Petition for Writ of Certiorari — Texas v. Wilkens

92-1318 | FtreD

poe 1993

| GFFice OF THE CLER |

In The

Supreme Court of the United States

October Term, 1992

S

THE STATE OF TEXAS,

Petitioner,

JAMES JOSEPH WILKENS, JR.,

Respondent.

*

Petition For Writ Of Certiorari

To The Court Of Criminal Appeals

For The State Of Texas

S

PETITION FOR WRIT OF CERTIORARI

S

Jack SKEEN, JR., Amy R. BtLatock, Assistant

Criminal District Attorney Criminal District Attorney

403 Smith County 403 Smith County

Courthouse Courthouse

Tyler, Texas 75702 Tyler, Texas 75702

903/535-0520 903/535-0520

Counsel of Record

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 42-2831

QUESTIONS PRESENTED FOR REVIEW

(1) Did the Texas Court of Criminal Appeals misap-

ply this Court’s holding in Buchanan v. Kentucky when it

held that a criminal defendant does not waive his Fifth

Amendment right to silence with respect to the admission

of psychiatric testimony concerning future dangerousness

during the punishment stage of a bifurcated capital mur-

der trial when he requests pre-trial psychiatric examina-

tions and presents testimony in support of his claim

during the guilt/innocence stage of the trial?

(2) Did the Texas Court of Criminal Appeals misap-

ply the harmless error analysis of Chapman v. California

and Satterwhite v. Texas by ignoring the critical evidence

admitted during the guilt/innocence phase of the trial?

ii

PARTIES TO THIS PROCEEDING

The names of the parties to this proceeding are as

follows:

1.

Jack Skeen, Jr., Criminal District Attorney, Smith

County, Texas; Amy R. Blalock, Assistant Criminal

District Attorney, Smith County, Texas, 403 Smith

County Courthouse, Tyler, Texas 75702 (Petitioner)

James Joseph Wilkens, Jr., TDCJ# 000897, Texas

Department of Criminal Justice, Institutional Divi-

sion, Ellis I Unit, Huntsville, Texas 77343 (Respon-

dent)

Hunter Brush, 401 East Front, Suite 131, Tyler, Texas

75702 (Attorney for Respondent)

wae

TABLE OF CONTENTS

Page

Questions Presented for Review ............-.+++: i

Parties to This Proceeding...............-.seeeeeee ii

acpi vectecesasossscesurtevseces iii

Oe ee eee iv

Opinions Below ...........-. 5.0 cece eee e renee eens 1

Statement of Jurisdiction. ................5-ee seen 2

Constitutional Provisions Involved in the Case..... 2

I eras ce sasasenceceewoneues 3

Reasons For Granting the Writ...............++++:. 6

Conclusion and Prayer .............-ssseee eee eeeee 27

Appendix:

Opinion of the Court of Criminal

Appeals. ........... 0 ccc cece eee eceneeeece App. 1

Order Overruling State’s Motion for

eee eee eee App. 16

iv

TABLE OF AUTHORITIES

Page

CASES

Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981)...7, 13, 14, 16

Beathard v. State, 767 S.W.2d 423 (Tex. Crim. App.

Buchanan v. Kentucky, 107 S. Ct. 2906 (1987)

Pe Er he rer rT ee Tr fr 6, 7, 11, 12, 16

TODD. occ cnc dcncevecwcncvctbesunerancecseesousons 25

Chapman v. California, 386 U.S. 18 (1967) ...... 6, 16, 17

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ....-- 18, 19

Estelle v. Smith, 101 S. Ct. 1866 (1981).........--- 15, 16

Holloway v. State, 691 S.W.2d 608 (Tex. Crim. App.

<<" IIE EME eR Re ree eer ttc yore 21

Kunkle v. State, 771 S.W.2d 435 (Tex. Crim. App

| rernerrorrrr: Serer rrer rr eths Loo 21

Landry v. State, 706 S.W.2d 105 (Tex. Crim App.

oc cs 1a ti yanaen baste aes ay MAMAN CURR SEN ETS 21

Michigan v. Long, 463 U.S. 1032 (1983).....---+-++++: 17

Milton v. Wainwright, 407 U.S. 371 (1972).......----- 18

Miranda v. Arizona, 86 S. Ct. 1602 (1966) ......------- 7

Mitchell v. State, 650 S.W.2d 801 (Tex. Crim. App.

|. err rrrcrer rr Tree tr ce ero 25

Penry v. State, 691 S.W.2d 636 (Tex. Crim. App.

1985), cert. denied, 106 S. Ct. 834 (1986) .......---- 15

Powell v. Texas, 109 S. Ct. 3146 (1989) ..7, 11, 12, 13, 16

Pyles v. State, 755 S.W.2d 98 (Tex. Crim. App. 1988) .... 20

Rose v. Clark, 478 U.S. 570 (1986). .....---- +e eee eee: 18

Vv

TABLE OF AUTHORITIES - Continued

Page

Satterwhite v. Texas, 486 U.S. 249 (1988).......... passim

Schneble v. Florida, 405 U.S. 427 (1972).............-. 18

Strickland v. Washington, 466 U.S. 668 (1984)......... 19

United States v. Cohen, 530 F.2d 43 (5th Cir.), cert.

Roted, OF S. Gh. TOO TIBI OR ono 6 bss eres ceacccaicnes 14

Wilkens v. State, No. 70,136, slip op. (Tex. Crim.

App. June 10, 1992) ..........--..eeeee. % 04, 72, 7

Williams v. State, 668 S.W.2d 692 (Tex. Crim. App.

| rrr errr rT re rer renner Tre rey. 25

STATUTES

2B BGC. G TFGA) «os cccinsnncdsctivenccesenssnccees 2

Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon

Supp. 199Z) 0.0.0 ccecsccccvsvesevecvceecsese sees 5, 6

CONSTITUTION

tk mas ee ee eererrrerr eT 7; 11, 12.476

ifRmae | SO, ererrrr rr errr ee 16

$8 Base) oe Se) . Sere reermtret eer are 2

*

In The

Supreme Court of the United States

October Term, 1992

P *

THE STATE OF TEXAS,

Petitioner,

JAMES JOSEPH WILKENS, JR.,

Respondent.

¢

Petition For Writ Of Certiorari

To The Court Of Criminal Appeals

For The State Of Texas

S

PETITION FOR WRIT OF CERTIORARI

e

Petitioner, the State of Texas, respectfully prays that a

writ of certiorari issue to review the judgment and opin-

ion of the Court of Criminal Appeals for the State of

Texas entered in this proceeding on November 4, 1992.

*

OPINIONS BELOW

The opinion of the Court of Criminal Appeals of

Texas is reprinted in the appendix to this petition. This

opinion is scheduled for publication after the mandate is

1

-

released, but to date it has not been published. This is the

only decision in this cause.

STATEMENT OF JURISDICTION

The opinion and judgment of the Court of Criminal

Appeals were entered on June 10, 1992. A timely motion

for rehearing of that decision was overruled on Novem-

ber 4, 1992. The decision to deny rehearing is reprinted in

the appendix to this petition.

The jurisdiction of this Court is invoked under 28

U.S.C. Section 1257(a). This petition is timely filed pur-

suant to United States Supreme Court Rule 13.

¢

CONSTITUTIONAL PROVISIONS

INVOLVED IN THE CASE

The Fifth Amendment provision that “no person

shall be compelled in any criminal case to be a witness

against himself”, which applies to Texas through the

Fourteenth Amendment, is involved in this case. Also,

the Sixth Amendment provision that “[iJ]n ail criminal

prosecutions, the accused shall enjoy the right . . . to have

the assistance of counsel for his defense”, which applies

to Texas through the Fourteenth Amendment, is impli-

cated in this case.

a

STATEMENT OF THE CASE

A. Statement of the Facts

The evidence in this case revealed that the respondent

and Sandra Williams met in July 1986 at the Pitt Grill where

she was a waitress and he was a cook (SF XXIV-60). Sandra

lived with friends, and the respondent lived with a man

named Richard Wood (SF XXIV-64). Sandra and the respon-

dent started dating each other and soon thereafter the

respondent moved into Sandra’s trailer house (SF XXIV-61).

