstances would be

but still you would think that re-

gardiess of what was shown to you

that you would still be unable to

give five years in a case for the

knowing and intentional killing of

another human being?

sf. * Yes, sir, I don’t think . I cou!d.”

Thereafter, the prosecutor sought to re-

Ban tistee>

to

bilitate the juror by demonstrating the

wide range of fuct situations that may fall

within the murder statute. The prosecutor

then questioned Smith as follows:

Digest!

ee Bee

— BEN tee Te eee

aia - ominaiadath? Netnkaiaedianeld eee | (;

1 RENE +E OREM “F

F .

oy enn Cero? ~

e?

.

.

3

.

:

. &

»

at

.

,

‘es

é

_ 7 e these OOo DEB prr ae Geers

) ¥> ¢ aks Bess Oa © es | VYESTERN REPORTER, we -seitaiond

The point I'm trying to make, Mr.

Smith, is this. You can see why we

kave a range of punishment for

curder

4. Yes, sir, I see

“Q. And ail I'm saying is, do you feel

ke that as a juror in‘ the State of

Texas, that you could sit and listen

to the evidence and consider the full

range of punishment in a criminal

case. If it’s a murder case you

could consider not less than five

years or life in the Texas Depart-

ment of Corrections in that proper

ease where the facts justified it.

Where the law allowed it and the

circumstances warranted that par-

ticular punishment? That’s the

int J’m trying to make.”

ti10] Smith sifted that he could consider

Thomism nishment in a proper case.

The record does not support appellant's con-

tention that Smith could not give the mini-

mum punishment of five years and that the

juror was subject to challenge for cause

pursuant to Art. 35.16(¢)2), V.A.C.C.P.

Von Byrd v. State, supra.

[11] Since we have concluded that Ko-

priva, Latsha, and Smith were not excluda-

ble for cause, it follows that appellant was

not wrongfully deprived of a peremptory

challenge upon a venire member who was

subject to challenge for cause or forced to

accept such a venire member as a juror.

Thus, the trial court did not abuse its dis-

cretion in denying appellant's request for

three additional peremptory challenges.

Von Byrd v. State, supra; Burns v. State,

556 S.W.2d 270 (Tex.Cr.App.1977).

In twelve grounds of error, appellant

complains of the admission of evidence of-

fered to show a motive for the commission

of the instant offense that also shows he

committed extraneous offenses in New

Mexico. Michael Roach, a deputy sheriff in

Valencia County, New Mexico, testified

that he arrested appellant on October 29,

1977, for criminal sexual penetration of a

minor and !ater took Lim lefore a magis-

trate for arraignment. Jchn Horecek, a

magistrate in Valencia County, testified

thet he crraigned eppcllent on November I,

1977. At ius time, Horecek informed 2p-

pe! that he was charged with two

counts of sexual penetration of a minor

carrying a maximum punishment of impris-

orment for life and one count of kidnap-

ping carrying a maximum punishment of

imprisonment for fifty »-ars, and set dail at

$100,000. Ronald Childress, a New Mexico

attorney, testified that he represented ap-

pellant in regard to these charges and that

a trial was set for January 30, 1978. Law-

rence Romero, sheriff of Valencia County,

Daniel Hawkes, a deputy sheriff, and Vel-

ma Hardesty, the jailer, testified that ap-

pellant escaped from the Valencia County

jail on January 9, 1978. These witnesses

identified and the trial court admitted in

evidence certified copics of the complaint,

indictment, and arraignment in the sexual

penetration and kidnapping case, and an

indictment and arrest warrant charging ap-

pellant with escape.

{12,13] In its charge to the jury, the

trial court limited the jurors’ consideration

of these extraneous offenses to the question

of appellant’s motive for killing the de-

ceased. One of the exceptions to the gener-

al rule that an accused is entitled to be tried

on the accusation made in the State’s plead-

ing and not for some collateral crime or for

being a criminal generally is that evidence

showing a motive is admissible even though

it also shows the comrnission of an extrane-

ous offense. Hughes v. State; 563 S.W.2d

581 (Tex.Cr.App.1978); Cherry v. State, 488

S.W.2d 744 (Tex.Cr.App.1972); Rodriguez v.

State, 486 S.W.2d 355 (Tex.Cr.App.1972);

Stephens v. State, 147 Tex.Cr.R. 510, 182

$.W.2d 707 (Tex.Cr.App.1944).

Although several cases in which extrane-

ous offenses were held admissible to show

motive were prosecutions for escape or for

offenses growing out of an escape, appel-

lant is mistaken when he argues that the

rule of admissibility is limited to this nar-

BAREFOOT y. STATE Tex.

887

Cite as, Tex.Cr.App., 5396 S.W 2d 375

row fact situation. In Hughes v. State,

supra, the defendant shot a police officer

who had stopped him for investigation of a

reported case of credit card abuse. This

Court held that the defendant’s extortion

conviction in an Alabama federal court sev-

en months prior to the shooting, which re-

sulted in a three-year probated sentence,

was admissible to show motive. In Cherry

v. State, supra, the defendant’s escape from

a Georgia penitentiary, where he was serv-

ing a life sentence, was he!d to be admissi-

ble to show his motive for shooting a police

officer eight months later. To the same

effect are Washburn y. State, 167 Tex.Cr.R.

