# Opposition Brief — Texas v. Corley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 913

## Text

Diab cual Supreme Court, U.S.
FILED
NO. 92-1716 MAY 26 1993
OFFICE OF THE CLiRK
IN THE SUPREME COURT OF ‘age
THE UNITED STATES OF AMERICA
OCTOBER TERM, 1992
THE STATE OF TEXAS,
Petitioner
Ve
EDWARD ELDON CORLEY, -
Respondent
ON PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS
BRIEF FOR EDWARD ELDON CORLEY
IN OPPOSITION

JAMES W. KNOWLES KENNETH H. CROW
TRACY G. BARNES
WILSON, SHEEHY, KNOWLES, MOODY & CROW
ROBERTSON & CORNELIUS 204 North Sixth Street
315 East Fifth Street Waco, Texas 76701
Post Office Box 7339 Telephone 817/753-6455
Tyler, Texas 757i1 ; Telecopier 817/753-1232
Telephone 903/593-2561
Telecopier 903/593-0686

ATTORNEYS FOR RESPONDENT

\y

o

QUESTION PRESENTED

WHETHER THE ERRONEOUS INTRODUCTION OF PSYCHIATRIC TESTIMONY

IN RESPONDENT'S CAPITAL MURDER TRIAL CONSTITUTES HARMLESS ERROR

TABLE OF CONTENTS

DESCRIPTION Page
LRFee tae UT EUEEP. <5 5 6s eas oe oA 4 OS ee ee ee ee A 2 wee i
TABLE OF CONTENTS Vererrr ree ye eee oT SS il
TABLE OF AUTHORITIES s.6 eae eee iil
OPINION BELOW : ea Veer e gh I
STATEMENT OF THE CASE eee

\ Statement of the Facts icin os

B Disposition in the Courts Below . 6
SUMMARY OF ARGUMENT 7
REASON FOR DENYING THE WRIT ees
CONCLUSION . 16
\PPENDIX . 18

TABLE OF AUTHORITIES

CASES

Buentello v. State, 826 S.W.2d 610 (Tex.
RE | a es ye

Chapman v. California, 386 U.S. 18. &7
S.Ct. 824, 17 L.Ed.2d 705 (1967)

Corley v. State, 582 S.W.2d 815 (Tex
Cram. App. 19979) . 2.0.2.4...

Corley v. State, No. 71, 444, slip op
(Tex. Crim. App. Dec. 1992)

Dunkins vy. State, 838 S.W.2d 898. 90]
(Tex.App. - Texarkana 1992)

Estelle v. Smith, 451 U.S. 454, 101 S.Ct
1866, 68 L.Ed.2d 359 (1981)

84 S.Ct. 229, 11 L.Ed.2d 171

Satterwhite v. State, 486 U.S. 249.
108 S.Ct. 1792, 100 L.Ed.2d 284
(1988) .

CONSTITUTION

United States Constitution. Fifth
Amendment

United States Constitution. Sixth
Amendment

- iii

STATUTES AND RULES OF PROCEDURE

ee ck week ee ke ee eee we ee eee 15

NG TO enna

Texas Rule of Criminal Procedure 606(b) A rag, APE ap See os PON Sd gl a 14-16
iV

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA

OCTOBER TERM, 1992

NO. 92-1716
THE STATE OF TEXAS, Petitioner
V.

EDWARD ELDON CORLEY, Respondent

ON PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS

BRIEF FOR EDWARD ELDON CORLEY
IN OPPOSITION

TO THE HONORABLE SUPREME COURT OF THE UNITED STATES:
Now comes EDWARD ELDON CORLEY, Respondent, by and through his Court
appointed attorneys, James W. Knowles and Kenneth H. Crow, and files this, his Brief in

Response in Opposition to Petition for Writ of Certiorari, and would show the Court as follows

The opinion of the Texas Court of Criminal Appeals affirming Respondent's conviction

may be found at 582 S.W.2d 815 (Tex. Crim. App. 1979) (Pei. App. 1). Respondent's

n

}

conviction was later reversed in Corley v. State, No. 71, 444, slip op. (Tex. Crim. App. Dec.