Their relationship quickly soured, however, when the

respondent became extremely jealous of Sandra’s little boy,

four year old Larry McMillan, Jr. The respondent was even

more jealous of Sandra’s friendship with Richard Wood, the

respondent’s former roommate (SF XXIV-78-81). The respon-

dent also became angry because Sandra injured herself at

work and she depended on the respondent for assistance in

dressing and bathing (SF XXIV-76). The respondent moved

out of the trailer house (SF XXIV-82). The respondent’s feel-

ings for Sandra did not end with the cessation of their

relationship, however. The respondent continued to have

jealous feelings about Sandra and Richard. The respondent

repeatedly tried to visit Sandra (SF XXV-16). She observed

him driving around the trailer park (SF XXV-19). He made

threats against both Sandra and Richard (SF XXIV-88). In the

meantime, Sandra discovered that she was pregnant by the

respondent (SF XXIV-93). At one point the respondent

slapped Sandra and told her he would make sure she didn’t

have the baby (SF XXIV-90; XXV-13).

Just after Christmas on December 27, 1986, Richard,

Sandra, and young Larry returned from a trip to

Arlington, Texas, where they retrieved Larry from his

grandmother’s home. They arrived in Tyler at approx-

imately 9:22 p.m. that evening. Sandra carried Larry into

the house and placed him on a couch (SF XXIV-114).

Sandra went to the bathroom. As she was standing in the

bathroom, she noticed the respondent hovering near her,

holding a rifle (SF XXIV-119). She screamed and ran out

the front door of the trailer (SF XXIV-121). As she ran out

the trailer, she passed Richard in the hallway and he told

her to get help (SF XXIV-122). Sandra heard two or three

shots go off as she was running out the door and saw

Richard fall to the ground (SF XXIV-122). As she was

trying to flee to the neighbor’s house for help, the

respondent shot her in the back (SF XXIV-125). Sandra fell

down.

At that time, she heard little Larry screaming from

the trailer (SF XXIV-127). Despite the fact that she had

been wounded, Sandra got up and ran back to the trailer.

The respondent turned from where he was standing,

pointed the gun at Sandra, and shot her again (SF

XXIV-129). From where Sandra was sprawled on the

ground, wounded from the two blasts, she heard her

young son “screaming like he had never screamed

before” (SF XXIV-130). Sandra feigned death, hoping that

the respondent would leave (SF XXIV-130). Instead, she

heard between six and eight shots fired from the gun (SF

XXIV-131). Larry was silent after that (SF XXIV-132).

Sandra survived the attack, but she suffered thirteen

perforations of her small intestine (SF XXIV-48).! Larry

and Richard died. A pathologist who performed autop-

sies on the bodies, Dr. V.V. Gonzalez, later testified that

1 Miraculously, the bullet did not injure Sandra’s uterus or

the fetus (SF XXIV-48).

Wood had been killed by a gunshot wound to his face (SF

XXVIII-111, 112). Dr. Gonzalez testified that Larry had

been killed by multiple gunshot wounds to his chest and

eyebrows (SF XXVIII-140). Dr. Gonzalez estimated that

Larry had been shot at least six times but possibly as

many as eight times (SF XXVIII-134-135). The spray of the

ammunition apparently made an exact determination of

the number of wounds impossible.

The respondent pled not guilty by reason of insanity.

The two doctors who examined him before the trial deter-

mined that he was competent for purposes of trial. The

jury subsequently convicted the respondent of capital

murder. The jury also returned answers of “yes” to the

special issues required by Article 37.071, Texas Code of

Criminal Procedure. Because of these answers, the trial

court assessed the mandatory death penalty.

B. Course of Proceedings and Disposition in the

Courts Below

The Court of Criminal Appeals reversed the respon-

dent’s conviction in Wilkens v. State, No. 70,136 (slip op.)

(June 10, 1992) (attached as Appendix “A”). The State

filed a motion for rehearing, which was denied on

November 4, 1992 (attached as Appendix “B”). Aithough

the only error in the trial was contained in the punish-

ment phase, the laws of Texas require that the entire case

must be retried.

REASONS FOR GRANTING THE WRIT

The Court of Criminal Appeals reversed the death

sentence of the respondent for the murders of Richard

Wood and Larry McMillan, Jr. because the Court deter-

mined that the testimony of Dr. Tynus McNeel and Dr.

Tom Allen should not have been admitted during the

punishment phase of the trial. The doctors interviewed

the respondent before the trial started because the

respondent contended that he was not competent to stand

trial and he requested these interviews. Both doctors

testified during the guilt /innocence phase of the trial and

the punishment phase of the trial. Their testimony in the

punishment phase of the trial addressed the respondent's

potential for future dangerousness.?

This decision warrants review by this Court for two

reasons. First, the Court of Criminal Appeals misapplied

this Court’s holding in Buchanan v. Kentucky, 107 S. Ct.

2906 (1987). Second, the Court of Criminal Appeals mis-

construed the harmless error doctrine of Chapman v. Cali-

fornia, 386 U.S. 18 (1967) and Satterwhite v. Texas, 486 U.S.

249 (1988).

2 One of the special issues in Article 37.071, Section 2(b)(1),

is whether “there is a probability that the defendant would

commit criminal acts of violence that would constitute a con-

tinuing threat to society”.

7

ARGUMENT AND AUTHORITIES

I. IN DETERMINING THAT THE ADMISSION OF

PSYCHIATRIC EVIDENCE DURING THE SEN-

TENCING PHASE OF THE TRIAL ON THE ISSUE

OF FUTURE DANGEROUSNESS WAS ERROR,

THE TEXAS COURT OF CRIMINAL APPEALS MIS-

APPLIED THIS COURT’S HOLDING IN

BUCHANAN V. KENTUCKY.

The Texas Court of Criminal Appeals recently

reversed the death sentence given to the respondent,

largely on the basis of Buchanan v. Kentucky, supra and

Powell v. Texas, 742 S.W.2d 353 (Tex. Crim. App. 1987),

vacated and remanded, 108 S. Ct. 2891 (1988), aff'd, 767

S.W.2d 759 (Tex. Crim. App. 1989), rev'd, 109 S. Ct. 3146

(1989). The opinion also cites Battie v. Estelle, 655 F.2d 692

(Sth Cir. 1981). The genesis of these cases is Estelle v.

Smith, 101 S. Ct. 1866 (1981), in which this Court first held

that a defendant’s Fifth Amendment right to silence is

violated when he is interviewed by mental health profes-

sionals without receiving a Miranda warning.*

The respondent in this case claimed initially that he

was mentally incompetent to stand trial; once he was

found competent and the trial proceeded, he then offered

an insanity defense throughout the trial (T-18; T-33; T-44;

SF XXX-14). Before the trial, the respondent requested

two examinations by mental health experts (T-18). These

professionals determined that the respondent was compe-

tent to stand trial and that he was sane at the time of the

offense. Consequently, the State called both experts to

testify during the guilt/innocence stage of the trial and

also at the punishment stage of the trial. Their testimony

during the guilt/innocence phase of the trial centered on

the issue of the respondent’s sanity. Dr. McNeel, a

3 See Miranda v. Arizona, 86 S. Ct. 1602 (1966).

a

psychiatrist, testified that the respondent was sane at the

time of the offense. The respondent told Dr. McNeel

4 The following are excerpts from psychiatrist Dr. Tynus

McNeel’s testimony at the guilt/innocence phase of the trial:

“Q [by Mr. Henry] Did you ask him anything about the child

that was shot?

A I asked him about the child and his response was, ‘They

said Larry got shot also’. That was the four-year-old son

of the woman, I believe. And then he said, ‘I don’t

remember shooting Larry’ ” (SF XXXI-13).

“Q [by Mr. Henry] What types of things was he talking to

you about?

A ....1 then asked him if he would do this all over again if

he had an opportunity and he said, ‘I don’t know,’

unquote. He said, ‘I think probably not’. He said, ‘I want

them to kill me,’ unquote. ‘I’m tired of hurting,’ unquote.

And that was the end of the conversation.

Now, Doctor, he told you about hearing these voices?

Yes, sir.

Now, can you tell us whether or not in your area of

expertise can you tell us whether or not you believe the

Defendant was being truthful to you about having these

hallucinations?

A No, my opinion is that he was not being truthful about

having hallucinations and hearing these kind of voices at

the time.

....Why do you say that he was not being truthful about

these hallucinations?

