Opposition Brief — Powell v. Texas

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Supreme Court, U.S.

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~ JUL 22 1835

No. 94-1859

CLERK

IN THE UNITED STATES SUPREME COURT

OCTOBER TERM, 1994

DAVID LEE POWELL,

Petitioner,

v.

THE STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

To the Texas Court of Criminal Appeals

RESPONDENT’S BRIEF IN OPPOSITION

DAN MORALES MARGARET PORTMAN GRIFFEY

Attorney General of Texas Assistant Attorney General

JORGE VEGA

First Assistant Attorney General *DANA E. PARKER

Assistant Attorney General

DREW T. DURHAM

Deputy Attorney General LAURA BAYOUTH POPPS

For Criminal Justice Assistant Attorney General

*Counsel of Record P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 463-2080; Fax (512) 320-8132

- ———— ew a i

BEST AVAILABLE C oPY a

QUESTION PRESENTED

Whether a petitioner is constitutionally

entitled to a new trial on guilt-innocence on

the basis of alleged errors occurring solely

during the punishment phase of his

bifurcated capital murder trial.

TABLE OF CONTENTS

QUESTION PRESENTED ine eeeeeeee:

TABLE OF AUTHORITIES nw. sess...

Cree cease ennes

Fee. eee

CONSTITUTIONAL PROVISIONS INVOLVED.

STATEMENT OF THE CASE ieee.

A. Course of Proceedings

and Disposition Below _................

B. SUMIGN OE FM occ vcsnscscceeccsss.

3 Guilt-Innocence Phase

2. Punishment Phase _...........

REASONS FOR DENYING THE WRIT...

I. THE QUESTIONS PRESENTED FOR

REVIEW ARE UNWORTHY OF THIS

COURTS ATTENTION, occccccsccsecsessee.

Il. POWELL’S ARGUMENT SUPPORT-

ING HIS CLAIM THAT HE IS

CONSTITUTIONALLY ENTITLED TO

A NEW TRIAL WAS NOT PRESENTED

TO THE COURT BELOW AND IS NOT

A PROPER SUBJECT OF

CERTIORARI REVIEW. _................0..

Page

15

15

15

TABLE OF CONTENTS, continued

Page

Iii. POWELL HAS NOT ASSERTED ANY

CONSTITUTIONAL BASIS FOR

WHICH HE IS ENTITLED TO A NEW

MIE = GS ccnetigtdecchcccat ste eanid-teksaadh<ipsnkss- 17

A. The State did not repeat the

constitutional violation condemned

in Powell’s first capital murder

Ne ish is hibiioinmeintneeees ts «<: 19

1. No Sixth Amendment

Violation Occurred.............. 19

ys No Fifth Amendment

Violation Occurred. ........... 22

B. The presence of a large number of

uniformed officers in the courtroom

during the final arguments at the

punishment phase of Powell’s trial

does not entitle him to a new trial. .. 27

I hpi s oi eae, tcvierevarinreveren 29

-ivV-

TABLE OF AUTHORITIES

Cases Page

Battie v. Estelle, 655 F.2d 692 (Sth Cir. 1981) _...... 25

Beck v. Washington, 369 U.S. 541 (1962) ___......... 16

Bd. of Directors of Rotary Int'l v. Rotary Club,

Cr Wer Seeeee 2 eee 17

Buchanan v. Kentucky, 483 U.S. 402 (1987) __....... 21,24

Cabana v. Bullock, 474 U.S. 376 (1986) —_............ 18

Cardinale v. Louisiana, 394 U.S. 437 (1969) eas 16

Estelle v. Smith, 451 U.S. 454 (1981) wee. 20,23,25

Exxon Corp. v. Eagerton, 462 U.S. 176 (1987) _.... 17

Fuller v. Oregon, 417 U.S. 40 (1974) oe. 17

Gardner v. Florida, 430 U.S. 349(1977) ww... 18

Godchaux Co., Inc. v. Estopinal,

Fr Se I aaa nme pccnneriaiinines 17

Heath v. Alabama, 474 U.S. 82 (1985) ooo... 16

Hill v. California, 401 U.S.797 (1971) wees. 16

Illinois v. Gates, 462 U.S. 213 (1983) wn. eeeeeeees. 16

Irvin v. Dowd, 366 U.S. 717 (1961) oo... eee. 28

McKoy v. North Carolina, 494 U.S. 433 (1990) _... 18

Miranda v. Arizona, 384 U.S. 436 (1966) ___........ 12,22

Moore v. Dempsey, 261 U.S. 86 (1923) 0.2... 28

Satterwhite v. Texas, 486 U.S. 249 (1988) ww... 20

TABLE OF AUTHORITIES, continued

Cases

Sheppard v. Maxwell, 384 U.S. 333 (1966)

Skipper v. South Carolina, 476 U.S. 1 (1986) _.....

Street v. New York, 394 U.S. 576 (1969)

serene eenee

Tacon v. Arizona, 410 U.S. 351 (1973)

eee eneeeeoee

Tague v. Louisiana, 444 U.S. 469 (1980)

Turner v. Louisiana, 379 U.S. 466 (1965)

eeeeeeree

Constitutions and Statutes

U. S. Const., amend. V

eee eee eee eee eee ee eee eee eee eee ee

TOP e eee eee ee ee eee eee eee eee eee eee)

U. S. Const., amend. VI

U. S. Const., amend. XIV

28 U.S.C. § 1257(a)

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Tee Pee eee ee eee eee eee eee eee eee eee eee

TEX. CODE CRIM. PROC. ANN. art. 44.29(c)

(Vernon Supp. 1995)

Tee Pee ee eee ee eee eee ee eee eee eee eee)

RULE 10.1, RULES OF THE SUPREME COURT

Page

22,23

17,18

No. 94-1859

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1994

DAVID LEE POWELL,

Petitioner,

V.

THE STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari

To the Texas Court of Criminal Appeals

RESPONDENT'S BRIEF IN OPPOSITION

TO THE HONORABLE JUSTICES OF THE SUPREME

COURT:

NOW COMES the State of Texas, Respondent! herein,

by and through the Attorney General of Texas, and files this

Brief in Opposition.

'For clarity, Respondent will be referred to as “the state” and

Petitioner David Lee Powell as "Powell."

OPINION BELOW

The Court of Criminal Appeals affirmed Powell’s

conviction but vacated and remanded his death sentence for

further proceedings consistent with that court’s opinion. Powell

v. State, 897 §.W.2d 307 (Tex. Crim. App. 1994).

JURISDICTION

Powell seeks to invoke the jurisdiction of this Court

under the provisions of 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

Powell bases his claims upon the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution.