1992) (Pet. App. 2).

STATEMENT OF THE CASE

A. Statement of the Facts

On September 14, 1974, Vicki Morris was raped and murdered in Smith County, Texas.
EDWARD ELDON CORLEY was arrested on the morning of September 17, 1974 (SF 2232).
Mr. CORLEY was arraigned September 17, 1974, for plain murder, by a Panola County, Texas,
magistrate. On said date, Curtis Owen, the Smith County District Attorney, did not inform Mr.
CORLEY what he had been charged with and that, if found guilty, he could be punished by
death (SF 107, 2439-2441). This is obvious since Mr. CORLEY had not been charged with a
capital offense at that time. On the same date, without benefit of counsel, Mr. CORLEY, who
has an IQ of 71, signed a written confession which was admitted over objection into evidence
at trial (SF 2718-2719, 2387). This confession described the crime of plain murder, a noncapital
offense.

On the very day that Mr. CORLEY was arrested, Mr. Curtis Owen contacted Dr. Tynus
McNeel, a psychiatrist, to interview Mr. CORLEY (SF 2703). Dr. McNeel first interviewed
Mr. CORLEY on September 18, 1974, and evaluated Mr. CORLEY’s competency as well as
his sanity (SF 2702). On November |, 1974, approximately six (6) weeks after Mr. CORLEY’s
arrest, a second confession was taken in regard to the crime of rape committed in conjunction

with the crime of murder (SF 2420-2423). Since September 17, 1974, Mr. CORLEY had been

ho

incarcerated without benefit of counsel. Mr. CORLEY was then indicted for capital murder for
which he was tried, and the undersigned was appointed to represent Mr. CORLEY.

Dr. McNeel again examined Mr. CORLEY on April 2, 1975, five (5) days prior to the
competency hearing. The third examination conducted by Dr. McNeel occurred on or about
October 16, 1975, shortly before trial commenced. Dr. James Grigson also conducted a
psychiatric examination of Mr. CORLEY shortly before trial, on October 10, 1975 (SF 2732).
Mr. CORLEY was tried and found guilty of murder. Dr. McNeel and Dr. Grigson testified at
the penalty phase as to Mr. CORLEY’s future dangerousness. They were the only licensed
physicians to testify for either side at the penalty phase. The jury answered questions sentencing
Mr. CORLEY to death

In its Statement of the Facts, the State makes several misleading statements. The State
points out on Page 5, Footnote 3, of its Petition that Dr. McNeel advised Mr. CORLEY of his
rights. This is incorrect. Dr. McNeel did not warn Mr. CORLEY at any of the three
interviews that statements he made at the psychiatric interview could be used to form the basis
for predictions of future dangerousness. (SF 2707; SF Writ hearing 70, 71, 74, 112, 113)

In addition, the State points out that Dr. McNeel testified at the Writ of Habeas Corpus
hearing that his opinion that Mr. CORLEY is a sociopath was formed during the initial interview
with subsequent interviews merely confirming his findings (Pet. for Writ of Cert. Page 6,
Footnote 4). Mr. CORLEY has maintained at all times that this is incorrect.' As testified by

Dr. McNeel at the sanity hearing, the purpose of the first interview was twofold: to establish

'The State vigorously attempted to validate the first McNeel interview inasmuch as it is
undisputed that Mr. CORLEY ’s Fifth and Sixth Amendment rights were clearly violated at the
latter two McNee! interviews, as well as at the Gngson interview.

eo

his opinion of competency and sanity (SF Proceedings on Defendant’s Motions 476).’ Dr.

McNeel went on to testify that he had a four purpose objective of the examination: Mr.
CORLEY’s competency at the time of the offense; competency at present; sanity at the time of
the offense; and sanity at present (SF Proceedings on Defendant’s Motions 480). It should be
noted that, at the time of the first examination, Mr. CORLEY was charged with plain murder,
a noncapital offense in the State of Texas, and the purpose of the examination was certainly not
to determine future dangerousness. As such, it is inconceivable that Dr. McNeel gave any
wamings to Mr. CORLEY to the effect that anything he said might be used against him at a
sentencing proceeding with the possible imposition of a death sentence.

