# Petition — Barefoot v. Estelle

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 880

## Text

——_—

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 : 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.

- {1 121
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

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 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

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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 * . .

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

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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;
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:

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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

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-

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

A That's right.

Mr. Leitner: The State, Your Honor,
_would submit the juror for cause at this time.

Mr. Brown then examined the witness for the defense and rehabilitated

her (SF IV, 878-879),

Q All right. Mrs. Ayres, you understand that when taking
an oath as a juror, that the judge asks you under oath
to swear that you will follow the law that is given to

you in the case?
A That's right.

Q Now, as part of following the law in the case, you will
be asked to answer certain factual inquiries at the guilt
or punishment stage; you will be asked to determine guilt
or innocence based upon your determination of certain
facts which are incorporated into these questions.

Now, is what you're telling this Court is, even
though--is that you cannot take that oath-~you cannot
take that oath, that you will follow the law?

A Yes. I would take the ceth if I am— you said
I'm asked to follow the law? Yes, I would take
oath and follow what is to be.

Q All right. If the law requires you to make certain
factual determinations, the question that we're trying
to get at here is whether or not your thoughts about
the death penalty would influence these determinations
of fact that you have to make as a juror.

23

A No, I wouldn't be influenced.

After Mr. Brown showed that the prospective juror was qualified
under Witherspoon, subsequent examination by the Court and the State
also revealed that prospective juror Ayers was qualified. The State
then inquired into the subject of the venireperson's legal exemption
because of a child under 10 years of age. Defense counsel objected to
the inquiry and the subject was dropped by the State (SF IV, 884). The
State subsequently established that the prospective juror could not
consider any penalty less than 40 years for the offense of murder and
challenged Mrs. Ayers for cause (SF IV, 897-900) . Mr. Brown attempted
to rehabilitate the prospective juror with an example of a wife who
kills her husband who had been beating her but Mrs. Ayers stated she
could not consider the minimum punishment of 5 years whereupon Mr. Brown
had no objection to excusing the prospective juror (SF IV, 900-905).

The Petitioner also faults trial counsel for agreeing to excuse
several prospective jurors and for failing to attempt to rehabilitate
others who were shown to be disqualified under Witherspoon. The fact
that Applicant's present counsel would not have excused some of the
prospective jurors or would have attempted to rehabilitate others does
not demonstrate incompetency of counsel. The standard of effective
assistance of counsel is "... not errorless counsel and not counsel

judged ineffective by hindsight but counsel reasonably likely to render

and rendering reasonably effective assistance.” MacKenna v. Ellis, 280
F.2d 592, 599 (5th Cir. 1960); Ex Parte Gallegos, 511 S.W.2d 510 (Tex.

Cr. App. 1974). The fact that other counsel would have done differently
is not the test. Williams v. Beto, 354 F.2d 698 (Sth Cir. 1968). The

Applicant also faults trial counsel for failing to object to the State's
questions to prospective juror, Bonnie McIver, as to whether she wanted
to claim her legal exemption for children wnder ten but Applicant gives
trial counsel no credit for cbjecting to and preventing such inquiry to
venireperson Glenda Ayers (SF IV, 8&4).

The Applicant, moreover, would have the assistance of trial counsel
measured solely by his performance on voir dire, The applicable standard,

Trey Merce nomena neereneeree teats eat yee ah aera see

however, against which the sufficiency of an attorney's assistance must
be gauged is the totality of the representation and not just a part
thereof. Chalk v. Beto, 429 F.2d 225 (5th Cir. 1970); Ewing v. State,
549 S.W.2d 392 (Tex. Cr. App. 1977); Ex Parte Prior, 540 S.W.2d 723

(Tex. Cr. App. .976). Counsel for the Applicant does -_ fault trial
counsel for anything that occurred after voir dire and, indeed, cannot
@o so. Considering the totality of the representation, Applicant enjoyed

effective assistance of counsel.
Counterpoint Four

The Applicant next alleges in point number six that he was denied
his rights under the Sixth and Fourteenth Amendments to the Constitution
of the United States for the reason that the trial court failed to
sustain his challenge for cause to several prospective jurors who could
not consider the minimum punishment of 5 years imprisonment for the
lesser included offense of murder and granted a similar challenge by the
State to other prospective jurors. The Applicant appears to complain of
the rulings t» four prospective jurors but a careful reading of the
Applicant's Petition reveals only three to which complaint is made.