A Weli, for a variety of reasons. One is that he didn’t bring

these up at the time he was telling about the actual

shooting. This was sometime later in the conversation,

almost like an afterthought. Another reason is that these

things that he says he heard don’t really make much

sense to me... . Other reasons are that when you think of

a person with a mental illness that is severe enough to

have auditory hallucinations where they actually hear

voices or see things that are not there or hear things that

are not there. . . . you think of a diagnosis of

Or”

that he did not remember shooting the boy, and also that

“voices” compelled him to commit the crime. Dr. McNeel

further testified that he doubted the respondent’s truth-

fulness. Dr. Thomas Allen, a psychologist, also testified

that the respondent was legally sane at the time of the

offense. He further testified that the respondent tried to

mislead him and that the respondent was manipulative.°

“Q

schizophrenia. . . . So, there is no evidence . . . that he had

had an illness . . . called schizophrenia or anything close

to that type of diagnosis where a person would have

auditory hallucinations” (SF XXXI-15-17).

5 The following is from Dr. Thomas Allen’s testimony:

[by Mr. Henry] What did you find to be the main theme

of the Defendant’s conversation with you? What was he

talking about mostly?

. ... There was what I called in my report a theme of

self-pity and projected anger and blame, blaming every-

body and taking no responsibility himself. . . . ” (SF

XXXI-75).

And you gave the Defendant [sic] MMPI test?

Correct.

Now, what did he do on that test?

Well, he produced an invalid profile because of the exag-

geration of psychopathology.

What did you conclude from that?

That, number one, the test is invalid because he wasn’t

honest on it.

Well, why was it invalid? In what way was he not hon-

est?

He told - he responded in a way which emphasized a lot

of inconsistent, irrational and exaggerated complaints.

He produced elevations on all eight clinical scales. His

complaints were hypochondriacal. They were depressed.

They were histrionic. They were psychopathic. They

were paranoid. They were schizophrenic. If he were as

sick as the profile would suggest, if I believed the profile,

———————— xen ee

10

This testimony was introduced during the guilt/inno-

cence stage of the trial. At the punishment phase of the

>O?rO >}

1 mean, he wouldn’t be able to crawl. I mean, that’s

extremely sick. And statistically people scoring in that

range that he scored in don’t produce that kind of profile

by chance. He answered questions in a way which exag-

gerated illness, both medical and psychological. He

answered a lot of items on what is termed the F scale

which are very strange which people don’t ordinarily

answer true to. Items, if I can use an analogy, like my

teeth itch, true.

... So are you saying that you concluded from that test

that the Defendant was exaggerating or giving you or

showing you symptoms of mental illness that couldn't

possibly have been there?... .

What I concluded was he answered the test in a way that

he hoped would make him look sick, mentally ill.

Did it?

No.

Okay. Why not?

Because even people who are mentally ill don’t produce

profiles that are that elevated. If they can read the items,

they do not produce profiles that are that elevated.” (SF

XXXI-81-82).

What does that tell you?

It tells me the way he answered the test was prepos-

terous. He was not being honest with me. He was report-

ing things that do not exist, everything from I have a

tummy ache to evil spirits possess me. Every possible

complaint on that test he answered true, I have that.

Now, based on your testing and your interview with the

Defendant and his talk of hallucinations and his test results,

what was the Defendant trying to do with you?. ...

Well, I believe that in terms of presenting an honest picture

to me, he was being manipulative. . . . The point I made in

my report was that my opinion is his behavior is not driven

by hallucinations or delusions. It’s not driven by voices that

he hears. It’s driven by his desire to be manipulative, to take

11

trial, both doctors testified that the respondent would

constitute a continuing threat in the future.

The Court of Criminal Appeals concluded that the

testimony by the two mental health professionals at the

punishment phase of Wilkens’s trial violated his Fifth

Amendment rights against self-incrimination.© Wilkens,

supra at 11. Although Powell and Buchanan do not directly

address the narrow issue in the present case, the Court of

Criminal Appeals concluded that these cases indicate that

a “lack of notice and a lack of waiver by the appellant at

the punishment phase [of a capital murder trial] also

violate[s] appellant’s Fifth Amendment rights at the pun-

ishment phase”. Wilkens, supra at 8. The Court of Criminal

Appeals also noted that “the State cannot use an expert

who has examined the defendant for sanity and compe-

tency to testify to future dangerousness on the basis of

advantage of people. . . . He will tell lies to get what he

wants. He will break the rules. He cannot - he does not

conform his behavior to social rules and conduct, not

because he can’t but because he doesn’t want to. He will take

advantage of people. He will take advantage of people who

try to help him. He will take advantage of people he doesn’t

even know” (SF XXXI-83-85).

“Q Now, how do you characterize this Defendant?. .. .

A I characterize him as an antisocial personality”. . . . (SF

XXXI-86-87).

“Q___Did you talk to the Defendant about the child? When you

asked him about shooting the child, what did he say to

you about that?....

A Nothing” (SF XXXI-90-91).

6 This Court determined that the appellant waived his Fifth

Amendment right regarding the mental health testimony during

the guilt/innocence stage of the trial. Wilkens, supra at 7.

12

that examination absent a defendant’s waiver of his Fifth

Amendment privilege at the punishment phase”. Wilkens,

supra at 11.

The decision reached by the Court of Criminal

Appeals is erroneous, however, for several reasons. First,

the Court of Criminal Appeals has misapplied the hold-

ings of Powell and Buchanan. In Buchanan, supra, this

Court set forth the following proposition: “if a defendant

requests such an evaluation or presents psychiatric evi-

dence, then, at the very least, the prosecution may rebut

this presentation with evidence from the reports of the

examination that the defendant requested. The defendant

would have no Fifth Amendment privilege against the

introduction of this psychiatric testimony by the prosecu-

tion”. Buchanan, supra at 2917-2918 (emphasis added)

(citations omitted). The present case is similar to the

Buchanan situation because here the respondent requested

psychiatric examinations and he introduced evidence in

support of his insanity defense.

The Court of Criminal Appeals held that the

Buchanan holding of waiver does not apply to the sen-

tencing phase of a capital murder trial. That is an interest-

ing conclusion, considering that the language of Buchanan

with respect to waiver is broad and unequivocal. This

Court explicitly stated that once a defendant raises a

mental health issue in the trial, he no longer has a Fifth

Amendment privilege with respect to testimony based on

a psychiatric interview that the defendant requested.

Buchanan, supra. The waiver in Buchanan would seem-

ingly encompass the second part of a bifurcated trial. It is

difficult to understand how a defendant may only “par-

tially” waive his right to remain silent. If the evidence

eT ne

13

may be used against him at the guilt/innocence stage of

the trial, it seems fair that the evidence should be used at

the sentencing stage of the trial.

There are critical factual differences between the pre-

sent case and the Powell case. The Powell court specifically

declined to comment upon the issue present in this case.”

In Powell, the defendant was interviewed by a psychia-

trist and a psychologist at the State’s request. Powell,

supra at 3148. Powell’s counsel was not notified and Pow-

ell was not informed of his right to remain silent. The

State called both to testify during the sentencing phase of

the trial. These facts are quite different from the facts in

the present case because the respondent in this case initi-

ated both interviews. His counsel was on notice and he

effectively waived his right to remain silent. Although the

Texas Court of Criminal Appeals cited a footnote from

Powell, this Court did not reach the issue present in this

case. Powell is much more factually similar to Estelle v.

Smith, supra, in that the defendant did not request the

interviews and did not receive Miranda warnings. The

defendant in Powell never waived his right to remain

silent as did the respondent in the present case. The

Court of Criminal Appeals erred in relying on Powell,

because the differences between the present case and

Powell are dispositive.

Another case relied upon and misapplied by the

Court of Criminal Appeals is Battie, supra. Battie

7 This Court noted, “We . . . have no occasion to address

whether a waiver of the right to object to the use of psychiatric

testimony at the guilt phase of a capital trial extends to the

sentencing phase...” Powell, supra at 3149 (n.2).

14

requested a mental health interview for the purposes of

determining his competency to stand trial and to deter-

mine his sanity at the time of the offense. A psychiatrist

and a psychologist interviewed him. Battie never intro-

duced testimony of mental health experts at trial on the

issue of a mental state relevant to the offense, however.

Neither the State nor the defense called the psychologist

to testify during the guilt/innocence phase of the trial.

The State presented the testimony of the psychologist

during the sentencing phase of the trial, however, who

testified that Battie would constitute a continuing threat

to society. This testimony was based on the interview

requested by Battie. Because Battie did not introduce a

mental health defense, the Fifth Circuit held that the

waiver doctrine was inapplicable. Battie, supra at 702.

The Battie court recognized that when a defendant

presents a mental health defense, he effectively waives

the Fifth Amendment privilege “in the same manner as

would the defendant’s election to testify at trial”. Battie,

supra at 701-702. The Battie court also cited United States v.