125, 318 S.W.2d 627 (1958) (evidence that

the defendant attempted to extort money

from his victim four years prior to the

murder) and Ellisor v. State, 162 Tex.Cr.R.

117, 282 S.W.2d 393 (1955) (evidence that

the defendant committed a burglary two

days prior to shooting a police officer who

stopped him for speeding.)

(14) Appellant argues that it was un-

necessary to admit the New Mexico of-

fenses because there was other evidence of

motive, including the apparent arson at the

Silver Spur and statements appellant had

made to friends threatening to kill a Hark-

er Heights policeman. That appellant may

have had other motives for killing Levin,

however, does not mean that he was not

‘motivated by a desire to avoid his return to

New Mexico. See Hughes v. State, supra;

Ellisor v. State, supra. The trial court did

not err in admitting the evidence of extra-

neous offenses for the limited purpose of

showing motive.

(15) ApreNant contends that the trial

court erred by refusing to di shin ne “probabili-

ty” in its charge to the jury at the punish-

ment stage of the iat “This Court has

provicusty held that scch a definition is not

Peston: Aljey v. Seite, 553 S.W.ad 105

(Tex:CeAs 2977). No error is presented,

« Two _psyebutrists, Drs. Johan Bolhrook

and Jarre: Grignos, were called ky the

tate to testify at the pucishmont stage of

the trial. Both doctors were given a hypo-

thetical fact situation based on the evidence

in this case and asked if the individual

described in that question would probably

commit future acts of violence that would

constitute a continuing threat to society.

Both doctors testified that in their opinion

he would do so.

Appellant argued at the trial, as he does

now on appeal, that Holbrook and Grigson

were not qualified to give an opinion as to

his future conduct because they had not

personally examined him and based their

opinions solely on the State’s hypothetical

question. Appellant also argues that psy-

chiatrists, as a group, are not qualified by

education or training to predict future be-

havior. Appellant does not contest the indi-

vidual qualifications of either witness.

{16] This Court is well aware that the

ability of psychiatrists to predict future be-

havior is the subject of widespread debate.

However, we are not inclined to alter our

previously stated view that a trial court

may admit for whatever value it may have

to a jury psychiatric testimony concerning

the defendant’s future behavior at the pun-

ishment stage of a capital murder trial.

Chambers v. State, 568 $.W.2d 313 (Tex-Cr.

App.1978); Moore v. State, 542 S.W.2d 664

(Tex.Cr.App.1976).

(17] The trial court did not err by per-

mitting the doctors to testify on the basis of

the hypothetical question. The use of hypo-

thetical questions in the examination of ex-

pert witnesses is a well established practice.

2 C. McCormick and R. Ray, Texas Evi-

dence, Se 2, 1402 (21 ed. 1936). That the

experts had not examined appellant weat to

the weight of their testimony, not to its

admissibiity.

{is} Appellant argues that the hyp

thetical question was improper heasuse i

was not based on all of the esilence in the

case. Although a hypetietical question

must be based on the facts of the case,

counsel may assume the facts in accordance

Digest

j

seer reer =

OT LS CUT At POSS TNE

ee ee

ee eee

RC RR ER Ee t Ream pmnaN m8 me ma

—o—-

“eee vet.

eat Le eee ee

o me oer

*

oeervee

ot”

-

with his theory of the case. If the oppo-

ure the expert's opinion

“arent set of facts he may do so

namin nation. Atkinson v. State,

P11 $.W2d 223 (Tex.Cr.App.1974); Knoep-

pel v. State, 382 §.W.2d 493 (Tex.Cr.App.

1244); McMurrey v. State, 145 Tex.Cr.R.

229, 168 $.W.2d $38 (Tex.Cr.App.243); Da-

vis v. State, 54 Tex.Cr.R. 226, 114 S.W. 566

(1008). These grounds of error are over-

ruled.

er

rent Gestres to sec

=p @ Gil

on cross

wert

[19] Appellant also contends that Hol-

brook and Grigson should not have been

permitted to express an opinion as to the

probability of future violent behavior on his

part because such testimony constitutes a

legal conclusion. Appellant cites the case

of Carr v. Radkey, 393 S.W.2d 806 (Tex.Sup.

1965). In that case, the Court held that

“a witness may not be asked whether a

testator had the mental capacity to make

and publish a will because, under Brown

v. Mitchell [88 Tex. 350, 31 S.W. 621

(1895)] whether a person has mental ca-

pacity to execute a will involves a legal

definition and a legal test. A witness

may be asked, assuming he knows or is a

properly qualified expert, whether the

testator knew or had the capacity to

know the objects of his bounty, the na-

ture of the transaction in which he was

engaged, the nature and extent of his

estate, and similar questions.” 393

S.W.2d at 813.

Appellant argues that a witness should not

be permitted to testify that there is a prob-

ability that the defendant would commit

criminal acts of violence that would consti-

tute a continuing threat to society because

the question involves a legal definition and

a legal test. :

Appellant's contention is without merit

for the simple reason that “probability,”

“criminal acts of violence,” and “continuing

threat to society” are not terms defined by

statute or case law. On the contrary, they

are words of ordinary meaning. King v.

