Griffith v. State

983 S.W.2d 282, 1998 Tex. Crim. App. LEXIS 170, 1998 WL 870915

• Court: Court of Criminal Appeals of Texas
• Decided: December 16, 1998
• Docket: 72321
• Status: Published

Opinions

OPINION

McCORMICK, P.J.,

delivered the opinion of the Court,

in which MANSFIELD, KELLER, HOLLAND and WOMACK, JJ., joined.

Appellant was convicted in December 1995 of a capital murder committed in October 1994. V.T.C.A, Penal Code, Section 19.03(a)(2). Pursuant to the jury’s answers to the statutory punishment issues set forth in Texas Code of Criminal Procedure Article 37.071, Sections 2(b) and 2(e), the trial judge sentenced appellant to death.¹ Article 37.071, Section 2(g). Direct appeal is automatic. Article 37.071, Section 2(h). We will affirm.

Appellant raises twelve points of error. He raises challenges to the sufficiency of the mitigation evidence. However, for the reasons put forth under those points, we need not set out a comprehensive recitation of the facts. Hence, only those facts necessary to address appellant’s points will be included. Appellant’s points will be addressed in the order in which he raises them on appeal.

Appellant advances in his first point of error that the trial court erred in failing to suppress the evidence seized from the hotel room following his arrest.² Specifically, appellant asserts not that his arrest was illegal, but that the State failed to carry its burden at the suppression hearing to show that it was lawful. Because of this, appellant contends that the evidence should be suppressed notwithstanding the fact that he signed a consent to search form.

The record reveals that several credit cards were stolen from the victim. Upon investigation, the police began to suspect appellant. Furthermore, outstanding warrants for other crimes not related to the capital murder charge already existed for appellant’s arrest. In pursuing the investigation of the capital murder, officers were led to a Holiday Inn where a room had been secured by one of the stolen cards. The police knocked on the door of the room and appellant answered. According to officers’ testimony at the suppression hearing, the police arrested appellant pursuant to the outstánd-ing warrants and quickly conducted a protective search of the room. Within five minutes of entry, appellant was presented with a consent to search form which .he signed.³

At the motion to suppress hearing, appellant admitted on cross-examination that he knew what the consent to search form was,⁴ he signed it “knowingly and voluntarily,” and he knew that he could have refused to sign it. Appellant further admitted that he knew a warrant was out for his arrest on an assault charge and that police officers “had a lawful right to arrest” him on that charge. Given this testimony, we hold that the trial judge acted within her discretion in overruling appellant’s motion to suppress. See Baker v. State, 956 S.W.2d 19 (Tex.Cr.App.1997). Point of error one is overruled.

In his second point of error, appellant asserts that the trial court erred in “failing to provide funds with which to employ an expert witness.” Specifically, appellant claims he was entitled to funds to hire a particular psychologist, Dr. Theodore Blau, to rebut the testimony of State’s witness, psychologist Dr. Allan Brantley, of the Federal Bureau of Investigation’s (FBI’s) Behavioral Sciences Unit. To properly address this point of error, we must briefly set out the facts underlying the claim.

The record reflects that appellant filed a motion on November 1, 1995, requesting the appointment of psychiatrist Mitchell Young and psychologist Ed Friedman. The trial court granted this request, but limited the funds available to $6,000.00. According to Dr. Young’s letter to defense counsel, psychologist David Hopkinson would also be helping with the case.⁵ On November 22, 1995, appellant filed two additional motions requesting the appointment of “expert assistance." Each of these motions specifically asked for the appointment of psychologist Dr. Theodore Blau. Appellant urged his motion be granted because Blau was needed to respond to State’s expert, FBI Special Agent Dr. Allan Brantley, who was going to use a “threat assessment technique” (apparently similar to a future dangerousness analysis) and “compare the defendant to profiles of certain serial killers and discuss [appellant’s] similarity to such individuals.” Blau was apparently needed to show why such testimony was not “scientifically validated” and should, therefore, be held inadmissible. No affidavits or other evidence of need were included with the motion.

In considering the motion prior to trial, the trial judge asked appellant whether, if she granted his motion and appointed Blau, Blau was going to listen to Brantley’s testimony. Appellant responded that he did not think so. The judge also asked appellant why one of the psychologists or the psychiatrist that had already been appointed could not rebut Brantley’s testimony. Appellant responded that Brantley’s testimony was not psychological in nature, but instead was based upon a forensic analysis. Appellant asserted that Blau was necessary because he was one of the people who developed the techniques about which Brantley would be testifying and he was the only non-FBI person counsel was aware of who utilized them. The judge overruled his request.