The Applicant first argues that the trial court erred in failing to
sustain the Applicant's challenge to prospective juror Johnnie Kopriva
for the reason that he could not consider the minimm pmishment of five
years for the lesser included offense of murder. The record reflects
that upon examination by the State, prospective juror Johnnie Kopriva
clearly stated that he could consider the entire range of punishment for
the lesser included offense of murder (SF III, 380-382). ‘Then upon
examination by the defense, the prospective juror indicated that he
could not consider the minimum punishment and was challenged by the
Gefense (SF III, 403) " Before the Court ruled on the challenge, the
prospective juror was re-examined by the State and given an example of
how the facts may differ in murder cases whereupon the prospective juror
again indicated he could consider the minimm pmishment of five years
for the offense of murder (SF III, 403-407). Upon re-examination by the
Gefense, the prospective juror again re~affimmed that he could consider
the minimm punishment for murder (SF III, 407). It is submitted,
therefore that the Court did not err in overruling the Applicant's
challenge on the basis that prospective juror Kopriva could not consider
the minimm range of punishment for the offense of murder.

13

ore

The Applicant also complains that the Court erred in overruling his

challenge to prospective juror James Smith for the reason that he could
not consider the minimm punishment of 5 years for the lesser included

offense of murder. The record reflects that upon examination by the
State, the prospective juror stated that he could consider the ent..re
range of punishment for the lesser included offense of murder and that
he would let the punishment fit the crime (SF XV, 872-873). Upan questioning
by the defense, prospective juror Smith stated he didn't think he could
consider as little as five years as punishment for the offense of murder
(SF Xv, 903-905). In this regard, Smith stated (SF xv, 904):

I think my answer would have to depend on the

facts in the case involved, would it not? That's

a hard question for me to answer.

After the juror was challenged for cause, the State upon re-examination
gave the prospective juror an example of murder that involved mitigating
circumstances whereupon the prospective juror indicated he could consider
the entire range of punishment for the offense of murder (SF XV, 906-
911). It is submitted, therefore, that the trial court did not err in
overruling the Applicant's challenge on the basis that the prospective
juror could not consider the full range of punishment for the offense of
murder.

The Applicant next complains that the trial court erroneously
sustained a challenge to prospective juror Wilbert Baca for the reason
that the prospective juror Baca could not consider the entire range of
punishment for the lesser included offense of murder. The record reflects
that upon examination by the State, the prospective juror stated that he
could not consider the minimm punishment of five years for the offense
of murder and was challenged by the State (SF IX 2389-2391). Upon
eitndnatten toy tia Qvbean it was explained that the offense of murder
might include the facts of a mercy killing whereupon the prospective
juror stated that he thought he could consider the entire range of
punishment (SF IX, 2393-2395) upon re-examination by the State and by
the Court, the prospective juror again stated that he could not consider
the minimm of five years for the offense of murder (SF IX, 2396-2398):

Q Okay. Now, Mr. Baca, in the State of Texas, if the

case intentionally and knowingly took the life of
another individual, do you feel like that you could

14

consider assessing his punishment of as low as five
years in the Texas Department of Corrections in a
proper case where the facts justified it and the cir-
cumstances warranted it, because only you can answer
that, so we've got two answers here, and is that

question clear to you?

Yes, sir.

All cight.
I just believe that life is worth more than five years.

And however you believe, Mr. Baca, that's according to
you.
A That's the way I feel. Now, I may not understand the

question just exactly, but I feel like it's worth
more than five years.

Q All right, sir. Now, Mr. Baca, if you feel like that
a human being's life is worth more than five years,
that's your business and nobody else's.