State, supra. Thus, the testimony in ques-

£96 SOUTH WESTERN REPO

RTER, 2d SEXiES -

tion did not involve the a:pliection of a

t

legal defiaition or test. We also note that

if sppeReat were correct in erscing shat §

Witness may mot express 2n Cpinion on B

e tewsl a

NZ &@ ie gai Ge

matter involv!:

this would, among other thing

routine practice of asking a psychiatrist

whether, in his opinion, the defendant ves

legally insane at the time of the offense.

V.T.C.A.Penal Code, Sec. 8.01.

inition or test,

S53 P: revert the

{20} Finally, appellant contends that

Art. 37.071, V.A.C.C.P., is unconstitutional

because the term “probability” is so vagae

that men of common intelligence must

guess as to its meaning and application.

This contention has been repeatedly over-

ruled by this Court. Granviel v. State, 552

S.W.2d 107 (Tex.Cr.App.1976); Collins v.

State, 548 S.W.2d 368 (Tex.Cr.App.i$76);

Jurek v. State, 522 $.W.2d 934 (Tex.Cr.App.

1975), aff'd 428 U.S. 262, 96 S.Ct. 2950, 49

L.Ed.2d $29 (1976).

(21] At the punishment stage of the tri-

al, witnesses from various cities in New

Mexice, Kansas, Cklahoma, Louisiana, and

Texas testified that appellant’s repu‘ation

in their communities for being a peaceful

and law-abiding citizen was bad. Evidence

was also admitted of appellant's prior con-

viction in Louisiana for possession and dis-

tribution of marihuana, possession of am-

phetamine, and carrying a concealed weap-

on, and in a federal district court in Oklaho-

ma for unlawful possession of a sawed-off

shotgun. This evidence, together with the

evidence adduced at the guilt-innocence

stage of the trial, is more than adequate to

support the jury's affirmative answers to

the punishment issues.

[22-24] Although appellant’s counsel

and the State have both filed briefs which

are of excellent quality and which greatly

aided the Court in its difficult decision, the

appellant has filed a pro se brief in which

he asserts additional grounds of error. In

addition to the grounds of error urged by

counsel appellant asserts that the trial court

CORDARY v. STATE Tex. 889

en ei A ae meee ate

Cite as, Tex.Cr.App., 596 S.W.2d 389

erred in refusing to grant his motion for an

instructed verdict and in refusing to seques-

ter the jury during the trial. The evidence

that we have already summarized in this

Opinion is amply sufficient to support the

jury’s verdict and the court did not err in

overruling appellant's motion for an in-

structed verdict. The careful trial judge

considered the appellant’s motion concern-

ing the sequestering of the jury during the

trial and overruled that motion. Whether

to grant this motion is within the discretion

of the trial court, and we find nothing to

show an abuse of discretion by the trial

judge in overruling that motion. The

grounds of error presented by the pro se

brief are overruled.

The judgment is affirmed.

ROBERTS, J., concurs in result.

CLINTON, Judge, dissenting in part.

To the overruling of the twelve grounds

of error concerning admission of evidence

shoving commission of extraneous offenses

in New Mexico, I respectfully dissent. The

Court appears to recognize other proof

made by the State and to acknowledge that

it showed appelfant killed Levin from a

more immediate, localized motivation. Giv-

en the obvious preiudicial impact of the

extraneous New Mexico offenses, I cannot

agree that we may tolerate it on the double

negative theory thet existence of other mo-

tives for killing Levin “does not mean that

he was not motivated by a desire to avoid

his return to New Mexico.” It seems clear

to me that this is the classic case where

slight probative value is far outweighed by

heavy prejudice.

PHILLIPS, J., joins.

given an examining trial prior to return of

genes: agent was ares ey, : he ; :

Robin CORDARY, Appellant,

v.

The STATE of Texas, Appeilee.

No. 62376.

Court of Criminal Appeals of Texas,

Panel No. 3.

March 19, 1980.

Rehearing Denied April 30, 1980.

Defendant, who was convicted of sell-

ing LSD, appealed from an order of the

43rd Judicial District Court, Parker County,

Harry W. Hopkins, J., which revoked her

probation. The Court of Criminal Appeals,

Phillips, J., held that under statute in effect

at time of defendant’s conviction at which

time defendant was 16 years of age, district

court did not have jurisdiction over the

defendant, who was never made subject to

juvenile court proceedings prior to being

indicted and convicted as an adult, and

therefore her conviction was void; further-

more, inasmuch as defendant was not given

an examining trial prior to return of her

indictment, indictment was void.

Judgment reversed; prosecution under

indictment dismissed.

Dally, J., dissented.

Indictment and Information =9

Infants 63.5

Under statute in effect at time of de-

fendant’s conviction at which time defend-

ant was 16 years of age district court did

not have jurisdiction over the defendant,

who was never made subject to juvenile

court proceedings prior to being indicted

and convicted as an adult, and therefore her

conviction for sale of LSD was void; fur-

thermore, inasmuch as defendant was not

Digest

ee a dled

“+.

a

a lh ati

‘ satis ee ee

Re altel Se ii ite De all RES Senor s Ie : '

oy Ha dete

é NO. 26,812-A

EX PARTE ey i] IN THE 27Til DISTRICT COURT

i or

_ THOMAS A. BARCFOOT { BELL COUNTY, TEXAS

ORDER

.