STATEMENT OF THE CASE

A. Course of Proceedings and Disposition Below

By a reindictment2 on April 4, 1991, in the 167th

District Court of Travis County, Powell was charged with the

capital murder of Ralph Ablanedo, a police officer acting in the

lawful discharge of an official duty. Powell was tried by a jury,

which on November 6, 1991, found him guilty as charged in the

indictment. On November 15, 1991, following a separate

2 Powell was tried and convicted for the same offense and

sentenced to death in 1978. The Court of Criminal Appeals affirmed the

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

petition for writ of certiorari, this Court vacated and remanded for further

consideration. Powell v. Texas, 487 U.S. 1230 (1988). On remand the

Court of Criminal Appeals again affirmed, Powell v. Texas, 767 S.W. 2d

759 (Tex. Crim. App. 1989), and this Court again granted Powell’s petition

for writ of certiorari. In Powell v. Texas, 492 U.S. 680 (1989), this Court

reversed the judgment of the Court of Criminal Appeals. Subsequently,

Powell was retried; that retrial is the subject of the instant petition for writ

of certiorari.

punishment hearing, the jury answered affirmatively two special

sentencing issues,” and the trial court imposed the death

sentence.

Powell’s conviction and death sentence were

automatically appealed to the Texas Court of Criminal Appeals,

which on December 7, 1994, affirmed the conviction but vacated

the death sentence and remanded for a new sentencing hearing.

Powell v. State, 897 S.W.2d 307 (Tex. Crim. App. 1994). The

state filed a motion for rehearing, which was denied on February

15, 1995. These proceedings followed.

B. Statement of Facts

1. Guilt-Innocence Phase

In the early morning hours of May 18, 1978, Sheila

Meinert, a friend of Powell’s, was driving Powell to south

Austin in Powell’s red Ford Mustang at his request. 24 SR 116-

18.4 Powell was very upset. 24 SR 117. Powell had a

machine gun in the back seat of the car, as well as a live hand

grenade, some other guns, ammunition, handcuffs, books about

weapons, radical political literature, a knapsack containing

approximately $6,000 of distributable methamphetamine, a flyer

consisting of a price sheet for selling methamphetamine, and

other written notes or “tally sheets” containing names of buyers

3 Instead of submitting to the jury the special issues in effect at the

time of Powell’s offense, the trial court replaced the “deliberateness” special

issue with an “anti-parties” special issue which was the product of then

recent amendments to article 37.071 of the Texas Code of Criminal

Procedure. On appeal, the Court of Criminal Appeals concluded that the

trial court’s actions were contrary to legislative mandate because the

amended portions of the code dealing with the special issues applied only to

offenses committed on or after September 1, 1991. It is on this basis that

the court remanded Powell’s case for a new sentencing hearing. Powell v.

State, 897 S.W. 2d at 317.

4 “SR” refers to the statement of facts from Powell’s trial,

preceded by volume number and followed by page number. “Tr.” refers to

the transcript of Powell’s trial.

and calculations of profits. 24 SR 130; 25 SR 228-262; 26 SR

610-13; 28 SR 864-69.

Ralph Ablanedo, a police officer in a marked patrol car,

stopped Meinert and Powell on Live Oak Street in Austin. 24

SR 119. Meinert got out of the car and approached Officer

Ablanedo, who asked to see her driver’s license. 24 SR 119.

Meinert responded that she had lost her license at which time the

officer asked to see Powell’s driver’s license. 24 SR 120-21.

Officer Ablanedo attempted to run a computer check on

Powell’s license but the dispatcher informed him that the

computers were down. 26 SR 524-25. Officer Ablanedo issued

Meinert a citation and allowed her and Powell to proceed. 24

SR 124.

Immediately after Meinert and Powell drove off, the

dispatcher notified Officer Ablanedo that there was a possible

misdemeanor theft warrant on Powell. 26 SR 527. Officer

Ablanedo again stopped Meinert and Powell, and Meinert again

got out of the Mustang to approach the officer. 24 SR 124-25.

Suddenly Meinert heard a “deafening noise,” which she later

learned were gunshots. 24 SR 125, 128. Meinert ran back to the

Mustang and “started driving hysterically.” 24 SR 128. At trial,

Meinert testified that she was surprised that Powell would do

something like shoot a police officer. 24 SR 158-59. However,

she testified that Powell used drugs and that his behavior had

become progressively more “extreme.” 24 SR 159.

Bobby Bullard was driving by at the time of the murder

and testified that he saw a police car and a Mustang stopped on

the side of the road. 25 SR 359. The policeman got out of his

car and was walking between the two cars when Bullard heard

two to four shots and saw the policeman go down. 25 SR 359-

61. The officer attempted to stand up but was immediately shot

again by an automatic weapon. 25 SR 361. Bullard saw a man

between the two front seats of the Mustang shooting through

the side and back of the car with a rifle. 25 SR 363. Bullard

identified Powell as the man he saw in the Mustang. 25 SR 367.

Bullard also thought he saw a portion of someone else’s head

under the steering wheel of the Mustang. 35 SR 393. Bullard

went to help Officer Ablanedo and heard him say, “The damn

girl.” 25 SR 380.

Immediately after this shooting, Meinert drove to a

nearby parking lot, stopped the car, and Powell exchanged

gunfire with more police officers at this location. 24 SR 132-33.

Powell gave Meinert the hand grenade and told her to unwrap

the tape around it. 24 SR 133-34. She gave the grenade back

to Powell but did not recall what he did with it. 24 SR 134.

Officer Joe Villegas was the first police officer on the scene of

the second shooting and testified that he immediately came

under heavy fire after pulling into the parking lot. 27 SR 731. A

white female then exited the Mustang screaming with her hands

up. 27 SR 733. Officer Villegas yelled at her to lay down in the

middle of the asphalt. 27 SR 733.5 Officer Villegas saw a

white male running towards Oltorf Street. 27 SR 733. He shot

at the man but missed, and then lost track of him. 27 SR 733-

34. Officer Villegas found a hand grenade lying about ten to

fifteen feet from his squad car. 27 SR 735. Powell was later

found hiding under some bushes at the nearby Travis High

School. 25 SR 313. When Officer Villegas saw Powell at the

police station, he knew Powell and recognized him as the person

who had shot at him. 27 SR 736.

Officer Bruce Mills testified that he arrived at the first

scene after Officer Ablanedo had been shot and that Officer

Ablanedo told him “that a girl and a guy were in the car, and that

they were armed with a shotgun or a machine gun is what he

said, and then he said, ‘He got me with the shotgun.” 29 SR

1082. Officer Ablanedo died as a result of multiple gunshot

injuries. 26 SR 640.

5 Meinert was arrested and taken to jail. 27 SR 733. She was later

convicted of the attempted capital murder of Officer Villegas. 24 SR 135-

36.

2. Punishment Phase

State’s Evidence

Fred Ligarde, an FBI agent at the time of the murder,

testified that on May 19, 1978, Powell and his attorney gave

consent to search Powell’s residence. 31 SR 4-5. Inside the

house were a black cylinder containing a hand grenade, some

small vials of methamphetamine, some .45 caliber ammunition

and 7.62 Russian ammunition, reloading dice, various chemicals

and lab equipment for manufacturing methamphetamine, and

military manuals on military tactics and the operation of machine

guns and other weapons which are issued by the United States

government. 31 SR 16, 22, 26.

James Walsh, a police officer, knew Powell prior to the

murder and stated he had a bad reputation in the community for

being a peaceable and law-abiding citizen. 31 SR 41-2.