Cohen, 530 F.2d 43 (5th Cir.), cert. denied, 97 S. Ct. 149

(1976). Cohen upheld the government’s use of the results

of a court-appointed psychiatric examination after the

defense presented testimony in support of a mental

health defense. As the Fifth Circuit noted, “Cohen, like

virtually every other federal and state court to address

this issue, concluded that any burden imposed on the

defense by this result is justified by the State’s over-

whelming difficulty in responding to the defense’s psy-

chiatric testimony without its own psychiatric

examination of the accused and by the need to prevent

fraudulent mental defenses”. Battie, supra at 702.

15

The Court of Criminal Appeals also failed to mention

its decision in Penry v. State, 691 S.W.2d 636 (Tex. Crim.

App. 1985), cert. denied, 106 S. Ct. 834 (1986), later pro-

ceeding Penry v. Lynaugh, cert. granted (on separate

grounds), 108 S. Ct. 2896 (1988) (rev’d on other grounds),

109 S. Ct. 2934 (1989). Penry held that the State was

properly allowed to introduce the testimony of two psy-

chiatrists during the sentencing stage of the trial, both of

whom had previously interviewed Penry for competency

at the defendant’s request. Penry, supra at 650-652. The

Court of Criminal Appeals concluded that Penry waived

his constitutional right against self-incrimination because

he raised the issue of insanity during the guilt/innocence

stage of the trial. Penry, supra at 652.8

When a defendant waives the Fifth Amendment right

and makes a statement, the State should be able to use

that statement for all purposes. For instance, if a defen-

dant waives his Fifth Amendment right and confesses a

crime to a law enforcement officer, that confession should

be admissible during every stage of a trial. Once waiver

has been established for the interview itself, the answers

to that interview and every possible inference that may

be read into the answers to the interview should be

8 One of the cases relied upon by the Court of Criminal

Appeals as to the distinction between waiver in the guilt /inno-

cence phase of trial and waiver in the sentencing phase of the

trial, Beathard v. State, 767 S.W.2d 423 (Tex. Crim. App. 1989),

even mentions and distinguishes Penry. Beathard, supra at 432.

The Court stated, “ ... our holding in Penry [that waiver applies

to both stages of the trial] is applicable only within the limited

area of psychiatric examinations and Estelle v. Smith error.”

Beathard, supra.

16

properly admitted into evidence. There is no analytical

distinction between waiver for the guilt/innocence phase

of the trial and waiver for the sentencing phase of the

trial. The waiver should be in effect for all uses through-

out the proceedings in the cause.

Further, the Court of Criminal Appeals’ opinion does

not represent the logical extension of Buchanan, Powell,

and Battie. These cases stand for the idea that once a

defendant initiates the question of culpability through a

request for mental health interviews and the presentation

of mental health testimony, he has waived his constitu-

tional right to remain silent. The content of the interview

of a defendant by a mental health professional, initiated

at the defendant’s request, should be available for all

purposes. To restrict the use of the testimony unneces-

sarily burdens the State and obstructs the fact-finding

function of the trial.

II. IN DETERMINING THAT THE DOCTORS’ TESTI-

MONY ON FUTURE DANGEROUSNESS WAS

NOT HARMLESS ERROR, THE COURT OF CRIM-

INAL APPEALS ERRED BY MISAPPLYING THE

HARMLESS ERROR RULE OF CHAPMAN V. CALI-

FORNIA AND SATTERWHITE V. TEXAS.

This Court has determined that the harmless error

rule applies to the admission of psychiatric testimony in

violation of the Sixth Amendment right set out in Estelle

v. Smith, supra, where it noted that a reviewing court can

make an intelligent judgment about whether the erro-

neous admission of psychiatric testimony might have

affected the capital sentencing jury. Satterwhite, supra at

1798. The harmless error rule is that if the prosecution

17

can prove beyond a reasonable doubt that a constitutional

error did not contribute to the verdict, then the error is

harmless and the verdict may stand. Chapman v. Califor-

nia, supra at 828. Thus, the question in the case at bar is

whether the State has proved beyond a reasonable doubt

that the doctors’ testimony did not contribute to the

verdict.

In the Court of Criminal Appeals’ decision, the Court

held that the State could not prove beyond a reasonable

doubt that the doctors’ testimony did not contribute to

the verdict and reversed the death sentence given to the

respondent. The State contends, however, that the Court

of Criminal Appeals misapplied the federal harmless

error rule of Chapman v. California, supra and Satterwhite,

supra, and that no reversal is necessary in this case.?

THE COURT OF CRIMINAL APPEALS

INCORRECTLY EVALUATED THE STANDARD

OF HARMLESS ERROR.

The State contends that the Court of Criminal

Appeals incorrectly evaluated the harm of the error com-

mitted. The Court of Criminal Appeals concluded that

there had been “no showing” that the “jury was con-

vinced of appellant’s future dangerousness without the

aid of” Dr. McNeel’s and Dr. Allen’s testimony. Wilkens,

9 The state court opinion cited federal harmless error cases

and the opinion did not clearly state that it was relying exclu-

sively on state law. Thus, it must be presumed that the court’s

opinion rested on federal law. Michigan v. Long, 463 U.S. 1032,

1042 (1983).

18

supra at 12. The Court of Criminal Appeals relied on this

Court’s decision in Satterwhite, supra, in employing this

analysis. The result of this decision is a confusing stan-

dard on harmless error. It is the position of the State that

the standard enunciated is faulty; and that this standard,

which can never be met by the State, produces an unjust

and judicially inefficient result.

In past decisions, this Court construed its harmless

error standard to mean that if the evidence in the trial

was overwhelming or cumulative, the error committed

was “harmless” and the conviction would be upheld. Rose

v. Clark, 478 U.S. 570 (1986); Delaware v. Van Arsdall, 475

U.S. 673 (1986); Milton v. Wainwright, 407 U.S. 371 (1972);

Schneble v. Florida, 405 U.S. 427 (1972). These cases have

never been overruled; Satterwhite did not mention them.

This Court recognized that the purpose behind the harm-

less error rule was the promotion of economic and judi-

cial efficiency. As this Court noted in the Van Arsdall

decision:

“The harmless error doctrine recognizes the

principle that the central purpose of a criminal

trial is to decide the factual question of the

defendant’s guilt or innocence and promotes

public respect for the criminal process by focus-

ing on the underlying fairness of the trial rather

than on the virtually inevitable presence of

immaterial error.” Supra at 681.

In Satterwhite, this Court shifted its emphasis of

harmless error from examining the error in the context of

the weight of properly admitted evidence, back to the

scope and impact of the erroneously admitted evidence.

This is a significant departure, because it requires the

19

State to prove a negative — that the error did not irrepara-

bly taint the proceedings. This Court did not overrule its

previous decisions which permitted the courts to examine

the error in the context of the other evidence, nor did it

provide any real guidelines for fleshing out this new

standard. In fact, Satterwhite stands alone as an aberration

and an anomaly to this Court’s other opinions on harm-

less error. In turn, the Court of Criminal Appeals inter-

preted Satterwhite as requiring an inquiry into the

singular impact of the doctors’ testimony on the jury.

The State contends that this is the wrong inquiry.

First, it is impossible to know the effect of one specific

piece of evidence or witness on the jury. The jury is not

permitted to reveal any of the deliberative or mental

processes it used in reaching its verdict. Thus, the State

can never satisfactorily meet this burden. The entire pur-

pose behind the harmless error rule, judicial efficiency, is

defeated if the analysis used is so demanding that the

State can never meet it.

This is also an inefficient and unjust standard. By

focusing on the error and its potentially endless ramifica-

tions, the Court ignores all of the other evidence which

obviously indicates that the respondent was guilty. Lost

in this analysis is the idea that a criminal trial is a process

that is designed to produce a reliable and fair result. The

fairness of a trial is not impaired by a constitutional error

that had no effect on the finding of guilt. See Strickland v.

Washington, 466 U.S. 668 (1984). Also lost in the Court of

Criminal Appeals’ analysis is the concern for public

respect of the criminal appellate process, which was

expressed by this Court in the Van Arsdall decision.

20

IN DETERMINING THAT THE DOCTORS’

TESTIMONY ON FUTURE DANGEROUSNESS

WAS NOT HARMLESS ERROR, THE COURT

OF CRIMINAL APPEALS ERRED BY IGNORING

THE EVIDENCE PROPERLY ADMITTED DURING

THE GUILT/INNOCENCE PHASE OF THE TRIAL.