On this day came on for consideration the Applicant's Petition for

Writ of Habeas Corpus and the State's Answer thereto and having considered

the same, the Court enters the following finding of fact {} conclusidns of

eeoonmvenee Sem Eon neuf Oe Sark

OCT ¢ 198)

law end recoumendations.

UV. Craarrntia

HISTORY OF THE CASE ft Cet ik Coustyy Fore

» Se < f | ie oe

The Applicant is presently in the Texas Department of Corrections by

virtue of a judgment and sentence issued from the 27th District Court of

Bell County, Texas in Cause No. 26,812 wherein the Applicant was charged

with capital murder. On November 14, 1978, the Applicant was tried before

a jury which found him guilty of capital murder and answered the two

special issue questions on punishment in the affirmative. Upon automatic

appeal to the Court of Criminal Appeals, the conviction wes affirmed on

June 2, 1980 in Cause No. 63,713 and the opinion is reported in State vs.

Barefoot, 596 S.W.2d 875 (Tex. cr. App. 1980). Thereafter the Applicant

was sentenced to die by injection before sunrise on Septcmber 17, 1900.

.

On July 29, 1980, a stay of execution was granted by the Supreme Court

of the United States pending the filing of a Petition for Writ of Certiorari.

The Petition wes filed in Cause No. 805,320 on August 27, 1980 and on June

29, 1981 the Petition was denied and the stay of execution was dissolved.

On August 14, 1981 the Applicant was again sentenced to death by the trial

court which set his execution sometiwe before sunrise on October 13, 1961.

II

ALLEGATIONS OF THE PETITIONER

oo —

The Petitioner's allegations will be stated as they are considered.

Mi

NECESSITY FOR AN EVIDENTIARY HEARING

There is no necessity for an evidentiary hearing for the reason

that there is no fact in issue that cannot be found from the record.

IV y

FINDING OF FACT AND CONCLUSIONS OF LAW

A

The Applicant first alleges in points of error one and three that

prospective juror Ruby Sanders was excluded in violation of Witherspoon

vs. Illinois, 391 U.S. 510 (1968) and Adams vs. Texas U.S. ’

100 S. Ct. 2521 (1980). The State alleges first that Applicant waived

any error by failing to object and secondly that the prospective juror

was not excluded in violation of Witherspoon or Adams.

The Court finds that the Petitioner failed to object to the

exclusion of the prospective Juror and that any Witherspoon error was

waived. White vs. State, 610 S.W.2d 504 (Tex. Cr. App. 1981). The

Court is further of the opinion that the prospective juror was not

challenged on or excluded under the 12.31 (b) issue considered in Adams

vs. lexas. The Court finds that prospective juror was challenged for

the reason that she was disqualified under Witherspoon and that she was

properly excluded on that basis.

B

The Applicant alleges in point two that the Applicant failed to

receive effective assistance of counsel because counsel failed to object

to the Court's exclusion of prospective juror Ruby Sanders for cause.

The Court is of the opinion that this failure does not demonstrate

incompetency of counsel or amount to ineffective assistance of counsel.

C

The Applicant next alleges in points four and five that he was

denied effective assistance of counsel and due precess of law because

counsel for the defense failed to render effective assistance of counsel

during the voir dire.

eo One of the Applicant's chief cowplaints in this regard is that

counse] for defense did not understand the principles of Witherspoon.

This Court is of the opinion that the record reflects otherwise.

The Applicant also complains that counsel for the defense agreed to

excuse several prospective jurors, failed to object to the exclusion

of others and failed to attempt to rehabilitate several jurors who are

challenged for cause under Witherspoon. The fact that these events

occurred docs not demonstrate incompetency of counsel. Trial counsel

is not to be judged by hindsight or by the fact other counsel would

have done differently. The test of effective assistance of counsel is

not errorless counsel “but counsel reasonably likely to render and

rendering reasonably effective assistance". Mac Kenna vs. Ellis, 280

F.2d 592, 599 (5th Cir. 1960). In applying this test, moreover, the

entire representation must be considered and not just the voir dire

as suggested by Applicant's present counsel.

When this Court appointed Gerald Brown and Steve Blythe to represent ¢

the Applicant at trial, the Court censidcred the qualifications of Mr.

Brown and Mr. Blythe in criminal matters to represent the Petitioner

against the serious offense charged. Mr. Brown is certified by the Board

of Legal Specialization as a Specialist in Criminal Law. Both Mr. Brown

and Mr. Blythe regularly handie serious criminal cases and have done so

for at least the past seven years and both enjoy an excel tent reputation

among criminal law practitioners of this county and others as competent

in criminal law matters. This Court, moreover, has had many occasions

during the past seven yearsto observe the quality of their representation

in serious criminal cases and have never found it wanting.

Having considered the totality of the representation rendered by

trial counsel, this Court finds that the Petitioner enjoyed the effective

assistance of counsel.

1)

The Petitioner next alleges in point six that he was denied his rights

under the Sixth and Fourteenth Amendments because the Court failed to sustain

his challenge for cause to several prospective jurors who could not

consider the minimum punishment of five years for the lesser included

offense of murder and for the further reason that the Court erroneously

granted a similar challenge to a prospective juror made by the State.

The Court presumesthat the Petitioner is complaining about

prospective jurors Johnnie Kopriva, James Smith and Wilbert Baca.