Dr. Clay Griffith, a psychiatrist who did not examine

Powell, testified on the basis of a hypothetical that Powell posed

a continuing threat to society. 31 SR 82. Dr. Griffith further

testified that, although the use of methamphetamines may affect

a person’s personality, it does not cause a person to kill. 31 SR

83-4. On cross-examination, Dr. Griffith testified that a person

can develop a psychosis from abusing methamphetamines. 31

SR 103. However, on redirect, Dr. Griffith testified that even

assuming such a psychosis, it did not change his opinion that

Powell was a future danger. 31 SR 106.

Defense Evidence

Bill Powell, Powell’s father, testified that his son did very

well in school, had a lot of friends and was an “exceptionally

good child” who never had any behavioral problems growing up.

32 SR 122-28. Powell was valedictorian of his high school class

and was accepted into the honors program at the University of

Texas. 32 SR 129-32. However, after going to college,

Powell’s political views began to cause problems with his

parents and they eventually lost all contact with him for a few

years. 32 SR 132-33. In 1977, Bill Powell saw his son in Dallas

and he appeared thin, haggard and disheveled. Bill Powell

testified that Powell would not be a future threat to society. 32

SR 141. He stated on cross-examination that Powell had never

admitted to him that he committed the murder. 32 SR 142.

Frida Malone, Powell’s aunt, testified that Powell always

had a very nice personality and was interested in many different

things as a child. 32 SR 154-55. However, the last time she

saw him before the murder in 1977, he looked “extremely

abnormal”. 32 SR 158. Malone suggested to Powell’s mother

that Powell see a psychiatrist but that same night Powell

disappeared from his parents’ house in the middle of the night.

32 SR 159-60. Malone testified that Powell could do a lot of

good for the world because of his intelligence and that she loved

Powell very much. 32 SR 179-80.

Dr. Lester Grinspoon, a psychiatrist, testified that

amphetamine use can lead to psychosis, meaning that the person

“loses touch with reality,” and some of the manifestations may

be “bizarre behavior, poor judgment, hacullinations [sic],

allusions, that sort of thing.” 32 SR 197-99. He further

testified that anyone who uses tremendous amounts of

methamphetamine, regardless of his personality, will become

aggressive and dangerous and that taking enough of the drug

will cause a paranoid psychosis. 32 SR 209. Finally, he testified

that a psychiatrist cannot predict future dangerousness. 32 SR

210-11.

Dr. John Luker testified that Powell sought help from

him in 1977 for his methamphetamine dependency and that he

treated Powell by prescribing cyclert, a central nervous system

stimulant, as a substitute drug. 32 SR 241-43. He stopped

seeing Powell in December of 1977, and that was also the last

time he prescribed cyclert for Powell. 32 SR 246. Powell had

not stopped using drugs at that time. 32 SR 246. Dr. Luker

testified he was a recovering addict himself. 32 SR 248.

George Wheat, a clinical psychologist with the Texas

Department of Corrections (“TDC”) testified that Powell was

selected for the work capable program in TDC which selects

only those inmates considered not to be dangerous. 32 SR 252-

i i a tpi

8

57. Wheat testified that Powell was helpful to other inmates,

teaching them to read and write. 32 SR 262. On cross-

examination, Wheat testified Powell had had some minor

disciplinary infractions in prison for refusing to obey certain

rules and orders. 32 SR 265-68.

Helen Wallace, a licensed vocational nurse at TDC,

testified as to Powell’s good character and stated she did not feel

he would pose a future threat to society. 32 SR 272-92. Ron

Hampton, a police officer from Washington, D.C., who is

involved in numerous community help programs, testified that

Powell had arranged some speaking engagements for him in

Austin and that it would be a waste to execute Powell because

he had a lot to offer society. 32 SR 317-20. Donnette Moss, an

advisor within the Plan II Honors Program at the University of

Texas, testified that when Powell entered college he was a

sweet-natured person and was concerned about the well-being of

others. 32 SR 337. Powell scored an almost perfect score on

the SAT college entrance exams. 32 SR 338. Moss testified

that Powell should not be executed and was of use to society.

32 SR 343. David Van Os, an attorney who met Powell in the

Honors II program at UT, testified that when he first met

Powell, Powell was a kind person whom anybody would be glad

to have for a friend. 33 SR 353-54. He stated that Powell has a

lot to offer society. 33 SR 360.©

Dr. Richard Psikoff, a psychiatrist who had examined

Powell, testified about Powell’s past and his family history of

mental illness and depression. 33 SR 394-400. He testified that

after Powell went to college he became depressed and turned to

drugs. 33 SR 401-05, 412, 437. Dr. Psikoff testified that in

July of 1977 Powell went to Dr. Luker for help with his drug

problem. 33 SR 425-26. He stated that Dr. Luker’s

incompetent use of cyclert to treat Powell only exasperated the

problem because Powell was using the cyclert in conjunction

© Other witnesses that testified in favor of Powell’s good character

were Sissy Farenthold, 33 SR 539; Clarence Brandeley, 33 SR 547; John

Wheat, 33 SR 565.

with the methamphetamines instead of as a substitute for them.

33 SR 426-32, 36. He testified that

Between July and December, David starts to

believe we’re into World War III. We have an

invasion coming. Remember, we said you can

go crazy on this stuff. David buys machine guns.

He buys hand grenades. ... He gets so paranoid

he can’t even go out of the house. He’s

shooting speed. He’s taking cylert [sic]... .

Four months later, he kills a policeman.

33 SR 431. On cross-examination, Dr. Psikoff testified that he

thinks Powell “was quite crazy in 1978” and that at the time he

killed Officer Ablanedo “he was insane on the drugs that he had

taken.” 33 SR 458-59. At this time, the state asked Dr. Psikoff

whether he had read Dr. Richard Coon’s testimony from the

prior trial and his report made after examining Powell, to which

Dr. Psikoff responded he had. 33 SR 460. Dr. Psikoff disagreed

with Dr. Coon’s conclusion that Powell was legally sane at the

time of the murder. 33 SR 461. When asked if Powell was

insane and unable to conform his conduct to the requirements of

the law on May 18, 1978, Dr. Psikoff testified as follows:

You have to be very careful when you say

that because I know that, as a consequence of

Dr. _Luker’s’ treatment and David’s

administration, that he was insane. But I’in not

telling you that David wasn’t a party to the

administration of those drugs. I’m not telling

you that he was insane simply because somebody

else came along.

I’m telling you that David was already a

drug user when he went to Dr. Luker, and that

when he was finished with that treatment, he was

truly insane. When he killed policeman [sic],

yes, he was insane. He was insane as a result of

the drugs he was on. That is correct.

33 SR 495. Dr. Psikoff stated that he knew the difference

between the defense of insanity at the guilt-innocence phase and

the use of voluntary intoxication as a mitigating circumstance at

10

punishment, and testified that he felt Powell’s evidence of

insanity fell into the latter category. 33 SR 496. However, he

maintained that Powell’s voluntary intoxication had rendered

him insane at the time of the murder. 33 SR 496. Dr. Psikoff

testified that he did not think the reason Powell so heavily armed |

himself had anything to do with his desire to protect his drug |

business. 33 SR 514. He stated that he thought “David was

quite psychotic when he killed a policeman{,]” that Powell |

thought World War III was approaching and that there would be

a fascist invasion for which he had to prepare. 33 SR 514-15,

519, 523. Finally, Dr. Psikoff testified that Powell had admitted

to him that he killed Officer Ablanedo.