A Right.

Q I don't want to, you know, belabor the point, Mr. Baca,
and, gosh, I don't want to make you feel like we are
just cross examining this thing, but—

A I understand.

0 Fy OD »Y

Q
pry feel like that's enough punishment for samebody that

I don't think five years is enough.
The Court: Mr. Baca, I hate to
interrupt you, but, we have to have an wmequivocal answer.
The Juror: Yes, sir.

The Court: I realize what you think
and I appreciate your opinion and respect it. Could you
ever consider assessing five years in a case where a person
had been convicted of a murder?

The Juror: No. I don't believe.

The Court: All right. I will sustain
the State's challenge. You're exused for cause.

"Mr. Eads: Thank you very much, Mr.
Baca.

The Court: ‘Thank you very much, Mr. Baca.
I appreciate your frankness and I sure appreciate your patience.

It is submitted that the Court did not err in excusing the prospective
juror. The Applicant, moreover, did not object to the Court's ruling
"and any error in excusing the juror was waived.

The Applicant further alleges that the record reflects that the
State's challenge to prospective juror Baca was “considered under a more
liberal standard than that applied to Barefoot's challenges.” A careful
reading of the record in this regard shows otherwise.

Counterpoint Five

The Applicant next alleges in point seven that "the entire voir
dire examination, under the totality of the circ.mstances, was designed
to and did produce a jury organized to return a punishment verdict of
death, contrary to the mandate of Witherspoon v. Illinois, 391 U.S. 510
(1968) and in violation of the sixth, eighth and fourteenth amendments

to the constitution of the United States."

Witherspoon held that a jury is organized to return a verdict of
death when prospective jurors are disqualified form jury service simply
because they have conscientious objections to the death penalty. The
verdict of a jury so selected does not reflect the expression of the
commmity. In the case at bar, however, no prospective juror was wrongfully
excluded in violation of Witherspoon and the resulting jury was thus not
organized to return a punishment of death.

Counterpoint Six

The Applicant next alleges in points of error eight, nine and ten
that the psychiatric testimony that the Applicant would likely commit
future acts of criminal violence which was based solely upon hypothetical
questions that contained only the aggravating evidence, none of the
mitigating evidence and no "medical, psychiatric or psychological facts
of{ history” was so wnreliable that Applicant was deprived of due process
of law and subjected to cruel and wusual punishment.

The facts in brief are as follows:

On August 25, 1978, the State filed a motion for a mental examination
of the Appliant to qualify expert psychiatric witnesses to testify at
trial on the issue whether there is a probability that the Applicant
would commit criminal acts of violence that would constitute a continuing
threat to society (TR 25). The Applicant answered the State's motion
(TR 41) opposing the same and after a hearing on the motion, the motion
by the State was denied. On October 6, 1978, twenty-four days before
the jury selecticn process began, the State filed notice on the Applicant
that the State intended to offer expert psychiatric opinion at the

punishment phase of the trial (TR 90) and Petitioner filed a motion to
test the qualifications of the State's expert witnesses outside the~
presence of the jury (TR 202-203). The Applicant's motion was granted
on October 18, 1978 (TR 203) and a hearing was held outside the presence

i Gin Seas gates We Oni witlony ot 0, ttn Che. fe
Holbrook.

At the hearing outside the presence of the jury, both doctors
testified that they are licensed by the State of Texas to practice
medicine and are self employed psychiatrists, that they graduated from
Southwestern Medical School, that they completed their internship at
Baylor University Medical Center at Dallas and that they completed their
psychiatric residence at Timberlawn Hospital in Dallas (SF 2011-2012,
2045-2046). Dr. Grigson further testified that he taught psychiatry
full time at Southwestern Medical School for four years and was a consultant
to the Terrell State Hospital for two years, Texas Women's University
Health Center for two years and the Dallas County Health Department for
three years (SF 2012). Dr. Grigson further testified that he is certified
in the field of psychiatry by the American Board of Nuerology and Psychiatry,
that he has been in private practice for twelve years, and that during
the course of his practice of psychiatry he has examined thousands of
individuals charged with felony crimes and of which approximately 400
were charged with murder (SF 2013). Dr. John Holbrook testified further
that he was employed as the Chief of Psychiatry of the Texas Depariment
of Corrections for five years, that he has published a number of articles
in the field of psychiatry and that during the course of his practice of
psychiatry, he has examined approximately 12,000 persons charged or
convicted of criminal offenses (SF 2046-2049).