The Court finds that prospective jurors Kopriva and Smith could :

consider the mininum punishuent of five years for the offense of murder

and that the Court did not err_in overruling the Applicant's challenges

for cause. The Court further finds that prospective juror Wilbert Baca

could not consider the minimum punishment of five years for the offense

of murder and that the Court did not err in sustaining the State's

challenge to the said prospective juror. The Court further finds that

the Petitioner dic not object to the exclusion of prospective juror

Baca and ‘hat any error was thus waived.

The Petitioner further alleges that the State's challenges were

considered under a more liberal standard than Petitioners. The Court

finds that this allegation is not true.

E

The Petitioner next alleges in point seven that “the entire voir

dire examination, under the totality of the circumstances, was designed

to and did produce a jury organized to return a punishment of death,

contrary to the mandate of Witherspoon vs. I]linois, 391 U.S. 510 (1968)

and in violation of the Sixth, Eighth and Fourteenth Amendments to the

Constitution of the United States".

The Court finds that no prospective juror was wrongfully excluded

from jury service in violation of Witherspoon cver objection.

F

The Petitioner next alleges in points of error eight, nine, and ten

that the use of psychiatric testimony that the petition would be a

continuing danger to society which was based solely upon hypothetical

? ! question that contained a detailed summary of the facts but included

no medical, psychiatric or psychological facts or history and none of

the mitigating evidence violated his rights under the Eighth and

Fourteenth for the reason that such testimony was unreliable, bolstered

the State's punishment evidence with the gloss of medical expertise

and created a significant risk that the jury would inaccurately assess

the credibility of such testimony and made an inaccurate decision to

impose death.

The heart of Petitioner's complaint is that the use of psychiatric

testimony by hypothetical question is so inherently unreliable that it

offends due process of law and corrupts the accuracy of the sentence

determination procedure. The use of psychiatric testimony on the issue

of dangerousness has been approved by the Supremem Court in Jurek vs.

Texas, 428 U.S. 262 (1976) and Estelle vs. Smith, U.S. (119811)

by necessary implication. The fact that the psychiatrists did not

personally examine the Petitioner but rather testified on the basis of

hypothetical questions goes to the weight and not the admissibility of

the expert opinion. Barefoot vs. State, 596 S.W.2nd 875 (Tex. Cr. App.

1980). As the Court pointed out on appeal of this case in Barefoot, supra,

the State may assume the facts in a hypothetical question in accordance

with her theory of the case and that if the opponent desires to solicit

an opinion upon a different set of facts, he is entitled to do so. The

fact that the Petitioner did not or could not does not render the opinion ~

inadmissible. This Court is further of the opinion that the psychiatrists

were presented with "psychiatric and psychological facts and history"

concerning the Petitioner. The Psychiatrists were asked to assume as true

in a lengthy hypothetical question many facts established at trial about

the Petitioner including his prior convictions, his reputation for peaceful

and lawabiding citizenship spanning several years in five different states

and his conduct prior, during and after the commission of the offense. Each

Psychiatrist was then asked if he could state an opinion on the basis of

those facts assumed to be true and each indicated he could. No evidence wes

presented by the defense that a psychiatrist could not state an epinion on

the facts assumed to be true.

5

SR ee Ee ee a oe eee eee ee Ne Ne ee ee PRR Te ee Sy NS e)~ Pek ar ee ee dl

The Court is of the opinion that the testimony of psychiatrists on

the punishment issues was admissible and that no error is shown.

G

In his eleventh point of error, the Petitioner complains that

Article 37.071 V.A.C.C.P. violates the Sixth, Eighth and Fourteenth

Amendments to the Federal Constitution “because it cantatas no pro-

visions for directing and instructing the jury's consideration of

mitigating circumstances at the punishment phase of the trial and is

heavily weighted in favor of the State by focusing the jury's consideration

on the aggravating circumstances".

The Petitioner argues that the evidence introduced suggested that

the Petitioner was intoxicated or under the influence of morphine during

the conmission of the offense and that the Court erred in failing to

specially submit this possible mitigating evidence to the jury on the

punishment issues. It must first be noticed that no objection was made

to the punishment charge on the grounds now urged nor was any request

for a special instruction made.

The Court instructed the jury, moreover, that they may consider on

the punishment issues all evidence admitted during the guilt/innocence

and punishment phases of the trial. No special instructions singling

out possible mitigating or aggravating evidence is required and if done

would amount to a comment on the weight or the evidence.

CONCLUSION

Having considered the Petitioner's Application for Writ of Habeas

Corpus the State's Answer filed thereto, this Court is of the opinion

that the Application is without merit and should be denied.

The Clerk is directed to compile a transcript including the indictment,

judgment, sentence, and death warrant in this case together with a copy

of the Petitioner's Application for Writ of Habeas Corpus, the State's

Answer and this order to the Court of Criminal Appeals in Austin, Texas.

The Clerk is further directed to serve a copy of this order upon

Petitioner by mailing a copy of Petitioner's Attorney, Will Gray, P. 0.

Box 613, Simonton, Texas 77476.

Signed this the Gti, day of Le thle— we.

tit $30 FIP).

/ ,

q

a

#

.