Dr. James Marquartz testified that it is impossible for

psychiatrists to make any sort of accurate long-term prediction

regarding a person’s future dangerousness. 34 SR 595.

Finally, Powell’s mother testified that Powell was a very

good student and was “a delight” as a child. 34 SR 630.

However, Powell changed once he went off to college and “took

on a lot of radical thinking.” 34 SR 633. Nevertheless, Powell’s

mother was shocked to find out Powell had shot a police officer

and thought the police must have the wrong person. 34 SR 641.

She testified that Powell is a very caring and sweet person and

would not commit future acts of violence. 34 SR 652.

State’s Rebuttal

Bruce Hobbs, the owner of an auto parts store and

service center that had done some work on Powell’s car,

testified that Powell’s check to him bounced. 34 SR 672.

Hobbs eventually found out where Powell lived and attempted to

retrieve the car. When Powell came to the front door he was

holding by a collar a “pretty mean-looking dog” that was trying

to lunge at Hobbs. 34 SR 675. When Hobbs said he intended to

take the car, Powell said, “Well, I wouldn’t do that if I were

you.” 34 SR 675. Hobbs pulled a gun and held it on Powell and

the dog until a friend of his arrived and took the car. 34 SR

675-77. As Hobbs walked toward his own truck, “the door

opened and here came the dog.” 34 SR 677. Hobbs made it

1]

safely into the truck and threatened Powell he had better get the

dog away from the truck, which Powell did. 34 SR 677. Hobbs

did not know if Powell deliberately released the dog or whether

it was an accident. 34 SR 677.

Steve Edwards, a former assistant district attorney for

Travis County, testified that at a prior hearing regarding Powell,

Powell kicked a security guard when the guard pulled him away

from the railing where Powell was attempting to lean over and

speak with or kiss a family member. 34 SR 688.

George Haywood, a transportation officer with the

Travis County Sheriff's Office, testified about an incident where

Powell was angry that he was not given some requested

eyedrops and cursed at Haywood. 34 SR 699-701.

Lee Ramos, the maintenance man who worked for one of

Powell’s former landlords, testified that he found Powell

attempting to break into a storage room to retrieve his property

that had been stored there after his eviction. 34 SR 717-19.

Ramos left to call the police, and Powell started following him

with a knife. 34 SR 720. When Ramos stopped at a red light,

Powell got out of the car he was in and attempted to approach

Ramos, but Ramos jumped the curb and ran all the red lights

until he got home. 34 SR 721-24. Powell went to Ramos’

house, but Ramos’ wife would not let Powell in the house. 34

SR 724. Powell told Ramos’ wife that he did not mean to scare

Ramos. 34 SR 736.

Wesley Wallace, the medical doctor working in the

emergency room on May 18, 1978, testified that he found

Powell to be of normal mental status with no abnormality. 34

SR 752.

Dr. James Grigson, a psychiatrist, testified on the basis of

a hypothetical that Powell is a continuing threat to society and a

very dangerous person. 34 SR 795. He also testified that drugs

do not cause people to be involved in goal-directed, criminal-

type activities. 34 SR 795. Dr. Grigson testified that Powell’s

medical records show he was diagnosed as recently as 1988 and

1989 as a sociopath.

Dr. Kenneth Timken, a psychiatrist who examined

Powell several years before the murder, testified about the

12

results of his examinations. 34 SR 837-42. Dr. Timken testified

that Powell did not reflect any guilt about a car theft charge and

that he felt Powell represented a severe character neurosis. 34

SR 838-39. At that time, he felt Powell exhibited an evolving

sociopathic personality. 34 SR 840, 842. Powell told the

doctor he never felt guilt. 34 SR 840. On a following session,

Dr. Timken noted a “highly narcissistic character disorder,”

meaning a person “who has little capacity for empathy with

other people and who is centered in their own wishes and

impulses without regard for other human beings”. 34 SR 841. |

Dr. Timken testified he was not surprised to learn that Powell

later murdered a police officer. 34 SR 842. Finally, Dr. Timken

testified that drug use can accentuate certain kinds of behavior,

but does not change the basic characterological makeup of the

person. 34 SR 843.

Finally, the state called Dr. Richard Coons to the stand.

34 SR 850. On voir dire examination outside the presence of the

jury, Dr. Coons testified that \efore he examined Powell, he

gave Powell his Miranda’ warnings and received clearance

from Powell’s attorney. 34 SR 850-51.8 Dr. Coons further

stated that he was not even going to broach the subject of

Powell’s future dangerousness and intended only to testify

regarding Powell’s sanity at the time of the murder. 34 SR 852.

Back in the presence of the jury, Dr. Coons testified that Powell

“did not have substances in his body at [the time of the murder]

which rendered him unable the [sic] know that his conduct was

wrong or unable to conform his conduct.” 34 SR 862. Dr.

Coons disagreed with Dr. Psikoff's conclusions that Powell

thought World War III was coming and was under a drug

psychosis. 34 SR 863. Dr. Coons then explained how Powell

had related the events leading up to the murder: i

7 Miranda v. Arizona, 384 U.S. 436 (1966).

8 Later, Dr. Coons again testified that Powell told him he did not

want to discuss the offense until he cleared it with his lawyer, and that

subsequently Powell did clear it with his lawyer and then spoke to the

doctor about the offense. 34 SR 877.

ree a ia

13

He indicated to me that he was a speed dealer

and that he had armament to protect himself from

people taking money or drugs from him; that--he

said that the gun that--the automatic weapon, he

had it for months to a year; he had gotten it

because he carried a lot of money. . . . |

‘It’s a symbol of authority, and to keep rustlers

and varmints off my tail.” He said, ‘People would

think you were crazy if you showed up and didn’t

have that kind of hardware.’ And he indicated that

his business consisted of--he had taught someone

how to make methamphetamine. He was getting

half a pound to a pound a week, and was selling it

throughout Texas, and his income was in the

seven, eight, ten thousand dollar a week range

from the sale of methamphetamine.

. .. Lasked him why he had the machine gun.

He said that, ‘It wasn’t to be used for killing some

young punk like that. It was for a declaration of

the seriousness of intent,’ and that, with regard to

the offense, he indicated that he and Sheila

Meinert were stopped, the officer then checked

their identification, wrote her a ticket, let her go,

and that--stopped them again... . Sheila jumped

out of the car. He, as he had fantasized in the

past--I asked him if he had ever thought that he

might kill an officer at any time, and he indicated

that his idea was that it might occur out on a

country road.

He said, ‘I always envisioned it happening on a

country road, and I had just gotten lost after

shooting an officer.’

