Bradford v. State

873 S.W.2d 15, 1993 Tex. Crim. App. LEXIS 113, 1993 WL 191144
CourtCourt of Criminal Appeals of Texas
DecidedJune 9, 1993
Docket71048
StatusPublished
Cited by17 cases

This text of 873 S.W.2d 15 (Bradford v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradford v. State, 873 S.W.2d 15, 1993 Tex. Crim. App. LEXIS 113, 1993 WL 191144 (Tex. 1993).

Opinions

OPINION

OVERSTREET, Judge.

In January of 1990, appellant was convicted, in the 265th Judicial District Court of Dallas County, of capital murder pursuant to [16]*16V.T.C.A. Penal Code § 19.03(a)(2), specifically murder during the course of committing and attempting to commit robbery. The indictment alleged that the offense occurred on or about the 29th day of December 1988. After the jury returned affirmative answers to the special issues submitted pursuant to Article 37.071(b)(1), (2), V.A.C.C.P., the trial court assessed punishment at death. On direct appeal, appellant raises one hundred four points of error.

I.

SUMMARY OF PERTINENT FACTS

The record reflects that the instant offense involved the late-night armed robbery of a grocery/convenience store. During the robbery, a store security guard was shot to death. Appellant, in a written confession, admitted shooting the guard. A store videotape recorded the shooting and confirmed appellant’s confession.

II.

EXPERT TESTIMONY AT PUNISHMENT

Points eleven, twelve, thirteen and fourteen all involve the trial court’s refusal to allow certain expert psychiatric testimony proffered by a defense witness at punishment unless appellant agreed to be examined by an expert psychiatric witness of the State’s choosing. It is undisputed that none of the psychiatric/psychologieal examinations in the instant cause were for the purpose of determining competency or sanity issues. During appellant’s presentation of evidence at punishment, the State expressed concerns about not having the opportunity to have an expert psychiatrist of its choosing examine appellant. The State asked that appellant’s psychiatric expert not be allowed to testify because the State had been denied access to examine appellant. The State requested that Dr. Rennebohm and/or Dr. Grigson be allowed to examine appellant.

Appellant’s witness, Dr. Wettstein, was questioned outside the presence of the jury.1 After questioning about his anticipated testimony, the State asked that Dr. Grigson, Dr. Rennebohm, a Dr. Turner, or a Dr. Coones be allowed to examine appellant; and that if appellant refused to submit to such, that Dr. Wettstein’s testimony be disallowed. Appellant’s attorneys strenuously objected to being forced to make such a choice.

Appellant’s attorneys, in expressing an understanding that the trial court was going to order appellant to undergo psychiatric examination by some other psychiatrist, indicated that appellant was not knowingly and voluntarily waiving his Fifth Amendment right regarding incrimination.

The trial court ordered appellant to submit to an examination by the State’s psychiatrist. Appellant’s attorneys advised appellant to refuse to participate and exercise his Fifth Amendment right to remain silent. Appellant himself indicated that he was going to follow his attorneys’ advice and not talk to the doctor. Appellant said, “I do not want to talk to him[,]” and responded negatively when again asked. The State then asked “that the testimony of Dr. Wettstein be disallowed, he not be allowed to testify].]”

The trial court ruled that it would restrict the testimony of Dr. Wettstein and only allow testimony by Dr. Wettstein that did not include, as a basis for his opinion, the examination of appellant. The trial court stated, “[ajnything that he used in the examination of [appellant] in making his conclusions or opinions w[ould] not be allowed.... The results of an examination by a [d]efense psychiatrist and the statements given by the [defendant to that psychiatrist will not be admitted.” The trial court indicated that this would preclude Dr. Wettstein from giving an opinion about appellant’s diagnosis and his intellect or whether he was a sociopath as such opinion would clearly come from the examination. Later, as clarification, the trial court reiterated, “I’m just telling you, anything that Dr. Wettstein would testify to that [17]*17would be based upon his personal examination of the [defendant would not be allowed.” During discussions about the law involved in this matter of a defendant refusing to be examined, the trial court commented that “[n]one of the eases list what the sanction should be.”

During the course of this discussion, appellant’s attorneys again objected and insisted that imposing such a sanction denied appellant effective assistance of counsel and due process. There was then some discussion about the State not having previously filed a written motion for psychiatric examination; thus, further objection was made that the State’s request was untimely and not in compliance with Articles 46.02 § 3(d) and 46.03 § 3(d), V.A.C.C.P. When the trial court mentioned getting Dr. Wettstein on to make a bill of exception, one of appellant’s attorneys noted that he had seen Dr. Grigson outside, and that since the trial court’s “ruling obviously cuts very deep[ly] into the defense ... by disallowing pertinent evidence to be submitted to the jury,” appellant would submit to the examination by Dr. Grigson with the proviso that Dr. Wettstein be allowed to be present and observe Grigson’s examination. Though the State expressed displeasure at the prospect of Wettstein being allowed to be present during Grigson’s examination, the prosecutor relented and agreed. Appellant himself, after consultation with his attorneys, also agreed to submit to an examination by Dr. Grigson with Dr. Wettstein present.

Appellant’s attorneys stated that it was only because of the trial court’s prior ruling that they were agreeing to submit to the Grigson examination. They explicitly did not waive any previous objections.

Thus, appellant agreed to submit to an examination by Dr. Grigson with Dr. Wett-stein present and observing. In light of such, the trial court allowed appellant to present testimony by Dr. Wettstein which included opinions based upon his independent examination of appellant. After Wett-stein’s testimony, appellant, in anticipation of Dr. Grigson’s examination, again objected to such “being done at the instance of the [trial court] — [that] the testimony of Dr. Wettstein was conditional, that the only way Dr. Wett-stein could testify as to his diagnosis of [appellant] would be to allow the State the opportunity to examine [him].” Appellant made it clear that he submitted to the examination because he felt bound by the trial court’s ruling to which he objected. Appellant made it clear that he did not waive any Fifth Amendment rights.

In rebuttal, the State presented testimony from Dr. Grigson, who had conducted an examination of appellant. After Grigson’s direct examination testimony and outside the presence of the jury and prior to cross examination, appellant stated for the record that prior to the testimony of Dr. Grigson, he had addressed the trial court and renewed his objection that had been made numerous times, which the trial court was well aware of, and that the trial court had allowed the objection to be made at that time to be considered timely as if made prior to the time Grigson testified. The trial court responded, “Any objection made at this time is timely and your rendering of what happened is correct.”

III.

APPELLANT’S CLAIM

Point number eleven claims error and abuse of discretion in requiring that appellant be examined by Dr. Grigson to enable Dr. Wettstein’s testimony to be admitted into evidence, because such was a violation of Estelle v. Smith and the Fifth and Sixth Amendments of the United States Constitution.

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Cite This Page — Counsel Stack

Bluebook (online)
873 S.W.2d 15, 1993 Tex. Crim. App. LEXIS 113, 1993 WL 191144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradford-v-state-texcrimapp-1993.