:

;

No. 26,812-A

EX PARTE § IN THE 27TH DISTRICT COURT

b) OF

_ THOMAS A. BAREFOOT * BELL COUNTY,. TEXAS

STATE'S ANSWER

COMES NOW the State by and through her District Attorney and files

this the State's Answer to the Applicant's Petition For Post Convic

Writ Of Habeas Corpus and would show the Court as follows: LAL Eg f:

tees Pm o*

I ee

; OCT ¢

HISTORY OF THE CASE 198)

The Applicant is presently in the Texas Department of cole Ba, :

a mp. -

by virtue of a judgment and sentence issued fran the 27th District Court

of Bell County, Texas in Cause No. 26,812 wherein the Applicant was

charged with capital murder. On Novmeber 14, 1978, the Applicant was

tried before a jury which found him guilty of capital murder and answered

the two special issue questions on punishment in the affirmative. Upon

automatic appeal to the Court of Criminal Appeals, the conviction was

affirmed on June 2, 1980 in Cause No. 63,713 and the opinion is reported

in State v. Barefoot, 596 S.W.2d 875 (Tex. Cr. App. 1980). Thereafter

the Applicant was sentenced to die by injection before sunrise on

September 17, 1980.

Qn July 29, 1980, a stay of execution was granted by the Supreme

Court of the United States pending the filing of a Petition For Writ Of

Certiorari. The Petition was filed in Cause No. 805,320 on August 27,

1980 and on June 29, 1981 the Petition was denied and the stay of execution

was dissolved. On August 14, 1981 the Applicant was again sentenced to

death by the trial court which set his execution sometime before sunrise

on October 13, 1981.

On Guilt And Innocence

On August 7, 1978 Donnie Ray Tiller and Robert Roberson lived in a

trailer omed by them located in the Elm Grove Trailer Park in Killcen,

Srp 0

2 Se ETS Smee

ie Texas. Residing with them was Radene Layto, Deborah Forbes and the

» Defendant who began living at the trailer in June under the assumed name

of Darren Collier (SF 1399-1408). During the summer of 1978, the Defendant

asked Tiller many times to get him a gun (SF 1412) and often talked to

both Tiller and Roberson about wanting to commit robberies in Harker

Heights, Texas, a city contiguous to Killeen (SF 1414, 1512). The

Defendant also told Tiller that he had been roughed up during an arrest _ P

for public intoxication in Harker Heights and that Tiller would be

reading about him in the newspaper for killing a Harker Heights police

officer (SF 1413-1414).

At approximately 2:00 p.m. August 6, 1978, the day before the

murder, the Appellant told Donnie Ray Tiller that he planned to rob the

Oasis Club in Harker Heights on the morning of August 7, 1978 and to

create a diversion for the police by setting fire to or blowing up a

building in Harker Heights (SF 1415-1418). The Defendant left the

trailer at 4:00 p.m. August 6, 1972 (SF 1419-1420) and at 4:00 a.m.

August 7, 1978, Donnie Ray Tiller went to work at the Yellow Cab Campany

in Killeen, Texas as a dispatcher (SF 1423). ;

Robert Roberson was also employed by the Yellow Cab Company (as a

G@river) and began work at 5:00 p.m. Sunday, August 6, 1978 and finished

at 4:15 a.m. August 7, 1978 (SF 1514-1515). He returned to the trailer

at 4:30 a.m. using Tiller's car and went to bed with Debbie (SF 1516).

The Defendant then arrived at the trailer, aroused Roberson out of bed

and asked him for a ride to Harker Heights. The Defendant was wearing a

white T-shirt, Levi blue jeans, a pair of pointed toe boots and had in

his possession a homemade bomb, a plastic milk jug and a fully loaded

-25 automatic pistol which he carried in his back pocket (SF 1517-1521).

Roberson agreed to drive Defendant to Harker Heights and on the way

Appellant told Roberson that he was going to blow up the Silver Spur

located on Highway 190 in Harker Heights (SF 1522). Roberson drove the

Defendant to Mickey's Number Four, a drive-in grocery in Harker Heights

near the Silver Spur so that Defendant could buy some gas. Refusing to

carry Defendant to the Silver Spur, Roberson left him armed with a .25

caliber pistol and a gallon of gasoline at the drive-in store and returned

to the trailer with the homemade bomb which Defendant inadvertently left

in the car (SF 1524-1528).

St oa

At 5:15 a.m. August 7, 1978, John Edwards, a soldier at Fort Hood,

Texas who\resided in Harker Heights left for Fort Hood driving his usual

route which took him past the Silver Spur (SF 1158-1168). As Mr. Edwards

drove towards Business Highway 190 and approached the Silver Spur, he

cbserved flames coming fran the roof of the club and the Defendant

facing the fire standing on the edge of the parking lot next to Highway

190 (SF 1168-1174). No one else was present in the area (SF 1171-1172).

As Mr. Edwards started to turn on Business Highway 190, the Defendant

turned and ran across the highway (SF 1174-1177). Mr. Edwards drove to

the police station, informed the police about the fire and then returned

to the scene of the fire (SF 1179-1183). As Mr. Edwards was driving

down Business Highway 190 towards the fire, he observed the Defendant

running down the highway towards the intersection of Amy Lane (SF 1194-

1197). At the scene of the fire, Mr. Edwards observed a fire inspector

remove a melted plastic jug from the roof of the burning building (SF

1189-1190). After this observation was made, Mr. Edwards informed the

victim, Officer Carl Levin, of what he knew about the fire including

observing the Defendant at the scene of the fire and later again near

Amy Lane. The uniformed officer then left in his marked patrol car dom

Highway 190 towards Amy Lane (SF 1194-1197).