He indicated that when the officer was coming

up to the car to address him, he said, ‘I waited

until the nth minute before I shot. I didn’t want to

shoot some jerk that was coming up to say happy

motoring.’

a a Nai kB ot a |

14

He indicated that the whole thing was to avoid

being caught--that is, as to killing the officer--was

to avoid being caught. It’s senseless otherwise.

e444

He indicated that--he said, ‘As the officer

stopped us, it was a routine check. At the time I

had about $10,000 worth of checks out.’ And

then, ‘He gave my license back, and then he pulled

us over again. I felt like everything I had been

working for was going down the drain.’

He said, ‘There was dope in the trunk and a

package with a pistol... .’

.... [H]e indicated that the specific reason that

he shot the officer was to avoid being arrested,

that -- he said, ‘I would have been in almost as

much trouble if I had been arrested.’

34 SR 863-66. Dr. Coons testified that Powell did not act

remorseful at all.? Powell talked about how “I killed a cop and

I’m sort of a folk hero[.]” 34 SR 866.

Defense Rebuttal

Dr. Marquartz testified that he had done a study on

people that Dr. Grigson had testified against in capital murder

cases and that his predictions were inaccurate. 34 SR 885-86.

Dr. Richard Wall testified similarly regarding Dr.

Grigson’s predictions. 34 SR 888-91.

Dr. Psikoff testified that as of 1990 or 1991, Powell has

no antisocial personality problems. 34 SR 895. He further

testified that in his earlier testimony he did not intend to imply

that he thought the defense of legal insanity had been raised in

the case, and that “I am not saying that he was insane[.]” 34 SR

896-97. Psikoff admitted that Powell had told him he shot the

9On cross-examination Dr. Coons acknowledged that he had

previously testified that Powell did show some remorse, but stated he was

having trouble remembering and was a little surprised he had testified that

way. 34 SR 87.

eae

15

officer and had drugs in the car and did not want to be arrested.

34 SR 897. He stated that Powell certainly knew the man was a

police officer. 34 SR 898. On cross-examination, Psikoff

stated that he had never said Powell was insane at the time of the

offense and that if he had stated Powell did not know his

conduct was wrong when he shot Officer Ablanedo he had

misspoken because “he was certainly sane at the time.” 34 SR

914-15. He further stated that Powell killed the policeman

because he did not want to go to jail. 34 SR 915.

REASONS FOR DENYING THE WRIT

I.

THE QUESTIONS PRESENTED FOR REVIEW ARE

UNWORTHY OF THIS COURT'S ATTENTION.

Rule 10.1 of the Rules of the Supreme Court provides

that review on writ of certiorari is not a matter of right, but of

judicial discretion, and will be granted only when there are

special and important reasons therefor. Powell advances no

special or important reason in this case, and none exists.

Further, the issues in this case involve only the application of

established constitutional principles to the facts. Thus, the

petition presents no important question of law to justify this

Court's exercise of its certiorari jurisdiction.

Il.

POWELL’S ARGUMENT SUPPORTING HIS CLAIM

THAT HE IS CONSTITUTIONALLY ENTITLED TO

A NEW TRIAL WAS NOT PRESENTED TO THE

COURT BELOW AND IS NOT A PROPER SUBJECT

OF CERTIORARI REVIEW.

In the court below, Powell requested that his entire

conviction be reversed, but he never asserted the alleged

constitutional basis that he now asserts entitles him to a new trial

16

on guilt-innocence. In the instant petition, Powell asserts he is

constitutionally entitled to a reversal of his conviction as

opposed to merely a reversal of his death sentence. While

apparently conceding that the complained-of errors occurred

solely during the punishment phase of his bifurcated trial and,

therefore, after the jury’s verdict of guilt, Powell now asserts

that the trial court still had the power at the conclusion of the

punishment proceedings to override the jury’s guilty verdict, or

at least to grant a new trial. See Petition at 8-9. He therefore

contends that errors during the punishment phase of his triai

could have led to his conviction because the trial judge could

have been affected by the alleged errors and perhaps would have

decided to override the jury’s verdict of guilt except for the

alleged errors. Jd. Not only is this contention completely

without merit, it was never presented to the Texas state courts

and cannot be asserted for the first time in this Court as a basis

for a reversal of Powell’s conviction.

The cases are legion that this Court will not decide issues

raised for the first time on petition for certiorari, and that the

Court will not decide federal questions not raised and decided in

the court below. E.g., Heath v. Alabama, 474 U.S. 82, 87

(1985); Illinois v. Gates, 462 U.S. 213, 218-22 (1983); Tacon v.

Arizona, 410 U.S. 351, 352 (1973); Hill v. California, 401 U.S.

797, 805-06 (1971); Cardinale v. Louisiana, 394 U.S. 437, 438

(1969). In articulating this requirement, the Court has stressed

the long-standing nature of the rule: "[I]n Crowell v. Randall,

10 Pet. 368 (1836), Justice Story reviewed the earlier cases

commencing with Owings v. Norwood's Lessee, 5 Cranch 344

(1809), and came to the conclusion that the Judiciary Act of

1789, 20 § 25, 1 Stat. 85, vested this Court with no jurisdiction

unless a federal question was raised and decided in the state

court below. ‘If both of these do not appear on the record, the

appellate jurisdiction fails.' 10 Pet. 368, 391." Cardinale, 394

U.S. at 439. To properly invoke the jurisdiction of the Court, it

is crucial that the federal question not only be raised in the prior

proceedings, but that it be raised at the proper point. Beck v.

Washington, 369 U.S. 541, 550 (1962); Godchaux Co., Inc. v.

17

Estopinal, 251 U.S. 179, 181 (1919). Moreover, on direct

review,

[w]hen ‘the highest state court has failed to pass

upon a federal question, it will be assumed that

the omission was due to want of proper

presentation in the state courts, unless the

aggrieved party in this Court can affirmatively

show the contrary.’

Bd. of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537,

550 (1987), quoting Exxon Corp. v. Eagerton, 462 U.S. 176,

181 n.3 (1983), quoting Fuller v. Oregon, 417 U.S. 40, 50 n.11

(1974), quoting Street v. New York, 394 U.S. 576, 582 (1969).

Consequently, because the federal question raised in the instant

petition for certiorari review was neither raised nor decided by

the Court of Criminal Appeals, this Court cannot decide the

issue.

IIL.

POWELL HAS NOT ASSERTED ANY

CONSTITUTIONAL BASIS FOR WHICH HE _ IS

ENTITLED TO A NEW TRIAL.

Powell asserts he is entitled to an entire new trial, as

opposed to merely the resentencing the Court of Criminal

Appeals ordered, because of certain alleged constitutional

violations occurring during the punishment phase of trial. This

claim is wholly without merit.

Initially, Powell incorrectly asserts that the Court of

Criminal Appeals left “open” the question of whether Powell

was to receive a new trial or merely a new punishment

proceeding. This is incorrect. The court in its opinion clearly

stated “We affirm appellant’s conviction, but vacate and remand

his sentence for further proceeding in accordance with Article

44.29(c).” Powell, 897 S.W.2d at 309. Article 44.29(c)

requires that when error in a capital murder trial affects the

punishment phase only, the court “shall not set aside the

conviction but rather shall commence a new punishment hearing

18

as if a finding of guilt had been returned.” Tex. Code Crim. Pro.