More importantly, Dr. McNeel testified at the present sanity hearing that he was not
interested in making a diagnosis and that he did not make a diagnosis (SF Proceedings on
Defendant’s Motions 481-482). Dr. McNeel has testified against Mr. CORLEY on three
different issues: insanity, competency, and future dangerousness. Dr. McNeel now claims that
the first interview was the one that he used as a basis for all these conclusions (although the
record does not support this) and that the latter two interviews were only to confirm his
previously obtained opinions and diagnosis. Yet, the record contains the following testimony
taken at the present sanity hearing when he had conducted only two examinations of Mr.

CORLEY

*Respondent’s Statement of Facts contains two volumes marked "2." “Proceedings on
Defendant's Motions" refers to Volume II - Proceedings on Defendant's Motions re: 34.04,
35.15, 35.17, and 45.02 and Hearing on Present Sanity of Defendant had in Smith County,
Texas, beginning April 7, 1975.

Q: Dr. McNeel . . . you say you did find evidences of personality problems
and things that, in your profession . . . that you would consider as some
sort of defect. Isn’t that correct?

A: Problem area, yes, Sir.

Q. Problem area. And regardless of the fact that those, you just did not feel
it necessary to pursue those at all, or mention them, or bring them up at
all?

A: That really wasn’t what I was asked to do. And at the same time, had I

been asked to make a psychiatric evaluation and diagnosis, then much of
my interview would have been pursued along different areas. And I think
family history probably would have been important from family members
at that time. Also, perhaps, Psychological Testing might be important,
had I been interested in a diagnosis or a personality type diagnosis, for
example. But this was not what I was looking for (SF Proceedings on
Defendant's Motions 481).

Q: And you stated there that you were not asked to make a diagnosis?

A That is my understanding, yes

Q: So, you made no diagnosis?

A: Yes. Not from the standpoint of medical diagnosis. I rendered an

opinion in terms of the person’s sanity and competency (SF Proceedings
on Defendant’s Motions 482)

Dr. McNeel has since "diagnosed" and labeled. Mr. CORLEY as a sociopath. It is clear
from the record that he made no conclusion or diagnosis based on the first two interviews. The
diagnosis of sociopath and the opinion as to Mr. CORLEY’s propensity to future dangerousness
could only have been derived, as shown from the record, from the information gathered from
all three interviews combined, or the last interview

Mr. CORLEY’s counsel were not notified of any of the psychiatric interviews. It is

undisputed that Mr. CORLEY was never told at any of the interviews that the doctors were

i lll
gathering evidence necessary to decide whether, if convicted, he should be sentenced to death.
The Texas Court of Criminal Appeals ruled that the interviews conducted by Drs.
McNeel and Grigson violated Mr. CORLEY’s Fifth and Sixth Amendment rights inasmuch as
Mr. CORLEY was not advised that his statements could be-used against him at the punishment
phase of his trial and his counsel was not notified of the psychiatric interviews.

B. Disposition in the Courts Below

The State now concedes that the admission of the testimony of Drs. McNeel and Grigson
at the penalty phase of Mr. CORLEY’s trial violated Mr. CORLEY’s Fifth and Sixth
Amendment nights. This issue was submitted to the Texas Court of Criminal Appeals by virtue
of a Petition for Writ of Habeas Corpus by a Person in State Custody filed October 15, 1986.
In response, the- Texas Court of Criminal Appeals directed the trial court to conduct an
evidentiary hearing in regard to Mr. CORLEY ’s allegations of constitutional violations in regard
to the doctors’ testimony. This hearing was held, and the trial court submitted Findings of Fact
and Conclusions of Law which were filed June 8, 1992. The Texas Court of Criminal Appeals,
after reviewing the trial court’s Findings of Fact and Conclusions of Law, reversed Mr.
CORLEY’s conviction and remanded Mr. CORLEY to the custody of the Sheriff of Smith
County to answer the indictment. The State filed a Motion for Rehearing on the specific point
that the Texas Court of Criminal Appeals failed to consider whether Drs. McNeel’s and

Grigson’s testimony on future dangerousness was harmful error under Satterwhite v. State, 486

U.S. 249, 198 S.Ct. 1792, 100 L.Ed.2d 284 (1988). The Motion for Rehearing was denied.