Both Dr. Grigson and Dr. Holbrook testified that they did not
examine the Applicant (SF 2014, 2063). Both experts testified, however,
that given sufficient facts, they could state an opinion within reasonable
medical certainty whether or not an individual would probably comit
future acts of criminal violence that would constitute a continuing
threat to society without examining that individual (SF 2015-2016,

2051).
Both doctors were asked a hypothetical question (SF 2016-2031) that
included the fact that the Applicant enjoyed a bad reputation for

peaceful and law abiding citizenship spanning nine prior years in five
states (SF 2018-2019), the fact that the Applicant was convicted in
Louisiana in 1974 for the offense of distribution of marihuana, possession
of marihuana, possession of methamphetamine and carrying a concealed
weapon and in 1975 in Oklahoma for the offense of possession of an
unregistered firearm (SF 2017-2018), the fact that seven months before
the offense on trial, Applicant escaped from jail in New Mexico while
awaiting trial for the offense of rape of a child (SF 2025) and the
brutal facts of the offense on trial for which the Applicant showed no
remorse. After hearing the hypothetical question, both Dr. Grigson and
Dr. Holbrook testified that assuming those facts to be true they could
give an opinion within reasonable medical certainty whether there is a
probability that the Applicant would commit criminal acts of violence
that would constitute a continuing threat to society. The court found
the medical experts qualified and after the hypothetical question was
asked them in the presence of the jury, they testified that the Applicant
was a criminal sociopath and that it is probable that the Applicant
would commit criminal acts of violence that constitute a continuing
threat to society (SF 2128-2131, 2097-2101).

The Applicant first argues that psychiatric evidence on the issue
of dangerousness is inherently unreliable even when based upon a personal
examination of the accused. This argument was considered and rejected
on direct appeal of this cause. Barefoot v. State, 596 S.W.2d 875 (Tex.

Cr. App. 1980). Moreover, in Jurek v. Texas, 428 U.S. 262 (1976), the
Supreme Court approved the use of psychiatric testimony on the issue of
dangerousness in capital cases. In Estelle v. Snith, _—-U.S.
(1981), moreover, the Applicanttargument that psychiatric evidence is
inherently unreliable was a threshold question rejected by implication..:

The Applicant next argues that if psychiatric testimony based upon
personal examination is not inherently unreliable it becomes so if based
on hypothetical questions containing only the aggravating evidence, none
of the mitigating evidence and “no medical, psychiatric or psychological
facts or history and no technical material.”

The rule is well established that an expert witness may state an -
opinion based soley upon facts assumed as true in a hypothetical question
without having personally performed any examination Logsdon v. Baker,

517 F.2d 174 (Dist. Col. 1975); Carroll v. Magnolia Petroleum Co., 223
F.2d 657 (Sth Cir. 1955); Barefoot v. State, 596 S.W.2d 875 (Tex. Cr.
App. 1976); Atkinson v. State, 511 S.W.24 293 (Tex. Cr. App. 1974). ‘The
facts assumed as true in the hypothetical questions take the place of
the facts acquired through personal examination by the expert. The
Applicant complains, however, that the testimony of the psychiatrists
were so unreliable that it violated due process of law because the facts
assumed as true in the hypothetical question contained only the aggravating
evidence, none of the mitigating evidence and “no medical, psychiatric
or psychological facts or history and no technical material.” As to the
lack of mitigating evidence in the hypothetical questions asked by the
State, the Applicant fails to point out what mitigating evidence the
State should have included. The rule is well settled, moreover, that a