Ann. art. 44.29(c) (Vernon Supp. 1995).!° Accordingly, from

the court’s language, it is entirely clear that the court never

intended to grant a new trial to Powell on the basis of the errors

found.

Second, as shown above, Powell asserts no basis for an

entitlement to a new trial on guilt-innocence because the errors

of which he complains occurred during the punishment phase

proceedings, not during the guilt-innocence phase proceedings.

The jury had already found Powell guilty of capital murder and

handed down its verdict before it considered any punishment

phase evidence. As stated, in order to sidestep this obvious

hurdle to his request for a new trial, Powell asserts that the trial

judge “retained the power to make rulings affecting guilt as well

as punishment” until after the punishment phase of trial and that,

therefore, the alleged problems arising in punishment could have

affected the court’s judgment on the verdict of guilt against

Powell. Of course, Powell asserts absolutely no basis in Texas

law by which a trial court could accept the jury’s verdict of guilt,

proceed to the punishment phase of trial, and then override the

jury’s verdict of guilt and order an acquittal at the conclusion of

the punishment phase proceedings. Moreover, even assuming

10 Conceding that this is an inappropriate time, procedurally, to

lodge such a complaint, Powell nevertheless suggests that there may be

some constitutional infirmity with article 44.29(c) because it allows for

resentencing as opposed to a new trial on guilt-innocence when error occurs

only in the punishment phase of trial. He asserts that the jury’s initial

finding of guilt does not result in a judgment being entered, and that a final

judgment is not rendered until after the punishment phase proceedings,

apparently implying that the trial court renders only one final judgment that

applies to both of the jury’s findings and that this judgment cannot be

reversed only in part as to sentencing. Of course, this Court has repeatedly

vacated a petitioner’s death sentence and remanded for resentencing when

the complained-of error affected only the punishment decision See, e.g.,

McKoy v. North Carolina, 494 U.S. 433, 435 (1990), Skipper v. South

Carolina, 476 U.S. 1, 8-9 (1986); Cabana v. Bullock, 474 U.S. 376, 392

(1986); Gardner v. Florida, 430 U.S. 349, 362 (1977). Powell

demonstrates no basis upon which to conclude that these decisions were

unconstitutional or that the Court’s decision in such cases is flawed.

19

such a procedure was possible, the court clearly indicated it

would not be willing to do so in the instant case by refusing to

grant Powell’s motion for instructed verdict made after the guilt-

innocence phase evidence had been submitted and before the

punishment phase proceedings began. 30 SR 1096. The court

clearly did not believe the evidence insufficient to convict Powell

even before the punishment phase. Thus, Powell’s suggestion

that the court may have been inclined to order an acquittal

except for alleged errors occurring during punishment is belied

by the court’s denial of Powell’s motion for instructed verdict

even before the punishment phase began.

Finally, even if Powell could conceivably demonstrate

that the trial court was capable of overriding the jury’s guilty

verdict after the punishment phase proceedings, and that the

court was inclined to do so except for the alleged errors

occurring at punishment, he has failed to demonstrate any

constitutional error at punishment.

A. The State did not repeat the constitutional

violation condemned in Powell’s first capital

murder trial.

Powell first complains that the state violated his Fifth and

Sixth Amendment rights by introducing Dr. Coon’s testimony at

the punishment phase of trial. He bases his argument primarily

on this Court’s holding in Powell v. Texas, 492 U.S. 680 (1989),

in which the Court concluded that Fifth and Sixth Amendment

violations occurred during the punishment phase of Powell’s first

trial. The problem with Powell’s analysis, of course, is that

simply because the same doctor testified at the punishment phase

of both trials, and his testimony was found unconstitutional in

the first case, does not make his substantially different testimony

at the second trial unconstitutional.

1. No Sixth Amendment Violation Occurred.

It is clear that a capital defendant is entitled to “the

assistance of his attorney[] in making the significant decision of

20

whether to submit to [a psychiatric] examination and to what

end the psychiatrist’s findings [can] be employed.” Estelle v.

Smith, 451 U.S. 454, 471 (1981); see Satterwhite v. Texas, 486

U.S. 249, 254 (1988).

Here, as demonstrated in the statement of facts, supra,

Dr. Coons testified that he received clearance from Powell’s

attorneys to examine Powell. 34 SR 851. He stated that at the

previous trial Powell’s attorneys asserted they were not aware

that his examination would encompass future dangerousness and

that he nevertheless testified to Powell’s future dangerousness at

that trial. 34 SR 851. Dr. Coons stated that he would not

broach the subject of Powell’s future dangerousness in this trial ~~

and intended to testify only as to his sanity at the time of the

murder. 34 SR 852. Powell’s attorney then objected on the

basis, among other things, that Dr. Coons was not allowed to

testify at all at the punishment phase of trial under this Court’s

opinion in Powell v. Texas, 492 U.S. 680 (1989). However,

counsel neither asserted nor objected that Powell’s original

attorneys were unaware that the examination would encompass

the issue of Powell’s sanity at the time of the offense.'! 34 SR

855-58. Later, Dr. Coons again testified that the first time he

examined Powell it was only for approximately fifteen or twenty

minutes and that Powell told him he did not want “to discuss the

offense until he cleared it with his lawyer, ... He had talked

with a lawyer already, but that he--he indicated that he was

willing to talk with me, but wanted to be sure he cleared it with

his attorney before he talked about the offense.” 34 SR 876-77.

After Powell cleared it with his lawyer, Dr. Coons examined him

subsequently at which time Powell discussed “his thinking and

his behavior as regards the offense.” 34 SR 877.

Thereafter, as he stated he would, Dr. Coons did not

testify as to Powell’s future dangerousness but rather merely

rebutted the testimony of Powell’s expert that Powell was insane

when he committed the murder and thought World War III was

'! indeed, as this Court noted in Powell v. Texas, 492 U.S. at 681,

the court order at issue specifically ordered Dr. Coons to examine Powell as

to his competency to stand trial and sanity at the time of the offense.

21

coming. 33 SR 431, 458-59, 495-96, 514-15, 519, 523: 34 SR

862-66.

On the basis of these facts, it is clear that no Sixth

Amendment violation occurred in Powell’s retrial. As this Court

noted in Buchanan v. Kentucky, 483 U.S. 402, 424 (1987), the

proper focus for purposes of the Sixth Amendment is not on

how the psychological evidence is used but, rather, whether the

defendant was able to consult with counsel regarding the scope

and nature of the examination. Jd. There is no dispute here that

Powell had such a consultation and then agreed to Dr. Coon’s

examination.'2 Thus, the protections at which the Sixth

Amendment are aimed, that is, preventing a defendant from

making significant decisions that could deny him a fair trial by

assuring the assistance of counsel at critical Stages in the

proceedings, were not abridged in the instant case. Here, Powell

clearly had “the guiding hand of counsel” in making the

important decision of whether to submit to Dr. Coon’s

'2 Powell's reliance on this Court's decision in the direct appeal of

his first trial is unconvincing. As demonstrated above, the facts

surrounding the use of Dr. Coon’s testimony differs dramatically between

the two trials. When Dr. Coons testified at Powell's first trial, he testified

as to Powell’s future dangerousness, an issue that Powell’s attorneys

asserted they were wholly unaware the examination would encompass.

could be used for purposes of punishment, this argument is unavailing. A

defendant's sanity at the time of a murder is highly relevant at both the

guilt-innocence and punishment phases of his capital murder trial. At guilt-

innocence, such evidence can be used as an affirmative defense by the

defendant; at the punishment phase, such evidence can be used in

Powell's two trials are entirely different for purposes of Sixth Amendment

analysis.