SUMMARY OF ARGUMENT

The Texas Court of Criminal Appeals determined that Mr. CORLEY '’s Fifth and Sixth
Amendment rights were violated by the State's introduction of testimony from Dr. Grigson and
Dr. McNeel at the punishment phase of his trial and accordingly vacated his death sentence (Pet

App. 2). As such, by implication, the Texas Court of Criminal Appeals must have determined

~/)

that the error was harmful and reversible. In any event, applying the harmless error doctring

of Chapman y. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and th
the error committed in the penalty phase of Mr. CORLEY ’s trial was

Satterwhite case

certainly harmful error
REASON FOR DENYING THE WRIT

THE TEXAS COURT OF CRIMINAL APPEALS DID NOT FAIL TO CONSIDER
WHETHER THE PSYCHIATRIC TESTIMONY ON FUTURE DANGEROUSNESS WAS
HARMLESS ERROR UNDER SATTERWHITE V. STATI

The Texas Court of Cnminal Appeals specifically ruled that Mr. CORLI
Sixth Amendment rights were violated by the introductio
Dr. McNeel inasmuch as such testimony was based on information gained
Mr. CORLEY at which Mr. CORLEY did not receive the appropriate Fifth Amendm
wamings, in addition to the fact that Mr. CORLEY’s counsel were not notified of
interviews. The State filed a Motion tor Rehearing raising the point that there was no
that the error was not harmless in accordance with the Chapman and Satterwhite cases. The

Motion for Rehearing was denied. It is clear that the Texas Court of Criminal Appeals, when

reviewing the tmal court's Findings of Fact and Conclusions of Law in regard to Mr

CORLEY’s Fifth and Sixth Amendment complaints as connected with the testimony of the

psychiatrists, found the error hartaful. By applying the Chapman and Satterwhite analysis to the
facts of this case, the admission of the psychiatrists’ testimony was clearly harmful.

In Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), this Court
held that a capital defendant's Fifth Amendment right against compelled self-incrimination
precludes the state from subjecting him to a psychiatric examination concerning future
dangerousness without first informing the defendant that he has a night to remain silent and that
anything he says can be used against him at a sentencing proceeding. Id. at 461-469. Once a
capital defendant is formally charged, the Sixth Amendment night to counsel precludes such an
examination without first notifying counsel that “the psychiatric examination (will) encompass
the issue of their client's future dangerousness." Id. at 471. This Court has also held that the
Chapman harmless error rule applies to the admission of psychiatric testimony in violation of
the Sixth Amendment right set out in Estelle. Satterwhite, 486 U.S. at 258.

The Chapman Court quoted the case of Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229,

L.Ed.2d 171 (1963), when it said: “The question is whether there is a reasonable possibility
that the evidence complained of might have contributed to the conviction." Chapman, 386 U.S
at 23 (emphasis added). Before a federal constitutional error can be held harmless, the Court
must be able to declare a belief that it was harmless beyond a reasonable doubt. Id. at 24. This
burden is borne by the beneficiary of the constitutional error. As such, the State must prove

beyond a reasonable doubt that the admission of the psychiatric testimony at the penalty phase

of Mr. CORLEY’s capital murder trial did not contribute to the verdict obtained.

The State argues: "The evidence properly admitted during the trial renders the admission

of psychiatric evidence ‘harmless error’." (Pet. for Writ of Cert. 10). The State cites as
support for this statement a number of cases that raise the question of sufficiency of the
evidence. This is not the correct test for harmless error and goes directly against the Satterwhite
case. This Court held in Satterwhite, that the question is not “whether the legally admitted
evidence was sufficient to support the death sentence, which we assume it was, but rather,
whether the State has proved ‘beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.’" Sattervhite, 486 U.S. at 258-25°