At the punishment stage of the trial, prosecutors

asked the jury to consider all the evidence admitted dur-

ing the guilt/innocence stage of the trial. Yet, the Court of

Criminal Appeals ignored the obvious impact of this

devastating and critical testimony in determining that the

doctors’ testimony terminally tainted the trial. The State

contends that this evidence deserves the Court’s attention

and should not be summarily dismissed. The Court of

Criminal Appeals found nothing wrong with any of the

evidence or proceedings of the guilt/innocence phase of

the trial. Indeed, a plethora of evidence was presented

during the guilt/innocence phase of the trial which is

more than sufficient to support the jury’s findings and

verdict. Further, the State argues that the evidence prop-

erly admitted during both phases of the trial was so

overwhelming and cumulative that, beyond a reasonable

doubt, the tainted evidence, which in contrast is rather

insignificant, did not contribute to the jury’s verdict.

Texas law certainly does not require the admission of

psychiatric testimony in a capital murder trial. In addi-

tion to the evidence that was presented to the jury in the

penalty phase, the jury is allowed to take into consider-

ation all the evidence submitted, including the evidence

in the guilt stage, in determining what penalty to assess

against the respondent. Pyles v. State, 755 S.W.2d 98 (Tex.

Crim. App. 1988). The circumstances of the offense, if

— ,

-

21

severe enough, can be sufficient for an affirmative answer to

the question of future dangerousness. Landry v. State, 706

S.W.2d 105 (Tex. Crim. App. 1985); Holloway v. State, 691

S.W.2d 608 (Tex. Crim. App. 1984). In fact, the facts and

circumstances surrounding a murder may be more probative

than any other evidence regarding the issue of future dan-

gerousness presented at the penalty phase of the trial. Kunkle

v. State, 771 S.W.2d 435 (Tex. Crim. App. 1986).

There is ample evidence to prove beyond a reason-

able doubt that the error of admitting the doctors’ testi-

mony did not contribute to the verdict in the

respondent’s case. Many differences exist between

respondent’s case and Satterwhite, which seems to be the

basis for the Court of Criminal Appeals’ decision. For

instance, the doctors never referred to the respondent as

a “sociopath”. This was a key term Dr. Grigson employed

in testifying in Satterwhite. In this case, the doctors’ testi-

mony during the punishment phase of the trial focused

on the respondent’s violent tendencies and his potential

for rehabilitation.!° Another fact which distinguishes this

10 The following are excerpts from Dr. McNeel’s testimony

during the punishment stage of the trial:

“Q [by Mr. Henry] What is your opinion . . . as to whether or not

there is a probability that this Defendant would commit

criminal acts of violence that would constitute a continuing

threat to society?

A Well, in my opinion, based on information I have had avail-

able to me and my experience in my field, I feel that there

definitely is a probability of future acts of violence in a

person like this” (SF XXXIII-28-29).

“Q __.... Doctor, did the Defendant give you any indication of

remorse . . . over these killings?

A I would have to say very little. . . .

22

case from Satterwhite is the closing argument by prosecu-

tors. The prosecutors in Satterwhite unduly emphasized

Dr. Grigson’s testimony, and repeated the word

....[C]an you tell us what kind of chances the way things are

today that this Defendant has of being rehabilitated?

Well, if being rehabilitated means basically curing or chang-

ing the basic personality default or defect. . . . I think there’s

no one in psychiatry that feels like that this is a condition that

is likely to be improved or likely to respond to treatment or

basically is untreatable in any reasonable manner.

. . Doctor, you asked the Defendant the question when you

were interviewing him if he would do this again and how did

he respond in manner and speech to that? What was his

reaction to that?

Well, he paused and hesitated for some time, I suppose some

thirty seconds as though he was reflecting on it, and finally he

said — as I recall, he said, ‘I don’t think I would or I get’ - no

I’m sorry. He said, ‘I guess I wouldn’t do it again,’ and then

went on to discuss some other topic. .. . ” (SF XXXIII-32-34).

The following excerpts are from Dr. Allen’s testimony during the

punishment stage of the trial:

“Q

>O>

Now, Doctor, based on your examination of the Defendant

and based on the materials that were provided to you and

that you were able to read through, were you able to form an

opinion as to whether or not there is a probability that this

Defendant would commit criminal acts of violence that would

constitute a continuing threat to society?

Yes.

And what was that opinion?

That he is a threat to - that there is a probability that he will

continue to be a threat to society to commit criminal acts. . . .”

(SF XXXIII-79).

Now, when you were talking to the Defendant, Doctor, did he

express any remorse to you or did you detect any remorse on

his part for killing these people?

No. No, I did not. . . . ” (SF XXXIII-86).

23

“sociopath” several times during the argument. The pros-

ecutors in the present case emphasized the facts of the

crime, and the testimony of Dr. Crow which was admit-

ted during the guilt/innocence phase of the trial."

“Q At this point in time, knowing what the Defendant has

done, knowing what he’s been convicted for in this court

today, what are in your opinion his chances for reha-

bilitation?

A Minimal” (SF XXXIII-88).

1 The following are excerpts from Assistant District Attor-

ney Kevin Henry’s portion of the closing arguments during the

punishment phase of the trial:

“....Is there a probability that the Defendant would

commit criminal acts of violence that would consti-

tute a continuing threat to society? Now, let’s look at

what he is. And instead of just starting with Dr.

McNeel and Dr. Allen, let’s go back to Dr. Crow in the

guilt stage of the trial when he was describing this

Defendant as an antisocial personality. . . . Both doc-

tors testified that this type of thing is something that

cannot be treated, cannot be made to go away, cannot

be changed....

Now, Dr. Allen testified why he thought the Defen-

dant would be a future danger, why the probability

was there, why he said there was a high probability.

Severe [sic] factors came together and, folks, you

know it from the evidence. You know from seeing

those past reports at Rusk. You know that this Defen-

dant has been attempted to be helped many, many

times in the past. He’s been in the penitentiary before.

That didn’t do any good. He’s been in Rusk State

Hospital before and that didn’t do any good. And

now it all culminates with this gruesome double mur-

der, a horrible act at the hands of this Defendant” (SF

XXXIII-163).

24

The State contends that the facts of this case distin-

guish it from the Satterwhite case and is alone indicative

Although Mr. Henry mentioned the doctors’ testimony, he

hardly emphasized it.

Smith County District Attorney Jack Skeen, Jr., made the

following references to the doctors’ testimony during his por-

tion of the closing arguments at the punishment stage of the

trial:

“What I ask you to look at is what is the testimony

regarding the Defendant in this case. And what I ask

you to base that on is, number one, what this Defen-

dant has done. You know. You know, I don’t think that

we could find any finer witness than Dr. Thomas

Allen to come in here and testify and Dr. McNeel to

come in here and testify. This is a psychiatrist and a

psychologist who have closely examined this Defen-

dant. And if you look at the testimony of Thomas

Allen, Dr. Allen, what does he tell you? There is a

high probability that this Defendant will commit

future acts of violence against society. That’s what his

testimony is. That’s the bottom line on it. He told you

the basis of all of it and he spent five hours with this

Defendant...” (SF XXXIII-183-184).

“ ... And I would submit to you, ladies and gentle-

men, that if you did not have the testimony of Dr.

Thomas Allen and if you did not have the testimony

of Dr. Tynus McNeel that you could make a real good

case just based on the actions of this Defendant that

there is a probability that this Defendant will commit

future acts of violence against society. And when the

defense attorney stands up here and says all they’ve

brought you is the testimony of Dr. Allen and Dr.

McNeel, he couldn’t be more wrong. The Judge

instructs you right here in this charge that in making a

determination of how any of these special issues

should be answered you could consider all the evi-

dence in the case. All the evidence produced in the

full trial can be considered in determining how this

25

of future dangerousness. This was a brutal crime inflicted

upon an unsuspecting man, woman and child. The jury

found the respondent guilty of this heinous crime. While

the State produced a psychiatrist and a psychologist to

testify, this was not necessary to sustain a conviction. !2

The evidence properly admitted during both phases of

the trial was so overwhelming and cumulative that,

beyond a reasonable doubt, the tainted evidence, which

in contrast is rather insignificant, did not contribute to

the jury’s verdict. This Court should remember that the

respondent testified and basically admitted that he com-

mitted the crime (SF XXX-78, 79). The respondent also

admitted that he robbed a gas station in Amarillo, Texas,

in 1982, with a knife, and was subsequently convicted of

robbery (SF XXX-35, 95-97). The only issue was his cul-

pability, since he raised the mental health issues.