Mr. Michael Trash, a soldier at Fort Hood, lived con Amy Lane and at

5:35 a.m. August 7, 1978, he left for Fort Hood on foot walking down Any

Lane. While walking, he observed a patrol car with emergency flashers

on, parked on Amy Lane a* “he intersection of Valley Road (SF 1219-

1227). The spotlight of the patrol car was on some bushes and Mr.

Thrash observed a man wearing blue jeans and a white T-shirt (SF 1245)

walk out of the bushes into the spotlight and approach a wiiformed |

police officer who was standing next to the patrol car (SF 1228-1231).

As the two were talking within two feet of each other, the man who

appeared out of the bushes shot the police officer in the head without

provocation at point blank range (SF 1237-1243). The wifomned police

officer fell to the ground and the assailant fled, rumning down Valley

Road. Mr. Thrash ran to the patrol car to help the officer, swimoned

assistance over the police radio and pursued the assailant a short

distance loosing him (SF 1243-1246). Carl Levin, the police officer,

Gied beside his patrol car (SF 1253) with his gun still strapped in his

OO <_ es

holster (SF 1331). A shell casing was found between his body and his

patrol car (SF 1252). The autopsy revealed that Carl Levin died fram a

bullet fired at close range that entered the left side of his forehead

two inches above his left eyebrow and passed through his brain (SF 1743-

1753). The projectile was recovered (SF 1752) and ballistic tests

established that it was fired into the head of Carl Levin from a distance

of 3-6 inches (SF 1780).

Mary Richards lived on Valley Road near the intersection of Amy

Lane and while in bed before 5:45 a.m., she heard a shot. Mrs. Richards

looked out her bedroom window facing the street and cbserved a man

resembling the Defendant wearing a white T-shirt (SF 1277) running down

Valley Road away fran Amy Lane (SF 1256-1269). While Mrs. Richards

stated that she could not positively identify the fleeing man, Mrs.

Richards described the man as about five feet five inches to five feet

seven inches tall having a muscular build and wavy, course hair and

pointed out the Defendant as resembling him (SF 1265-1269).

At approximately 10:45 a.m. the same morning, after hearing the

news on the radio, Donnie Ray Tiller received a phone call at the office

of the Yellow Cab Company fram the Defendant (SF 1426-1428). With

reference to the shooting of the police officer in Harker Heights earlier

that morning, August 7 (SF 1432), the Appellant told Mr. Tiller "I shot

him. I killed the mother fucker. I shot him in the head.” (SF 1429).

The Defendant asked what he should do and stated that he was calling

fram the Gibson's Store on Highway 190 and that he would call back.

After this conversation, Mr. Tiller talked with Detective Carl Trippet

of the Killeen Police Department and related to him the information

received fran Appellant (SF 1430).

Later the same morning, three police officers went to the trailer

belonging to Tiller and Roberson looking for Defendant and awoke Roberson.

The Defendant was not there and after the officers left, Roberson went

back to bed only to be awaken again but this time by the Defendant (SF

1529-1532). The Defendant was dressed like he was when Roberson last

saw him, wearing a white T-shirt, blue jeans and boots but his face,

mustache and white T-shirt were speckled with blood (SF 1532-1533). The

Appellant was in a state of panic (SF 1534) and Mr. Roberson told him

that the police were looking for him. The Defendant then told Mr.

Roberson that he had to get out of town because “he wasted a cop, that

he killed a cop.” (SF 1533). Mr. Roberson asked him how he killed the

police officer arid the Defendant demonstrated how he committed the crime

by putting his hand in his back pocket, pulling his hand out and putting

his finger against Roberson’s head at the place that corresponded to the

bullet wound on the head of the slain officer (SF 1534-1535). The

Defendant then washed up, changed clothes wearing blue jeans, a brown

knit-shirt and a jean vest and left the trailer (SF 1535-1538).

On the morning of August 7, 1978, Francisco Hernandez met the

Defendant on a street in downtown Killeen. The Defendant told Mr.

Hernandez that he had lost his job and got kicked out of the Star Motel

where he was staying with a friend (SF 1599-1602). Mr. Hernandez invited

the Appellant to his hame where the Defendant ate lunch, slept in the

afternoon and stayed the night (SF 1604-1610). The next morning, August

8, 1978, Mr. Hernandez ‘listened to the news broadcast on the radio which

described the Defendant and then inquired, “That's you they're looking

for.” The Defendant stated “I am the cne that they're looking for, but

I didn't kill no policeman.” Mr. Hernandez asked Defendant to turn

himself in but he refused (SF 1612-1614). Mr. Hernandez asked Defendant

to leave and Defendant shaved off his mustache and changed into another

shirt that Hernandez gave him (SF 1615-1616). They then left Killeen

and went to the bus station in Belton, Texas where Defendant decided to

take the next bus to Houston. Mr. Hernandez left the Defendant in

Belton and hitchhiked to Austin where Mr. Hernandez went to the police

station and informed the police that the bus carrying the Defendant

would arrive in Houston at 11:30 p.m. (SF 1617-1628).