hypothetical question need not embrace all of the facts in evidence but
may embrace only those facts in accordance with the proponent’s theory
of the case. If the opponent desires to solicit the opinion of the
expert upon a different set of facts, he is entitled to do so on cross-
elimination. Woods v. State, 569 S.W.2d 901 (Tex. Cr. App. 1978);
Atkinson v. State, 511 S.W.2d 293 (Tex. Cr. App. 1974); Jones v. State,
44 S.W.2d 710 (Tex. Cr. App. 1931). The Applicant knew well in advance
of trial, moreover, that the State intended to present psychiatric
evidence on punishment through the use of hypothetical questions. After
the State's motion for psychiatric examination on punishment issues (TR
25) was overruled, the State filed written notice (TR 90) on October 6,
1978, 24 days before jury selection began, that the State intended to
present psychiatric testimony at the punishment phase of the trial. In
response to the State's notice, the Applicant filed a motion to test the
qualifications of the State's expert witnesses outside the presence of
the jury (TR 202-203) which said motion was granted.
Contrary to the Applicant's assertion, moreover, the psychiatrists
did testify on the basis of medical, psychiatric and psychological facts
known to them about the Applicant The facts presented to an expert to
assume as true in a hypothetical question take the place of a personal
examination and provide the expert with sufficient information about the
subject to qualify him to state an opinion. In this case, both psychiatrists
were asked a lengthy hypothetical question in which they were asked to

assume as true the fact that the Applicant enjoyed a bad reputation for
peaceful and law abiding citizenship in five states spanning nine years,
the fact that the Applicant previously had been convicted in Louisiana
in 1974 for the offenses of distribution of marihuana, possession of
marihuana, possession of methamphetamine and carrying a concealed weapon
and in Oklahoma in 1975 for the offense of possession of an unregistered
firearm, the fact that the Applicant escaped from jail in New Mexico
while awaiting trial for the offense of rape of a child and the facts of
the offense on trial including the Applicant's conduct before, during
and after the killing of Officer Levin. After hearing the hypothetical
question, both psychiatrists testified that assuming those facts to be

true, they could state an opionion whether there was a probability that
the Applicant would commit future acts of criminal violence that would
constitute a continuing threat to society. The Applicant did not call
an expert witness to testify that he could not state an opinion om the
information assumed to be true.
Counterpoint Seven

In his eleventh point of exret, the Applicant alleges that Article
37.071 V.A.C.C.P. violates the Sixth, Eighth and Fourteenth Amendrents
to the United States Constitution “because it contains no provisions for
directing and instructing the jury's consideration of mitigating circumstances
at the punishment phase of the trial and is heavily weighed in favor of

the State by focusing the jury's consideration on the aggravating circumstances."
The Applicant alleges that evidence was introduced that the Applicant

was intoxicated or under the influence of morphine at the time of the

offense and that the Court erred in not submitting this "possibly mitigating

evidence” to the jury on either the “deliberate” or “future dangerousness"

penalty issues. Counsel for Applicant does not favor us with a reference

to the record where such evidence will be found but assuming such evidence

was introduced, the jury was instructed to consider it. The record

reflects (TR 366) that the Court instructed the jury on punishment as

follows:

Article 37.071 V.A.C.C.P. provides, moreover, that at the punishment
phase of a capital murder case, “evidence may be presented as to any
matter that the Court deems relevant to sentence.” The Texas Court of
Criminal Appeals has consistently construed this provision to allow the
introduction of any relevant evidence in mitigation of punishment. No
evidence offered by the Applicant in mitigation of punishment was
rejected by the trial court in this case. A special instruction to the
jury singling out mitigating evidence for their consideration is not
required for a fair determination of the punishment issues. Such an
instruction was not requested by trial counsel and any error in failing
to specially instruct the jury on the consideration of mitigating evidence
was, therefore, waived. It should be pointed out, moreover, that no
special instruction singling out aggravating circumstances for the
jury's consideration was submitted. The singling out of mitigating or
aggravating evidence by the Court for the jury's consideration would
amount to a comment on the weight of the evidence and truly violate the

defendant's right to a fair determiniation of the issues.