Since the facts of this case alone would have been

sufficient to support an affirmative answer to the second

special issue No. 2 and the others should be

answered. You just ask yourselves from a com-

mon-sense standpoint. I really don’t think you have

to have a bunch of degrees and having done the type

of work that Dr. McNeel and Dr. Allen have done,

even though certainly they’re the type trained profes-

sionals that can give that opinion, but I don’t think

you have to go exclusively on that” (SF

XXXIII-185-186).

The thrust of Mr. Skeen’s argument is obviously that the facts of

the crime alone warrant the death penalty.

12 Psychiatric testimony is not essential to support an affir-

mative answer to the question of future dangerousness. Carter v.

State, 717 S.W.2d 60 (Tex. Crim. App. 1986); Mitchell v. State, 650

S.W.2d 801 (Tex. Crim. App. 1983); Williams v. State, 668 S.W.2d

692, 695 (Tex. Crim. App. 1983).

26

issue if the doctors had not testified, it can hardly be said

that their testimony added anything to the jury’s deci-

sion. A psychiatrist or a psychologist is not required to

determine that a person who would murder a man and a

small child as they were bringing in their Christmas

presents, and who would attempt to murder the mother

of the small boy as she tried to help her son and as she

tried to dodge the spray of bullets, is a deviant who

should be removed from civilized society. By disregard-

ing the evidence of the crime itself, the Court of Criminal

Appeals not only miscalculated the federal harmless error

standard but it has also callously ignored the pain and

suffering endured by Sandra and her family. A retrial will

be excruciatingly difficult for Sandra Williams and the

family of Richard Wood. Sandra Williams will be forced

to relive that horrifying instant when the killer appeared

in her bathroom, she ran for help, she saw her friend shot

in the face with a shotgun and die, she heard her son

screaming for help and the shotgun blasts that ended his

life, and the tense moment when she knew her son was

dead and she had to lie on the ground and “play dead” in

hopes that the respondent would not shoot her again.

Such a result is not fair, nor just, and it is certainly not

mandated by the Constitution.

The State maintains that this Court should revisit the

harmless error standard. The State urges this Court to

adopt a more fair and equitable standard for determining

harmless error. Absent the doctors’ testimony, there was

ample evidence properly admitted that can sustain the

verdict reached in this case. The evidence supporting the

affirmative finding of future dangerousness is compelling

and overwhelming. Because of all the evidence the jury

27

heard, this Court should grant the State’s petition, and

determine that the State proved beyond a reasonable

doubt that the erroneous admission of the psychiatric

testimony did not contribute to the verdict of death.

Because the harmless error rule applies in this case but

was misapplied by the Court of Criminal Appeals, this

Court should review the doctrine of harmless error and

remand this cause to the Court of Criminal Appeals. The

sentence of death should be affirmed.

¢

CONCLUSION

For the reasons stated herein, a writ of certiorari

should be granted in this case. The judgment of the Court

of Criminal Appeals should be reversed and the case

should be remanded to that court, for further proceed-

ings.

Respectfully submitted,

Jack SKEEN, Jr., Amy R. BLALock, Assistant

Criminal District Attorney Criminal District Attorney

403 Smith County 403 Smith County

Courthouse Courthouse

Tyler, Texas 75702 Tyler, Texas 75702

903/535-0520 903/535-0520

Counsel of Record

Attorneys for Petitioner

App. 1

JAMES JOSEPH WILKINS, JR., Appellant

NO. 70,136 V.----- Appeal from SMITH County

THE STATE OF TEXAS, Appellee

OPINION

James Joseph Wilkens, Jr., appellant, was indicted for

the offense of capital murder in the shooting deaths of

Richard Wood and Larry McMillen, jr. both having been

committed during the same criminal transaction on or

about December 27, 1986 in Smith County, Texas. Appel-

lant was convicted and sentenced to death on or about

February 18, 1988. This is appellant’s direct appeal of this

verdict wherein he raises twelve points of error.

Appellant does not raise sufficiency of the evidence,

and so a detailed recitation of the facts is not necessary.

Briefly, he is accused of going to the home of Richard

Wood on December 27, 1986 with a .22 rifle and imme-

diately opening fire on all present. Richard Wood was

shot in the face and left dead in his doorway. Sandra

Williams, a former girlfriend of appellant’s, was shot

several times in the front yard while attempting to run

from appellant; however, she lived. Larry McMillen, Jr., a

four year old child of Sandra Williams, was killed by

multiple shots while sitting on the living room sofa.

Appellant plead not guilty by reasons of insanity. He was

examined by two doctors for his mental competency to

stand trial and was found competent for purposes of trial.

Appellant’s points of error may be categorized into

three groupings. Points of error two, three, four, and ten

all complain of the testimony at the penalty phase by Drs.

App. 2

Tynus McNeel and Thomas Allen; particularly, on future

dangerousness and the State’s failure to notify defense in

advance that their examinations would be used for future

dangerousness, as well as Dr. McNeel’s status as an

expert.

Points of error five through eight all complain of the

admitting of certain photographs of the two victims, all of

which appellant alleges were highly prejudicial and

inflammatory and had little or no probative value.

Points of error one and nine complain of error in the

charge; and points eleven and twelve complain of

improper bolstering and of the capital sentencing pro-

cedure as it relates to mitigating evidence.

Points two and three pertain to testimony at the

penalty phase by Dr. Tynus McNeel and Dr. Thomas

Allen about appellant’s future dangerousness. Appellant

argues that such testimony violated his Fifth Amendment

privilege against compelled self-incrimination because

neither doctor had informed him of his right to remain

silent and that anything he said could be used against

him. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68

L.Ed.2d 359 (1981). In point of error four, appellant con-

tends his Sixth Amendment right to counsel was violated

by the State’s failure to first notify his counsel that the

psychiatric and psychological examinations would

encompass the issue of future dangerousness upon which

McNeel and Allen testified.

Prior to trial appellant’s counsel requested that the

trial court appoint an expert to examine appellant con-

cerning his competency to stand trial. His motion also

stated that appellant suffered from mental diseases and

App. 3

defects in the recent past. In addition, counsel filed a

notice of intent to raise the defense of insanity. The trial

court appointed McNeel to examine appellant on the

issues of incompetency to stand trial and insanity at the

time of the offense. Later, the trial court granted counsel's

request to appoint Allen to examine appellant on the

issue of competency. Again the court’s order included a

provision ordering Allen to also examine appellant on the

issue of sanity at the time of the offense.

Both McNeel and Allen testified for the State in

rebuttal during the guilt/innocence phase of trial con-

cerning appellant’s sanity. At the punishment phase of

trial McNeel and Allen testified for the State that, based

upon their examinations of appellant, there was a proba-

bility he would commit future acts of violence. Appellant

objected to this testimony on the basis that neither

McNeel nor Allen had informed him of his right against

self-incrimination and that anything he said could be

used against him. Appellant did not object that this testi-

mony violated his Sixth Amendment right to counsel.

Therefore, appellant has not preserved his contention

concerning a violation of his right to counsel. Spence v.

State, 795 S.W.2d 743 (Tex.Cr.App. 1990); Gardner v. State,

733 S.W.2d 195 (Tex.Cr.App. 1987). See also Thompkins v.

State, 774 S.W.2d 195 (Tex.Cr.App. 1987); Pyles v. State, 755

S.W.2d 98 (Tex.Cr.App. 1988); Granviel v. State, 723 S.W.2d

141 (Tex.Cr.App. 1986). Point of error four is overruled.

Appellant’s claim in points two and three that his

Fifth Amendment rights were violated by McNeel’s and

Allen’s testimony at the punishment phase of trial

requires a determination of two issues: first, whether

appellant waived his Fifth Amendment rights by his

App. 4

assertion of an insanity defense at guilt/innocence phase;

and, second, if he did so waive his Fifth Amendment

rights as to this psychiatric testimony at the guilt/inno-

cence phase regarding insanity, whether that waiver

extends to the punishment phase and the issue of future

dangerousness under Article 37.071 (b) (2), V.A.C.C.P.