Prior to Brantley’s testimony • at punishment, the trial court held a hearing pursuant to Texas Rules of Criminal Evidence 702-705 to determine Brantley’s qualifications and the bases for his testimony. Brantley told the judge that he was going to render an opinion on appellant’s probability for being a future danger and that he was going to base that opinion upon crime scene photographs, investigative reports, interviews, autopsy photographs, school records, work records, and “everything that [he] could get [his] hands on.” Brantley stated that he was not testifying from a psychological perspective per se, but rather from his experience in the criminal justice field. Brantley also told the judge that he did not intend to use the “profiling” technique of which appellant complained. Appellant challenged Brantley’s testimony asserting that it was based on novel methodology and was cumulative because the State had established the same information through the cross-examination of appellant’s experts. The judge held the testimony admissible. After Brantley’s testimony, appellant re-urged his motion to be allowed to hire Dr. Blau. However, the judge also overruled this request.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court explained that due process requires access to the raw materials integral to the building of an effective defense. Id. at 77, 105 S.Ct. 1087. In other words, the State must provide a defendant with the basic tools to present his defense within our adversarial system. Id. While the Ake case dealt with the appointment of a psychiatrist, it is now without question that Ake requires the appointment of an expert regardless of his field of expertise. Rey v. State, 897 S.W.2d 333, 338 (Tex.Cr.App.1995). As we set out in Rey:

“There is no principled way to distinguish between psychiatric and nonpsychiatric experts. The question in each case must be not what field of expert knowledge is involved, but rather how important the scientific issue is in the case, and how much help a defense expert could have given.” 897 S.W.2d at 338.

Hence, the nature of an expert’s field and the importance and complexity of the issue will bear directly upon whether the appointment of an expert will be helpful. Id. The type of expert is also relevant to the determination of whether the trial was fundamentally unfair without the expert’s assistance. Id.

However, this does not mean that the State must “purchase for an indigent defendant all the assistance that his wealthier counterparts might buy.” Ake, supra. Nor does it mean that a defendant has a constitutional right to choose an expert of his personal liking. Ake, supra; Cantu v. State, 939 S.W.2d 627, 638-639 (Tex.Cr.App.1997). Rather, the purpose of the appointment is to level the playing field; to give a defendant access to a competent expert who can assist in the evaluation, preparation, and presentation of the defense. See Rey, 897 S.W.2d at 337.

In implementing this right to receive an expert, the burden is on the defendant to make a sufficient threshold showing of the need for the expert’s assistance. Rey, 897 S.W.2d at 339. In the instant case, it is not entirely clear exactly what type of expert appellant was seeking. The State’s expert, Brantley, told the court that he was going to testify on the issue of appellant’s future dangerousness, obviously a significant factor at trial. Furthermore, he specifically stated that he was not going to utilize the complained-of “profiling” technique, but instead was going to evaluate the evidence and make an assessment from that material. Whether from a psychological perspective or a criminal justice one, Brantley’s actual testimony was akin to the testimony of a forensic psychologist.

Appellant asserted he needed Blau (a psychologist) to discount Brantley’s testimony concerning the “profiling” technique because he had helped to develop the technique.⁶ However, Brantley specifically indicated he was not going to utilize the technique. Even if Brantley had used the technique, it is unclear whether or not any of appellant’s other experts were versed in the use of “profiling” and, therefore, could have rendered competent assistance. The fact that appellant requested a third psychologist and not some criminal justice or other forensic expert weighs against his being able to show need for this particular expert. Given the facts and the testimony presented, we cannot say that the trial judge was outside of the zone of reasonable disagreement in refusing to appoint Blau. See Rey, supra. Appellant’s second point of error is overruled.

In point of error three, appellant posits that the trial court erred in allowing Brantley to testify “without first holding a Rule 702 hearing to determine whether Brantley’s theories were sufficiently reliable to be admissible.” In his fourth point, he contends that the trial court erred in admitting Brantley’s testimony. The testimony at trial reveals the following exchange:

“THE COURT: Can I look at that; and then the other thing you want a hearing on—

“[DEFENSE COUNSEL:] Allen [sic] Brantley’s qualifications to testify under rule 701, 702 and 705.

“THE COURT: Okay. We’ll do that after we break.

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“So we’ll play the tape, break, do the hearing and you can put on Brantley.”

The record further shows, prior to Brantley’s testimony before the jury, the judge did hear from both attorneys and Brantley concerning Brantley’s qualifications to testify and the basis of his testimony. There is no indication in the record that appellant was prohibited from calling witnesses for this “hearing,” nor did appellant make any complaint that this was not a sufficient hearing for purposes of qualifying the witness and establishing the basis of his testimony. Appellant’s third point of error is not supported by the record and is, therefore, overruled.

With regard to point of error four, appellant claims that: 1) Brantley’s testimony was based upon novel scientific theory and was, therefore, unreliable, and 2) the testimony was further not admissible because it did not assist the jury by providing any specialized knowledge. Appellant’s allegations correspond with the trial court’s task in assessing the admissibility of evidence under Rule 702. Pursuant to Rule 702, the trial court must determine whether the scientific evidence offered is sufficiently reliable and relevant to help the jury in reaching accurate results. Hartman v. State, 946 S.W.2d 60, 62 (Tex.Cr.App.1997).⁷ The admission of such scientific evidence is within the sound discretion of the trial court and its decision regarding such will not be set aside absent an abuse of that discretion. Clark v. State, 881 S.W.2d 682, 698 (Tex.Cr.App.1994), cert. denied, 513 U.S. 1156, 115 S.Ct. 1114, 130 L.Ed.2d 1078 (1995).