In support of its argument that the psychiatric testimony was merely cumulative, the State
argues that the crime was brutal and callous and that fact alone supports a death sentence. The
State claims that, as a result, the jury “most likely" did not place "great significance" on the
testimony of the psychiatrists (Pet. for Writ of Cert. 12). Taking Petitioner's argument on face
value, if such was the case, any constitutional error in a capital case would be harmless since
capital crimes are per se brutal and callous. The burden the State bears is not whether the jury
most likely did not place great significance on the testimony of the psychiatrists but whether,
beyond a reasonable doubt, the psychiatric testimony did not contribute to the verdict obtained

In Satterwhite, the Court, relying on the significant weight the prosecutor placed on the
testimony of Dr. Grigson, held that the State did not prove beyond a reasonable doubt that the
testimony did not contribute to the verdict. Id. at 260. The State argues that in this case it did
not emphasize the testimony of the psychiatrists to the jury in summation, and, as such, the

testimony did not taint the verdict. The State attempts to distinguish this case from Satterwhite

by pointing out that the Satterwhite prosecutor emphasized Dr. Grigson’s testimony and repeated

)

the word "sociopath" several times during argument. The State then makes reference to the

number of times Mr. CORLEY’s prosecutor referred to the psychiatrists in its summation during
the guilt/innocence phase. This is irrelevant inasmuch as both psychiatrists had testified at that
point only as to competency. The errors occurred during the punishment phase.

During the punishment phase of Mr. CORLEY ’s trial, the State points out that Dr.
Grigson was only mentioned four times, and Dr. McNeel was only mentioned once. A review
of the Satterwhite case and the Statement of Facts in this case shows that Mr. CORLEY’s
prosecutor went even farther than the Satterwhite prosecutor. In Satterwhite, the evidence
introduced at sentencing showed four prior convictions of crimes ranging from aggravated
assault to armed robbery. A police officer testified that Satterwhite’s reputation for being a
peaceful and law-abiding citizen was bad, and Satterwhite’s mother’s former husband testified
that Satterwhite once shot him during an argument. The State also introduced the testimony of
a Bexar County psychologist Betty Lou Schroeder, who testified that Satterwhite was a "cunning

"

individual" and a “user of people," with an inability to feel empathy or guilt. She testified that

in her opinion Satterwhite would be a continuing threat to society through acts of criminal
violence. Id. at 259. The final witness for the State was Dr. Grigson. This Court pointed out:

His testimony stands out because of his qualifications as a medical doctor
specializing in psychiatry and because of the powerful content of his message.
Dr. Grigson was the only licensed physician to take the stand. He informed the
jury of his educational background and experience, which included teaching
psychiatry at a Dallas medical school and practicing psychiatry for over twelve
years. He stated unequivocally that, in his expert opinion, Satterwhite “will
present a continuing threat to society by continuing acts of violence." He
explained that Satterwhite has "a lack of conscience" and is "as severe a sociopath
as you can be." . . . Dr. Gngson concluded his testimony on direct examination
with perhaps his most devastating opinion of all: he told the jury that Satterwhite
was beyond the reach of psychiatric rehabilitation. Id. at 259-260.

- 10-

This Court went on to discuss how the District Attorney had highlighted Dr. Grigson’s
credentials and conclusions in his closing argument, quoting the District Attorney:

Dr. James Grigson, Dallas psychiatrist and medical doctor. And he tells you that

on a range from one to ten he’s ten plus. Severe sociopath. Extremely

dangerous. A continuing threat to our society. Can it be cured? Well, it’s not

a disease. It’s not an illness. That’s his personality. That's John T. Satterwhite.

Id. at 260.