22

examination. Powell, 492 U.S. at 681. Accordingly, Powell’s

claim must fail.

2. No Fifth Amendment Violation Occurred.

Next, Powell relies on Tague v. Louisiana, 444 U.S. 469

(1980), and asserts that his Fifth Amendment rights were

violated by Dr. Coon’s testimony because there is insufficient

evidence that the Miranda warnings given by Dr. Coons to

Powell before his examination were sufficiently understood

and/or waived by Powell.

Initially, it is clear from the record that Powell knowingly

and intelligently waived his Fifth Amendment rights. It is true

that statements by a defendant are inadmissible at trial when

there is “no evidence at all” that the defendant knowingly and

intelligently waived his rights before making the inculpatory

statement. /d. at 471. However, a waiver of Miranda rights

“need not be explicit but may be inferred from the actions and

words of a person interrogated... .” /d.

In the instant case, the record reflects that Dr. Coons

administered Powell his Miranda warnings and that Powell at

first declined to answer any questions regarding the offense until

he had cleared it with his lawyer. 34 SR 851, 876-77. Powell

did indicate, however, that he knew his legal status, that he had

been given his rights by the policeman and the Judge, and that he

was charged with capital murder for killing a policeman. 34 SR

876. After consulting with his lawyer, Powell discussed the

offense and his thinking and behavior at the time of the offense.

34 SR 877.'3 Here, Powell’s actions in refusing to discuss the

offense without clearance from his lawyer demonstrates that he

fully understood Dr. Coon’s Miranda warnings, initially invoked

13Furthermore, it should be noted that Powell is extremely

intelligent, scoring a near perfect score on the SAT college entrance exams,

and cited as having an IQ of 145. 32 SR 338; State’s Exhibit 384 at

“Neuropsychiatric Evaluation” dated 2-21-88 and “Texas Department of

Corrections Social History” dated 4-26-88; see also State’s Exhibit 384 at

Psychiatric Evaluation dated May 4, 1979. It is highly unrealistic to argue

that he would not understand the import of the Miranda warnings.

23

them to some extent, and then voluntarily waived them. There is

ample evidence in the instant case that Powell knowingly and

intelligently waived his Fifth Amendment rights. Accordingly,

this case is distinguishable from the facts in Tague.

Even assuming the record was insufficient to

demonstrate Powell knowingly waived his Fifth Amendment

rights, Powell has waived any right to complain of the alleged

Fifth Amendment violation because he interjected the issue of

temporary insanity into the trial during the punishment phase. In

Estelle v. Smith, this Court held that Fifth Amendment concerns

apply to the punishment phase of a capital murder trial to

prohibit the state’s affirmative use of unwarned statements by

the defendant to a psychiatrist. 451 U.S. at 466. The Court

concluded in that case that when the court-appointed psychiatrist

testified for the prosecution at the penalty phase regarding the

defendant’s future dangerousness, his role changed “and became

essentially like that of an agent of the State recounting unwarned

statements made in a postarrest custodial setting.” Jd. at 467.

Accordingly, the defendant’s statements “could be used as the

State did at the penalty phase only if respondent had been

apprised of his rights and had knowingly decided to waive

them.” /d. at 469.

However, the Court further noted that a defendant could

waive his Fifth Amendment rights:

When a defendant asserts the insanity defense and

introduces supporting psychiatric testimony, his

silence may deprive the State of the only effective

means it has of controverting his proof on an

issue that he interjected into the case.

Accordingly, several Courts of Appeals have held

that, under such circumstances, a defendant can

be required to submit to a sanity examination

conducted by the prosecution’s psychiatrist.

Id. at 465 (citations omitted). The Court then noted that, on the

same theory, the Court of Appeals in that case had left open the

possibility that a defendant who wishes to use psychiatric

evidence in his own behalf on the issue of future dangerousness

can be precluded from using it unless he is also willing to be

24

examined by a state psychiatrist. /d. at 466 n. 10. The Court

later referred back to footnote ten by concluding:

Our holding based on the Fifth and Sixth

Amendments will not prevent the State in capital

cases from proving the defendant’s future

dangerousness as required by statute. A

defendant may request or consent to a

psychiatric examination concerning future

dangerousness in the hope of escaping the death

penalty. In addition, a different situation arises

where a defendant intends to introduce

psychiatric evidence at the penalty phase. See n.

10, supra.

Id. at 472.

Later, in Buchanan v. Kentucky, the Court held that the

state’s use of a psychiatric report to rebut a petitioner’s

psychological evidence introduced at trial to establish the

affirmative defense of “extreme emotional disturbance” did not

violate his Fifth Amendment rights. 483 U.S. at 423. The Court

noted that “with petitioner not taking the stand, the

Commonwealth could not respond to this defense unless it

presented other psychological evidence.” Jd. Finally, in Powell,

492 U.S. at 683-85, the Court noted that

it may be unfair to the state to permit-a defendant

to use psychiatric testimony without allowing the

state a means to rebut that testimony, ... Thus,

if a defendant were to surprise the prosecution on

the eve of trial by raising an insanity defense to be

supported by psychiatric testimony, the court

might be justified in ordering a continuance and

directing that the defendant submit to

examination by a state-appointed psychiatrist.

None of these cases limit the state’s right to rebut a

defendant’s psychological evidence to the guilt-innocence phase

of trial. Indeed, the Court’s statements in Estelle suggest just

the opposite: that is, the state should be allowed to rebut a

defendant’s psychological evidence used at the punishment phase

of trial with psychological evidence of its own just as it would be

25

entitled to do at the guilt-innocence phase of trial. Estelle, 451

U.S. at 472 & 466 n. 10. Moreover, the reasoning behind

finding a waiver of the defendant’s Fifth Amendment rights at

the guilt-innocence phase of trial is the same at the punishment

phase.

‘Once a defendant decides to testify, (t)he

interests of the other party and regard for the

function of courts of justice to ascertain the truth

become relevant, and prevail in the balance of

considerations determining the scope and limits

of the privilege against self-incrimination.’. . .

By introducing psychiatric testimony obtained by

the defense from a psychiatric examination of the

defendant, the defense constructively puts the

defendant himself on the stand and therefore the

defendant is subject to psychiatric examination

by the State in the same manner.