Vv.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, the State prays that the Applicant's

Petition For Writ Of Habeas Corpus be and in all things denied.
Respectfully submitted,

G2okeh CPAs tn

Ralph Petty, Jr.
Assistant District Attorney

Bell County District Attorney's Office
P. O. Box 540

Belton, Texas 76513

AC 817 939-3521 Extension 357

Bar I.D. #15866500

CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the State's
Answer to Applicant's Petition For Writ Of Habeas Corpus has been sent
by certified mail to the Attorney of Record in this cause, Mr. Will
Gray, P. O. Box 613, Simonton, Texas, 77476, on this the 6 YN day

of October, 1981. “

Geoteh Catiel

Petty, Jr.
Assistant District Attorney

2?

aN 2H UNILEYV SIAC VAS insll CUR
YOR THE WESTERN DISTRICT OF TEXAS ‘3
WACO DIVISION DEC 8 1982

CHARLES W. VAGNER, Clerk

THOMAS A. BAREFOOT, 5 By Deputy
Petitioner 5
§ ‘
vs. § CIVIL ACTION NO. W-81-~CA-191
§
W. J. ESTELLE, JR., §
Respondent §
ORDER

CAME ON to be considered this day Respondent's Motion
to Vacate Stay of. Execution; and the Court, having considered
the Motion, is of the opinion that it has merit and should
be granted.

‘The Court entered a stay of execution in this cause on
October 9, 1981, pending further order of the Court, so that
the Court might have a full and fair opportunity to consider
the merits of Petitioner's claims. The Court has considered
those claims and in orders entered November 12, 1981, found
them all to be without merit. The purpose for which this
stay of execution was originally entered, therefore, no longer
exists. Accordingly, it is hereby ORDERED, ADJUDGED, and
DECREED that Petitioner's stay of execution should be, ard
the same hereby is, VACATED.

IGNED.and ENTERED this day of December, 1982,

ee Ae oe

Upited BUNTON
hited States District Judge

at , Texas.

NO. 82-1680

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THOMAS A. BAREFOOT,

W. J. ESTELLE,

Petitioner-Appellant

JR.,

Respondent~-Appellee

On Appeal From The United States District Court
For The Western District Of Texas, Waco Division

RESPONDENT'S RESPONSE TO PETITIONER'S
MOTION FOR STAY OF EXECUTION

JIM MATTOX
Attorney General of Texas

GILBERT J. PENA
Assistant Attorney General
Chief, Enforcement Division

DOUGLAS M. BECKER
Assistant Attorney General

P. O. Box 12548, Capitol Station
Austin, Texas 78711
(512) 475-3281

ATTORNEYS FOR RESPONDENT~APPELLEE

STATEMENT REGARDING ORAL ARGUMENT

This is an appeal from an order denying an application
for writ of habeas corpus brought by a state prisoner under
28 U.S.C. §2254. Petitioner is now incarcerated on Death Row
in the Ellis Unit of the Texas Department of Corrections.

He is scheduled to be executed sometime before sunrise on
January 25, 1983.

In his effort to convince the Court that his appeal
presents a substantial issue, Petitioner raises only one issue
that is properly before the Court: the use of expert psychiatric
testimony, based solely upon hypothetical questions, presented
by the prosecution at the punishment stage of his bifurcated
trial. Respondent, fully aware of the importance of the
case, believes that the Court need only study the opinion of
the district court and the briefs of the parties to conclude
that no substantial issue is presented. Oral argument, therefore,
is not requested. If the Court nevertheless believes that
oral argument is appropriate, Respondent would welcome the
opportunity to further explicate why denial of Petitioner's
motion for stay of execution in this case is in the interest

1/

of justice.

1/ Respondent has learned that oral argument has been
set for January 19, 1983, in Houston, Texas.

NO. 82-1680

IN THE
UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

THOMAS A.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1365%3A01. Public record. Not legal advice.