Based on the above quote from the District Attorney's closing argument, this Court noted
that the prosecution placed significant weight on Dr. Grigson’s powerful and unequivocai
testimony. After reviewing the evidence, this Court found it impossible to say beyond a
reasonable doubt that Dr. Grigson’s expert testimony on the issue of Satterwhite’s future
dangerousness did not influence the sentencing jury

At the Corley punishment phase, eleven individuals, composed of Jaw enforcement
officers, a district attorney, and private citizens, testified at the sentencing hearing that Mr:
CORLEY ’s reputation for being a peaceful and law-abiding citizen was bad. The State also
introduced, at the punishment phase, the testimony of psychiatrists, Dr. Tynus McNeel and Dr
James P. Grigson. Both psychiatrists informed the jury of their qualifications and testified as
to future dangerousness. Dr. Tynus McNeel previously testified at the guilt/innocence phase that
he was a licensed medical doctor specializing in psychiatry for the last eleven years; that he had
obtained an undergraduate degree from the University of Texas, a medical degree from the
University of Texas Medical School in Galveston, and had completed a year’s internship in
Florida and a three year residency training in psychiatry at the University of Texas Medical

School at John Sealy Hospital in Galveston. He also testified that he was a member of the Texas

Medical Association and the American Psychiatric Asseciation and was board certified as a

specialist in psychiatry by the American Specialty Board of Psychiatry (SF 2701-2702). Dr.

Grigson informed the jury at ihe guilt/innocence phase that he had been in private practice for
8'4 to nine years; that he had obtained a medical degree from Southwestern Medical School, and
completed a year’s internship at Baylor Medical Center, and a three year psychiatric residency
training at Timberlawn Hospital and Parkland Hospital. He also testified that he had taught at
Southwestern Medical School for 4% years and that he had been a consultant to Terrell State
Hospital, Texas Women’s University Health Center, and the Dallas County Health Department.

Dr. Grigson further testified that he was certified by the American Board of Neurology and

Psychology (SF 2728-2729).
Dr. McNeel testified at the punishment phase that:
a Mr. CORLEY showed strong traits of sociopathic type personality
disorder;
b There is no treatment for this disorder, and
There is a probability Mr. CORLEY would commit future crimes that
would constitute a continual threat to society (SF 2861, 2862, 2864).

| Dr. Grigson testified at the punishment phase that:

| a Mr. CORLEY is a severe sociopath;
b Mr. CORLEY is as severe a sociopath as can be found;
. C Mr. CORLEY has no conscience;
| d There is no treatment for this condition;
e He was 100% sure that Mr. CORLEY would commit future crimes;

: }
f. Mr. CORLEY will continue to do what he has done in the past--the

numbers will just nr worse;
g. Mr. CORLEY is a continuing threat to society; and
h. Mr. CORLEY is comparable to a malignant cancer on society that had to
be destroyed (SF 2868, 2875, 2876, 2879, 2885).
The prosecution highlighted Dr. Grigson’s and Dr. McWeel’s opinions in closing
argument:

Now, Dr. Grigson testified about a sociopath. He doesn’t learn from his
mistakes, he has no conscience, and he will get worse. Only, Dr. Grigson said,
well, Mr. Corley probably won't get any worse, because he can’t get any worse.
Killing is about as bad as you can get (SF 2907).

Now, we had this evidence, and we had Dr. McNeel, who testified that
he found that the Defendant had very little value for other persons, very little
value for the law, very little value for telling the truth, and altogether, no moral
values (SF 2908).

Then, there was the testimony of Dr. Grigson, who testified that the
Defendant suffered from an antisocial personality disorder. No, it’s not a mental
illness, it’s not a mental disease; it is just a personality disorder. If he didn't
have it quite so bad, he might be just mean, but he is way, way beyond being just
mean. . . It’s not a disease or an illness, or a sickness. But, as Dr. Grigson
said, it is a cancer--it is a malignancy, and there is nothing that you can do for
it but just cut it out. Because wherever that person lives and exists, he will have
the same personality. He will be subject to the same values that he has always
been subjected to. He has no conscience, he has no regard for others, he is just
a manipulator (SF 2908-2909).

eeeeee3neee8ee
You heard Dr. Grigson’s testimony, there is no way that he can be

treated; he doesn’t learn from experience; no conscience; a manipulator; the most
severe sociopath you can find (SF 2940).

7.