Texas Rangers, Don North and William Walk, and Houston Police .

Officers, J.L. Davis, H.E. Gaas and R.V. Holdereith, arrested the Defendant

in the Houston Greyhound Bus Station shortly after 11:20 p.m. August 8,

1978 (SF 1662-1672). A fully loaded .25 caliber autamatic pistol was

found in Defendant's right rear pocket (SF 1675-1680). Ballistic tests

revealed that the projectile that killed Officer Carl Levin and the

shell casing found beside the body of the slain officer were fired fran

the pistol taken from the Appellant (SF 1781-1782). It was also established

that Carl Levin was the only police officer killed in all of Bell County,

August 7, 1978 (SF 1813).

To show the Defendant's motive in killing Officer Carl Levin, the

State presented evidence that the defendant had been arrested and indicted

in New Mexico for the offenses of sexual penetration of a minor and

kidnapping and that while waiting for trial on those charges, he escaped

from jail. (The State gave the Defendant notice on October 16, 1978

that the State intended to prove that the Defendant was charged by

indictment with the offense of rape and kidwapping of a child and that

while waiting trial in New Mexico on those charges, he escaped fran

jail. TR 193). Mr. Mike Roach testified that he was a peace officer for

Grants, New Mexico and that on October 29, 1977 he arrested the defendant

in New Mexico for the offense of sexual penetration of a minor and

carried him before a magistrate (SF 1113-1117).

Judge John Horececk testified that he is a magistrate of Valencia

County, New Mexico and that on November 1, 1977 he arraigned the Defendant

for the offense of sexual penetration of a minor and kidnapping, that he

informed the Defendant that the maximm penalty for the sexual penetration

was life imprisc/ment and that the punishment for kidnapping was fram

five to fifteen years imprisorment and that he committed the Defendant

to the Valencia County jail in lieu of $100,000.00 bond (SF 1118-1122).

Mr. Lorenz Romero, the Sheriff of Valencia County, New Mexico,

testified that the Defendant was incarcerated in the Valencia County

Jail and that on January 19, 1978, the Defendant escaped (SF 1122-1125).

Ronald Childress, testified that he represented Thomas A. Barefoot upon

the indictment in Cause No. 4374-C pending against him for sexual penetration

of a minor and kidnarpiny and that the case was set for trial for the

week of January 30, 1978 (SF 1125-1131).

Velma Hardisty, a dispatcher and jailer for the Valencia County

Jail, testified that during the early morning hours of January 19, 1978

she heard noices coming from the back of the jail and later discovered

that the Defendant and another prisoner had escaped (SF 1130-1137).

Deputy Sheriff Daniel Fox testified that the Defendant and a

fellow prisoner escaped by knocking a hole in their cell wall, entering

an adjoining ceil on which the door was opened and escaping out a window

that they removed (SF 1138-1142).

The State introduced in evidence a copy of the indictment in Cause

No. 4374-C, styled The State of New Mexico v. Thamas Andy Barefoot,

charging the Defendant with Rape, Sexual Abuse and Kidnapping Of A Child

(SF 2233), a copy of the arraignment in Cause No. 4374-C (SF 2235), a

copy of the indictment in Cause No. CR78-40, styled The State Of New

* Mexico v. Thomas Barefoot, charging the Defendant with Escape (SF 2236)

and a copy of the warrant for the arrest of the defendant for Escape

that issued in Cause No. CR78-40 (SF 2237).

B

On Punishment

The State proved at punishment that the Defendant had been previously

convicted of the following offenses:

(1) Possession of an unregistered firearm on October

24, 1975 in Cause No. 75-164 in the United States

District Court for the Western District of Oklahama

for which the "ofendant was sentenced to one year

in prison, (SF 1964-1966, exhibit 49, SF 2349),

(2) Possession of amphetamines on December 2, 1974 in

Cause No. 36858 in the 15th Judicial District Court

of LaFayette Parish, Louisiana for which the Defendant

was sentenced to 5 years, the imposition of which was

suspended for 5 years on the condition that he serve

one year in jail and 5 years on probation (SF 1968-1971,

exhibit 52, SF 2394),

(3) Distribution of marihuana on December 2, 1974 in Cause

No. 37573 in the 15th Judicial District Court of LaFayette

Parish, Louisiana for which the defendant was sentenced

to serve 5 years, the imposition of which was suspended

for 5 years on the condition the Defendant serve one year

in jail and 5 years on probation (SF 1968-1971, exhibit

53A, SF 2395),

(4) Possession of marihuana in Cause No. 36859 on Noverber

26, 1974 in the 15th Judicial District Court of LaFayette

Parish, Louisiana for which the Defendant was sentenced

to serve 6 months in jail (SF 1971-1972), exhibit 63, SF

2526),

(5) Carrying a concealed weapon in Cause No. 37572 in the

15th District Court of LaFayette Parish, Louisiana on

November 26, 1974 for which the Defendant was sentenced

to serve 6 months in jail (SF 1973-1974, exhibit 62, SF

2525).

The State also offered evidence of the Defendant's reputation for

peaceful and lawabiding citizenship. The State proved through the testimony

of John P. Clausen that the Defendant had a bad reputation for peaceful and

lawabiding citi

This text is long and has been trimmed here. Open the source document for the complete record.