The trial court ordered the examinations for compe-

tency and insanity at appellant’s request. Appellant did

not waive his Fifth Amendment privilege merely by

requesting appointment of a court-appointed psychiatrist

and psychologist and submitting to a competency and

sanity examination. Hernandez v. State, 805 S.W.2d 409

(Tex.Cr.App. 1990); Powell v. State, 742 S.W.2d 353

(Tex.Cr.App. 1987), vacated and remanded 487 U.S. 1230,

108 S.Ct. 2891, 101 L.Ed.2d 926 (1988) aff’d 767 S.W.2d 759

(Tex.Cr.App. 1989) revs’d 492 U.S. 680, 109 S.Ct. 3146, 106

L.Ed.2d 551 (1989); Battie v. Estelle, 655 F.2d 692 (Sth Cir.

1981). ;

In Smith the Supreme Court held that because the

defendant was not informed that what he said during the

competency examination could be used against him at the

punishment phase of trial on the issue of future danger-

ousness, his Fifth Amendment rights were violated. The

Court left open the issue of the admissibility of such

compelled testimony in response to a defendant's asser-

tion of the insanity defense or to a defendant’s use of

psychiatric evidence in his own behalf on the issue of

future dangerousness.

In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906,

97 L.Ed.2d 336 (1987), the Supreme Court addressed the

issue left open in Smith concerning the State’s use of

App. 5

psychiatric testimony for rebuttal purposes when the

defendant has initiated the use of psychiatric evidence. In

Buchanan defense counsel joined with the prosecutor in a

motion for involuntary hospitalization of the defendant

for treatment of mental illness. At trial the defendant

attempted to establish the affirmative defense of

“extreme emotional disturbance,” relying on psychologi-

cal reports and letters. In response the prosecutor intro-

duced part of a report made by a doctor concerning his

observations about the defendant’s mental state when the

defendant was involuntarily hospitalized. The defendant

objected that this violated his Fifth and Sixth Amendment

rights.

Relying on language in Smith, the Court stated:

[I]f a defendant requests such an evaluation or

presents psychiatric evidence, then, at the very

least, the prosecution may rebut this presenta-

tion with evidence from the reports of the exam-

ination that the defendant requested. The

defendant would have no Fifth Amendment

privilege against the introduction of this psychi-

atric testimony by the prosecution. [Citations

omitted]

Id., 483 U.S. at 422-423, 107 S.Ct. 2917-2918, 97 L.Ed.2d at

355. The Court noted this report did not describe any

statements made by the defendant dealing with the

offenses for which he had been charged. The Court con-

cluded that use of such a report for “this limited rebuttal

purpose” was not a Fifth Amendment violation. Id., 483

U.S. at 424, 107 S.Ct. at 2918, 97 L.Ed.2d at 356.

The above quoted language in Buchanan controls

appellant’s argument that he had not waived his Fifth

App. 6

Amendment rights at the guilt /innocence phase by intro-

ducing evidence in support of his insanity defense. We

hold, in accord with Buchanan, that it was not a violation

of appellant’s Fifth Amendment privilege for the State to

rebut appellant’s presentation of an insanity defense at

the guilt/innocence stage with testimony from the

experts who had examined appellant on that issue at his

request.

Appellant also argues a more narrow basis for find-

ing no waiver of his Fifth Amendment privilege at the

guilt/innocence phase despite his presentation of an

insanity defense. He relies upon a case from this Court,

Powell v. State, 742 S.W.2d 353 (Tex.Cr.App. 1987), vacated

and remanded 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d

926 (1988), aff'd 767 S.W.2d 759 (Tex.Cr.App. 1989), revs’d

492 U.S. 680, 109 S.Ct. 3146, 106 L.Ed.2d 551 (1989), to

argue that he had not-waived his Fifth Amendment rights

concerning the expert testimony at the guilt/innocence

phase and thus also not at the punishment phase.

Our original opinion in Powell addressed the same

issue presented by appellant. That issue is whether a

defendant’s presentation of evidence in support of an

insanity defense waives his Fifth and Sixth Amendment

rights concerning psychiatric testimony at the guilt/inno-

cence phase of trial and at the punishment phase.

In Powell the defendant's Fifth and Sixth Amendment

rights were violated under Smith by allowing testimony

of psychiatric and psychological examinations without

App. 7

informing him of his Miranda! rights and without notify-

ing counsel in advance that the examinations would

encompass the issue of future dangerousness. The experts

were permitted, over objection, to testify for the State in

rebuttal at the guilt/innocence phase regarding the issue

of insanity, after the defendant had introduced evidence

in support of an insanity defense. They also testified at

the penalty stage of the trial on the issue of future dan-

gerousness. This Court stated that “once the defendant

has argued the affirmative defense of insanity by use of

testimony from a mental health expert, the Fifth Amend-

ment privilege accompanying any psychiatric testimony

has been waived.” Id. 742 S.W.2d at 358. We held the

defendant had waived both his Fifth and Sixth Amend-

ment rights at the guilt/innocence phase in terms of the

State’s use of the expert testimony to rebut his defense of

insanity; and he also waived those rights at the punish-

ment phase in terms of the State’s use of the expert

testimony on the issue of future dangerousness.?

1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966).

2 The United States Supreme Court disagreed with this

Court’s analysis of the Fifth and Sixth Amendment violations,

stating they were “conflated.” The Supreme Court discussed the

difference between the Fifth and Sixth Amendment, addressed

only the Sixth Amendment violation, and held that evidence of

future dangerousness was taken in violation of the defendant's

Sixth Amendment right to assistance of counsel. The Court

specifically noted that it was not addressing the issue of

whether a waiver of the right to object to psychiatric testimony

at the guilt/innocence phase of a capital murder trial also

extends to the sentencing phase. Powell, 492 U.S. at 683, n. 2, 109

S.Ct. at 3149 n. 2, 106 L.Ed.2d at 555, n. 2. This note suggests that

this issue of waiver as it relates to the punishment phase issues, based

App. 8

Appellant attempts to distinguish our original opin-

ion in Powell from his case on the basis of language

indicating that a defendant must first present evidence of

insanity from a mental health expert before the State may

utilize mental health experts in rebuttal. The distinction is

incorrect.

Appellant called several doctors and mental health

experts who testified they had determined appellant was

mentally ill and had temporarily committed him to Rusk

State Hospital a couple of times within a span of one and

one-half years before the commission of the offense to

two and one-half years before. Based upon this expert

evidence, appellant’s version of his disadvantaged and

troubled background, and the facts leading up to and

including the offense, appellant argued to the jury that he

had proven he was insane at the time he committed the

offense. Appellant argues that because he did not call a

mental health expert to specifically testify that he was

insane at the time of the offense, the State should not

have been permitted to rebut his claim by the use of

experts. We do not agree that the State must be so limited.

Appellant presented mental health expert testimony

in support of his insanity defense. While the experts did

not testify specifically that appellant was insane at the

time of the offense, their testimony regarding appellant's

mental illness was part of the foundation upon which

appellant based his defense. Language in Powell did not

upon a defendant's assertion of an insanity defense is still an open

question and was not disposed of by our original opinion in Powell.

(Emphasis added.) See also id., 492 U.S. at 685-686, n. 3, 109 S.Ct.

at 3150, n. 3, 106 L.Ed.2d at 557, n. 3.

App. 9

condition admission of expert testimony in rebuttal on a

defendant’s expert’s statement that defendant was insane

at the time of the offense. “[O]nce the defendant has

argued the affirmative defense of insanity by use of testi-

mony from a mental health expert, the Fifth Amendment

privilege accompanying any psychiatric testimony has

been waived.” Id., 742 S.W.2d at 358. In the instant case

appellant used expert testimony to support his defense.

In this context, even under Powell, the State’s use of

experts in rebuttal was proper. Further, language in Smith

and Buchanan indicates that if a defendant introduces

psychiatric evidence in some form, the State may also

introduce psychiatric evidence in some form. Smith, 451

U.S. at 465-466, 101 S.Ct. at 1874, 68 L.Ed.2d at 370;

Buchanan, 483 U.S. at 422, 107 S.Ct. at 2917, 97 L.Ed.2d at

355. Therefore, appellant’s Fifth Amendment privilege

was not violated at the guilt/innocence phase by the

State’s use, in rebuttal, of testimony by Allen and McNeel

concerning appellant’s insanity.

This brings us to the more difficult issue of whether

appellant’s waiver of his Fifth Amendment rights by

presentation of evidence in support of an insanity

defense at the guilt/innocence phase extends to the

experts’ testimony concerning future dangerousness at

the punishment phase when appellant did not present

any such psychiatric testimony at punishment.