)
As is clear from the above, the prosecutor in Mr. CORLEY’s case stressed the

psychiatrists’ testimony even more than the prosecutor in the Satterwhite case. There is no merit
to the State’s argument that the psychiatrists’ testimony was not emphasized. Mr. CORLEY
agrees with the State that mental health experts are not necessary to sustain a conviction in a
capital case. However, the State chose to put forth two licensed physicians who referred to Mr.
CORLEY on numerous occasions as a sociopath and a malignancy on society with no hope of

improvement or rehabilitation. It is not possible that the licensed physicians’ testimony did not

influence or contribute to the jury's verdict in this matter. One cannct put licensed physicians
on the stand who testify that an individual is a malignant cancer on society that has to be
destroyed and then argue that such viruient testimony did not contribute or influence the jury in
the verdict obtained.

At the writ hearing, Clara Cole, a juror from the 1975 trial, testified that the complained
of testimony did not play a part in the decision to find in the affirmative the special issues
necessary for Mr. CORLEY to receive the death penalty (SF Writ Hearing 91). The juror’s
testimony was allowed over Respondent's strenuous objection (SF Writ Hearing 84-87, 91, 92).
Respondent's counsel based their objection on Texas Rule of Criminal Procedure 606(b). Rule
606(b) provides in pertinent part as follows:

Upon an inquiry into the validity of a verdict . . . a juror may not testify as to

any matter or statement occurring during the course of the jury’s deliberation or
to the effect _of hin a_that or her juror’s mind or em

influencing him to assent to or dissent from the verdict . . . or concerning his

mental processes in connection therewith . . . except that a juror may testify as
to any matter relevant to the validity of the verdict. . . . (App. 1)

The- most recent discussion of Texas Rule of Criminal Procedure 606(b) is found in

Buentello v. State, 826 S.W.2d 610 (Tex.Cr. App. 1992). The Texas Court of Criminal Appeals

-14-

}

held in Buentello that the test for admission of juror testimony at a hearing on a motion for new
trial is whether the matter sought to be elicited is deemed by the trial court to be relevant to the
validity of the verdict. What is considered "relevant" will be determined on a case-by-case
basis, taking into account the court’s experiences and observations, the grounds for a new trial
set forth in Tex.R. App. Pro. 30(b), and the case law which was developed under the predecessor
to 30(b), Art. 40.03, V.A.C.C.P. Id. at 614. As discussed in Buentello, prior to that decision,
many Texas cases held that "relevant" meant conduct constituting an “overt act." Id. at 613-14.
In fact, although the Buentello court urges the courts to utilize previous case law in their case
by-case analysis, there are no cases allowing a motion for new trial based on the thoughts of a
single juror, unexpressed in the jury room and not the result of inappropriate contact with
someone or something outside the jury room. Dunkins v. State, 838 S.W.2d 898, 901
(Tex.App. - Texarkana 1992). In other words, a juror’s subjective motivation for voting a
certain way is not a matter that affects the validity of the verdict unless that motivation is
produced by one of the items listed in § 30(b). (App. 2) Such is not the case in this situation.

The Buentello holding is limited to a motion for new trial scenario, and its analysis is

only applied in later cases in regard to a motion for new trial. Obviously, this is because a juror
is much more conipetent to testify to his mental processes, if deemed relevant, within thirty days
of trial as opposed to the twenty year lapse of time we have in this case. Furthermore, to apply
the Buentello analysis of Rule 606(b) to an Estelle situation is inappropriate. The purpose of
disallowing jurors to testify as to their mental process in reaching a verdict is to promote
freedom of deliberations, stability and finality of verdicts, and protection of jurors against

annoyance and embarrassment. Such factors should be given great weight in a capital case.

ee

oO

1

In any event, even if this Court saw fit to rely on Ms. Cole’s testimony that the
psychiatrists’ testimony had no effect on her verdict, that leaves eleven (11) other jurors mental
processes unaccounted for. While Respondent strenuously objects to the State’s attempt to prove
the error was harmless by introducing evidence in direct contravention of Rule 606(b), if it is
to be allowed, then it would be necessary for ali twelve (12) jurors to testify as to their mental
processes. This was not done at the evidentiary hearing. As such, the constitutional errors
complained of above amount to reversible errors because the State failed to prove beyond a
reasonable doubt that the errors did not contribute to the verdict obtained.