Battie v. Estelle, 655 F.2d 692, 702 n. 22 (Sth Cir. 1981)

(citations omitted). !4

Applying the Court’s analysis in the foregoing cases to

the instant case, it is clear that Powell’s Fifth Amendment

challenge to Dr. Coon’s testimony cannot stand. Here, Powell’s

own expert, Dr. Psikoff, raised the temporary insanity issue at

the punishment phase of trial. 33 SR 431, 458-59, 495-96, 514-

14This Court noted in Powell that its earlier decisions in Estelle

and Buchanan provided support for the Fifth Circuit’s holding in Battie

regarding the Fifth Amendment waiver. Powell, 492 U.S. at 684.

26

15, 519, 523.15 Dr. Coons merely rebutted this testimony with

his own testimony that Powell was sane at the time of the

murder. 34 SR 862-66. Thus, Powell had waived any Fifth

Amendment right not to have Dr. Coons use his statements

against him by injecting the issue of his temporary insanity into

the trial. Powell should not be allowed to hide behind the Fifth

Amendment in order to enable him to introduce self-serving

statements that he was insane at the time of the murder and at

the same time prohibit the state from rebutting such evidence. If

Powell himself had testified during punishment that he was

insane at the time of the murder, he clearly would have been

subject to cross-examination regarding his prior statements

indicating just the opposite. Powell’s use of Dr. Psikoff to

present the exact same type of evidence should not allow Powell

to bypass the state’s right to rebut such evidence. Accordingly,

Powell has waived his right to complain of any Fifth Amendment

violation.

15 The fact that defense counsel requested to have the temporary

insanity instructions removed from the punishment phase charge is not

determinative of this issue. Dr. Psikoff repeatedly testified to Powell’s

temporary insanity due to voluntary intoxication. 33 SR 431, 458-59, 495-

96, 514-15, 519, 523. If this testimony had remained unrebutted, defense

counsel undoubtedly would have left the temporary insanity instructions in

place. However, during defense rebuttal, Dr. Psikoff admitted that Powell

had told him he shot the officer, had drugs in the car, and did not want to be

arrested, 34 SR 897; that Powell certainly knew the man was a police

officer, 34 SR 898; that Powell “was certainly sane at the time[,]” 34 SR

914-15; and that Powell killed the policeman because he did not want to go

to jail. 34 SR 915. In light of this testimony from Powell’s own expert, a

temporary insanity instruction was useless to the defense and could only

serve to support the state’s argument that Powell had interjected the

temporary insanity issue into the trial. The defense thereafter moved to

abandon the temporary insanity instruction from the court’s punishment

phase charge. 35 SR 973.

27

B. The presence of a large number of uniformed

Officers in the courtroom during the final

arguments at the punishment phase of Powell’s

trial does not entitle him to a new trial.

Powell next complains that during the final arguments at

the punishment phase of his trial, the courtroom was filled with

uniformed police officers wearing purple strips of tape over their

badges as a sign of mourning for Officer Ablanedo.

The problem, again, with Powell’s argument is that, even

assuming all the facts as he states them,'* he has already received

all the relief to which he is entitled by the Court of Criminal

Appeals’ remand for resentencing. There is no conceivable way

that heavy police presence during the punishment phase

Proceedings could have affected the jury’s previous guilty

verdict in the guilt-innocence phase proceedings.

Secondly, Powell’s counsel never objected at trial to the

alleged “intimidating” atmosphere created by the large number

of police officers in the courtroom. Despite Powell’s assertions

that the “demonstration” was “behind counsel’s back,” petition

at 11, the record clearly demonstrates that counsel was aware of

the large number of police officers the entire time and never

16 However, the state does not agree with Powell’s recitation of the

facts. There was absolutely no competent evidence introduced at the hearing

on the motion for new trial that the presence of the police officers was

planned or “orchestrated”. Defense witness David Van Os, a friend of

Powell’s, speculated that “it seems as if” the officers were dispatched to the

courtroom because they all showed up at the same time. 36 SR 6-9.

Defense counsel himself testified that he heard from a lady that works at the

television station that there had been a dispatch for the officers to there. 36

SR 20. A hearsay objection to this testimony was immediately sustained.

36 SR 20. No attempt was made to provide the court with any direct

evidence that police were dispatched to the courtroom, é.g., testimony from

the lady, police dispatch records, etc. On the other hand, the prosecutor

testified under oath that he was unaware of any dispatch being made for the

police officers to attend Closing arguments. 36 SR 12. He further testified

that he did not send for the police officers, nor personally requested any of

them to be there to influence the jury. 36 SR 13.

28

objected. Indeed, counsel acknowledged as much during his

final argument:

I don’t know whether it’s coincidence

that there are a lot of people in the courtroom

today, and I’m not going to argue that there are

a lot of police officers here in the courtroom,

and that’s supposed to influence you in some

way. My mother is here. I hope she doesn’t

intimidate you.

35 SR 1015.

Furthermore, it was brought out at the motion for new

trial that the officers arrived in the courtroom before the jury

was brought in for final arguments. 36 SR 16, 21, 24, 45.

Defense counsel was fully aware of their presence yet never

made a record objection either before or after the jury was

brought in. 36 SR 13, 16, 24. Further, it is unconvincing to

argue that defense counsel as experienced as Mr. DeGuerin

would forget or overlook the need to object to a “lynch-mob

atmosphere.” The fact that he chose not to object supports the

notion that the atmosphere was not, in fact, so intimidating as to

affect the jury’s deliberations.

Furthermore, Powell cites no cases in which this Court

has held that the voluntary presence of a large number of police

officers, at the punishment phase of a capital murder trial in

which the victim was a fellow police officer, violates a

defendant’s right to a fair trial. Turner v. Louisiana, 379 U.S.

466 (1965), Irvin v. Dowd, 366 U.S. 717 (1961), Sheppard v.

Maxwell, 384 U.S. 333 (1966) and Moore v. Dempsey, 261 U.S.

86 (1923) are all distinguishable on their facts.

Finally, any suggestion by Powell that this alleged error

could have affected the trial court’s decision to render judgment

on the jury’s guilty verdict is absurd. As demonstrated above,

such procedures are not even possible under Texas law.

Furthermore, the trial court was given an opportunity to direct a

verdict for Powell at the conclusion of the guilt-innocence phase

evidence and prior to the punishment phase proceedings, and

promptly declined to do so. 30 SR 1096. Finally, even if the

alleged Fifth and Sixth Amendment errors previously discussed

29

could have impacted the trial court’s view of the evidence

relating to Powell’s guilt or innocence, which the state strongly

denies, it is inconceivable to argue that the courtroom presence

of a large number of police officers at the punishment phase of a

trial could persuade a court that the defendant it thought was

innocent was actually guilty. This claim is frivolous.

CONCLUSION

For the foregoing reasons, the state respectfully requests

that the petition for writ of certiorari be denied.

Respectfully submitted,

DAN MORALES

Attorney General of Texas

JORGE VEGA

First Assistant Attorney General

DREW T. DURHAM

Deputy Attorney General for

Criminal Justice

MARGARET PORTMAN GRIFFEY

Assistant Attorney General

Chief, Capital Litigation Division

*DANA E. PARKER

Assistant Attorney General

*Counsel of Record

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LAURA BAYOUTH POPPS

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Fax No. (512) 320-8132

ATTORNEYS FOR RESPONDENT