In Smith the Supreme Court stated that a defendant's

Fifth Amendment privilege was implicated at the punish-

ment phase on the issue of future dangerousness. 451 U.S.

at 466-469, 101 S.Ct. at 1874-1876, 68 L.Ed.2d at 371-373.

Future dangerousness is a critical issue and one on which

the State has the burden of proof beyond a reasonable

App. 10

doubt. See Article 37.071(b)(2) and (c), V.A.C.C.P. It is an

“element” which the State must prove to obtain the death

penalty and is an entirely different and separate issue

from insanity. Appellant’s request and consent to an

examination for sanity did not put him on notice that

what he said would be used in another context and at

another proceeding - the issue of his future dangerous-

ness at the punishment phase. He was not given Miranda

warnings. Does such lack of notice and lack of waiver by

appellant at the punishment phase also violate appel-

lant’s Fifth Amendment rights at the punishment phase?

Texas and United States Supreme Court cases indicate

that it does.

In Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.

1969), a non-capital case, this Court explained the rela-

tively new bifurcated trial procedure in which guilt/

innocence was a separate proceeding from punishment.?

We concluded:

If Article 37.07, V.A.C.C.P., can be interpreted as

providing two separate proceedings then it fol-

lows that a defendant’s waiver of his privilege

against self-incrimination by taking the stand at

the guilt stage is limited to that particular pro-

ceeding.

Id., at 741. Thus, a defendant has a Fifth Amendment

privilege at each phase, the guilt/innocence phase and at

the punishment phase.

3 Although Brumfield was a plurality opinion as to ratio-

nale, a majority of this Court has embraced the holding. See

Beathard v. State, 767 S.W.2d 423 (Tex.Cr.App. 1989); Nelson v.

State, 765 S.W.2d 401 (Tex.Cr.App. 1989); Brown v. State, 617

S.W.2d 234 (Tex.Cr.App. 1981).

App. 11

Waiver of that privilege at the guilt/innocence phase

does not extend to the punishment phase. See Beathard v.

State, 767 S.W.2d 423 (Tex.Cr.App. 1989), in which we

held a defendant in a capital murder trial was entitled to

have a “no-adverse inference” instruction given to the

jury at the punishment phase when the defendant testi-

fied at the guilt/innocence phase but not at punishment

phase. See Brown v. State, 617 S.W.2d 234 (Tex.Cr.App.

1981), in which this Court held a defendant in a non-

capital case was entitled to have a “no-adverse inference”

instruction given to the jury at the punishment phase

even though such instruction had been given at the guilt/

innocence phase. Brown and Beathard are based on the

principle that a defendant has a separate and distinct

Fifth Amendment privilege against self-incrimination at

the punishment phase. |

These cases together with the recognition in Smith of

a Fifth Amendment privilege at the punishment phase on

the issue of future dangerousness, demonstrate that a

defendant has a separate Fifth Amendment privilege at

the punishment phase of a capital murder case which is

not waived by his testifying at guilt/innocence. There-

fore, appellant’s waiver of his Fifth Amendment privilege

at the guilt /innocence phase concerning psychiatric testi-

mony on the issue of sanity did not carry over to the

punishment phase. Under the dictates of Smith such psy-

chiatric testimony would not have been admissible at the

guilt/innocence phase absent appellant’s waiver in that

proceeding; likewise, it was not admissible at the punish-

ment phase on the issue of future dangerousness absent

some waiver by appellant. See Hernandez v. State, 805

a ae

App. 12

S.W.2d 409, 411-412 (Tex.Cr.App. 1990); Griffin v. State,

665 S.W.2d 762, 769 (Tex.Cr.App. 1983).

Three cases from the United States Supreme Court

strongly suggest that admission of psychiatric testimony

at the punishment phase, in particular concerning the

issue of future dangerousness, requires a separate waiver

or warning. Smith instructs that a defendant must be

informed that what he says could be used against him at

the punishment phase of a capital murder trial. The

Supreme Court noted that if, upon being adequately warned,

a defendant decided not to answer the doctor’s questions,

the sanity and competency examinations could still pro-

ceed upon the condition that the results could only be

used for sanity and competency purposes. The State

would have to find some other way to prove future

dangerousness. Id., 451 U.S. at 468-469, 101 S.Ct. at 1876,

68 L.Ed.2d at 372-373.

In Buchanan, the Supreme Court emphasized that the

Fifth Amendment was not violated by admission of psy-

chiatric or psychological evidence for a “limited rebuttal

purpose.” See id., 483 U.S. at 425, n. 21, 107 S.Ct. at 2919,

n. 21, 97 L.Ed.2d at 357, n. 21. It therefore follows that

when such evidence is admitted to prove one of the

special issues upon which the State bears the burden of

proof, it will violate the Fifth Amendment unless it is

restricted to rebuttal.

Finally, in Powell, the Supreme Court discussed the

Sixth Amendment violation caused by failure to notify

counsel concerning the scope or intended use of the

psychiatric examination. The Court then cited Buchanan

and stated that even if counsel had notice that raising a

a

App. 13

mental-status defense might open the door to the State’s

use of psychological evidence in rebuttal, he would not

anticipate any other use. The Court stated, “Nothing in

Smith, or any other decision of this Court, suggests that a

defendant opens the door to the admission of psychiatric

evidence on future dangerousness by raising an insanity

defense at the guilt stage of trial.” Id., 492 U.S. at 685-686,

n. 3, 109 S.Ct. at 3150, n. 3, 106 L.Ed.2d at 557, n. 3. That is

exactly the situation presented in the instant case.

In the instant case the examining doctors did not

inform appellant that what he said could be used against

him in court and, in particular, at the punishment phase

of his trial. His waiver of his Fifth Amendment privilege

by presentation of an insanity defense, was limited to that

proceeding at the guilt/innocence phase. Brumfield,

supra. The State could only use the psychiatric testimony

in rebuttal at the guilt/innocence phase. See Buchanan,

supra. The State cannot use an expert who has examined

the defendant for sanity and competency to testify to

future dangerousness on the basis of that examination

absent a defendant’s waiver of his Fifth Amendment

privilege at the punishment phase.

Although we find appellant waived his Fifth Amend-

ment privilege at the guilt/innocence phase on the issue

of sanity, we hold that waiver was limited to the guilt/

innocence .phase. See ibid. Because appellant was not

given any warnings as required by Smith, his Fifth

Amendment privilege against self-incrimination was vio-

lated by McNeel and Allen’s testimony at the penalty

phase concerning his future dangerousness.

App. 14

McNeel and Allen were the only witnesses to testify

for the State at the punishment phase. Given the error in

the admission of their testimony, we must determine

whether this testimony on the issue of appellant’s future

dangerousness contributed to the jury’s answers to the

special issues. Each doctor’s specific testimony on appel-

lant’s lack of remorse elucidates this point since remorse,

or lack of, was a subject matter they addressed only in the

punishment phase; it therefore went beyond the issues of

sanity and competency which were the sanctioned rea-

sons for the doctors’ interviews and subsequent testi-

mony at the guilt/innocence phase.

Both doctors testified based upon their interviews

that appellant showed no remorse for his actions. Dr.

Allen’s relevant testimony stated:

. . . [W]hen he finds out that he was in fact

mentally ill and did something which he ordi-

narily would nct do, . . . something that was

awful, he expresses grief. He expresses remorse.

My concern was that the subject, number one,

was lucid while | talked to him, number two,

there was no such remorse. . . . There wasn’t one

word spoken along those lines.

Dr. McNeel’s relevant testimony, in answer to the inquiry

of whether during the course of the interview with appel-

lant how he responded to whether he would do this

again, stated:

Well, he paused and hesitated for some time, I

suppose some thirty seconds as though he was

reflecting on it, and finally he said — as | recall,

he said, .. . ‘I guess | wouldn’t do it again,’ and

the [sic] went on to discuss some other topic.

App. 15

The above testimony was a product of the Fifth

Amendment privilege violation and should not have been

given at the punishment phase. Given the admission of

such testimony, it is impossible to conclude that the jury

was convinced of appellant’s future dangerousness with-

out the aid of same. There being no showing otherwise,

we cannot find beyond a reasonable doubt that this

expert testimony did not contribute to the jury’s answers

to the special issues. See Satterwhite v. Texas, 487 U.S.

1230, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988). Accordingly,

appellant’s conviction is reversed and the cause is

remanded to the trial court.

OVERSTREET, JUDGE

(Delivered June 10, 1992)

EN BANC

PUBLISH

Miller & White, JJ., dissent

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