The State complains on various occasions that, because of the constitutional violations,
unless this Court grants review and reverses the Texas Court of Criminal Appeals, the State
must retry Mr. CORLEY and such a result is unreasonable. Of course, if the State had not
violated Mr. CORLEY ’s constitutional rights during his capital murder trial, this would not be
necessary. If the Court is looking at unreasonable results, the most unreasonabie result of the
constitutional violations was the invalid incarceration of Mr. CORLEY on death row for almost

twenty years

CONCLUSION

For the reasons stated herein, the Writ of Certiorari should be denied in this case.

RESPECTFULLY SUBMITTED,

WILSON, SHEEHY, KNOWLES, OF COUNSEL:
ROBERTSON & CORNELIUS
315 East Fifth Street MOODY & CROW
Post Office Box 7339 204 North Sixth Street
Tyler, Texas 75711 Waco, Texas 76701
Telephone 903/593-2561 Telephone 817/753-6455
Telecopier 903/593-0686 Telecopier 817/753-1232
)
A < | 4,

By: SZ lA, [4 ' fAiterLe — By: Kenneth H. Crow

“JAMES W. KNOWLES KENNETH H. CROW

State Bar of Texas No. 11625000 State Bar of Texas No. 05156000
By: é £LECf : La Ae:

TRACY G. BARNES
State Bar of Texas No. 01774900

ATTORNEYS FOR RESPONDENT

NO. 92-1716

IN THE SUPREME COURT OF
THE UNITED STATES OF AMERICA

OCTOBER TERM, 1992

THE STATE OF TEXAS,
Petitioner

Ve

EDWARD ELDON CORLEY,
Respondent

ON PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
FOR THE STATE OF TEXAS

APPENDIX
JAMES W. KNOWLES KENNETH H. CROW
TRACY G. BARNES
WILSON, SHEEHY, KNOWLES, MOODY & CROW
ROBERTSON & CORNELIUS 204 North Sixth Street
315 East Fifth Street Waco, Texas 76701
Post Office Box 7339 Telephone 817/753-6455
Tyler, Texas 75711 Telecopier 817/753-1232

Telephone 903/593-2561
Telecopier 903/593-0686

ATTORNEYS FOR RESPONDENT

APPENDIX 1

Rule 606. Competency of Juror as a Witness

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity
of a verdict or indictment, a juror may not testify as to any matter or statement occurring during
the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s
mind or emotions as influericing him to assent to or dissent from the verdict or indictment or
concerning his mental processes in connection therewith, except that a juror may testify as to
any matter relevant to the validity of the verdict or indictment. Nor may his affidavit or
evidence of any statement by him concerning a matter about which he would be precluded from
testifying be received for these purposes.

— SS SS

APPENDIX 2

RULE 30. DEFINITIONS AND GROUNDS
(b) Grounds. A new trial shall be granted an accused for the following reasons:
(1) Except in a misdemeanor case when maximum punishment may be by fine only,
where the accused is an individual who has been tried in his absence, unless otherwise

authorized by law, or has been denied counsel;

(2) Where the court has misdirected the jury as to the law or has committed some
other material error calculated to injure the rights of the accused;

(3) Where the verdict has been decided by lot or in any other manner than by a fair
expression of opinion by the jurors;

(4) Where a juror has received a bribe to convict or has been guilty of any other
corrupt conduct;

(5) Where any material witness of the defendant has by force, threats or fraud been
prevented from attending the court, or where any evidence tending to establish the innocence of
the accused has been intentionally destroyed or withheld preventing its production at trial;

(6) Where new evidence favorable to the accused has been discovered since trial;

(7) Where after retiring to deliberate the jury has received other evidence; or where
a juror has conversed with any other person in regard to the case; or where a juror became so

intoxicated as to render it probabie that his verdict was influenced thereby;

(8) Where the court finds the jury has engaged in such misconduct that the accused
has not received a fair and impartial trial; and

(9) | Where the verdict is contrary to the law and evidence.

(Adopted by Supreme Court and Court of Criminal Appeals effective Sept. 1, 1986.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2399%3A2. Public record. Not legal advice.