To be considered reliable, evidence must have its basis in sound scientific methodology. Id. Evidence that is not reliable is not helpful to the jury because it frustrates rather then promotes intelligent evaluation of the facts. Jordan v. State, 928 S.W.2d 550, 554 (Tex.Cr.App.1996). With respect to the relevance consideration, expert testimony must “assist the trier of fact to understand the evidence or to determine a fact in issue.” Jordan, 928 S.W.2d at 555. Expert testimony that does not relate to a fact in issue is not helpful. Id.

The thrust of appellant’s argument seems to concentrate on Brantley’s use of the “profiling” technique. Appellant claims that this technique is not grounded in sound scientific theory and, therefore, should not have been admitted. However, during the hearing on Brantley’s qualifications, the witness expressly stated that he would “not offer testimony about a profile.” Because the witness did not offer the complained-of testimony, the majority of appellant’s argument is moot. Alternatively, appellant argues that the witness’s testimony was not relevant because it offered no expertise outside of the jury’s own capabilities and it was cumulative “because [the prosecution has] established [the same information] by cross examination of the three psychologists [the defense] put on. All three said yes in free society he’s dangerous.”

In Clark, 881 S.W.2d at 698, we reaffirmed that psychological and psychiatric testimony is admissible during the punishment phase of a capital trial. However, the proponent of the evidence still has the burden to show that the witness possesses the requisite expertise required by Rule 702 and that the witness’s testimony will assist the fact-finder. Appellant does not attack Brantley’s qualifications as an “expert,” therefore, the only remaining question is whether the trial judge could have reasonably determined that his testimony would be of benefit to the fact-finder.

An appellant’s potential for being a future danger is a question of fact which the jury must answer. See Article 37.071, Section 2(b). Furthermore, this Court has previously recognized that testimony from mental health experts is relevant to that issue. McBride v. State, 862 S.W.2d 600, 608 (Tex.Cr.App.1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994).

In the instant case, Brantley testified that prior to becoming a special agent with the FBI, he had worked as a psychologist in a maximum security prison for about six years. Among other duties, Brantley stated that he was responsible for assessing and evaluating the adult male felon population for potential dangerousness or future threat to the community should they be released on parole. Brantley told the jury that he reviewed “hundreds” of such cases during his time in that position.

After leaving that post, Brantley became the senior psychologist and Mental Health Director for a three prison unit complex where he continued to perform future threat evaluations in addition to supervising other psychologists. Brantley further stated that he had taught “criminal psychology” at the FBI Academy for a number of years. Finally, Brantley told the jury that, before developing an opinion of appellant’s future dangerousness in the instant case, he reviewed the investigative reports, crime scene photos, autopsy photos, witness statements, and appellant’s school and personnel records, among other information.⁸

Given Brantley’s specialized education and experience, and the effort he took to “fit” his evaluation to this particular ease, we cannot say that the trial judge abused her discretion in determining that Brantléy’s testimony would be helpful to the jury.⁹ See Clark and McBride, both supra. Point of error four is overruled.

In his fifth point of error, appellant complains that the trial court erred in allowing the victim’s brother to testify at the punishment stage of trial about the impact his sister’s death in the instant offense had on their family. Specifically, the witness testified to the relationship the victim had with him and his family. He told the jury that his sister had been the planner and coordinator for all of the holidays the family celebrated. He also related how their father had been diagnosed with cancer before the victim’s death, how the victim had helped to take care of him, and how their father quit fighting the disease after the victim was killed. Appellant did not cross-examine the witness.

The trial court did not abuse its discretion to admit this evidence under this Court’s majority decision in Mosley v. State, 983 S.W.2d 249 (Tex.Cr.App.1998) (op. on reh’g). Point of error five is overruled.

Appellant complains in points of error six through nine about issues relating to the requirement that, if sentenced to life in prison, he must spend at least forty years in jail before becoming eligible for parole. See Article 42.18, Section 8(b)(2). Specifically, appellant asserts in his sixth point of error that the trial court erred in not submitting an instruction to the jury informing them that he would have to spend at least forty years in prison if sentenced to life. In his seventh point, appellant avers that he should have been allowed to voir dire the jury on this issue. And finally, in his eighth and ninth points of error, appellant complains that his expert witnesses should have been allowed to testify that appellant’s threat of being a future danger would be substantially reduced given the required minimum incarceration time.

Appellant contends these issues are controlled by the United States Supreme Court case of Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). He concedes that this Court has already decided the issues against him. However, he “respectfully disagrees with this Court’s reasoning” and urges us to consider his argument.

In Smith v. State, 898 S.W.2d 838 (Tex.Cr.App.1995)(plurality opinion), cert. denied; 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995), this Court engaged in a comprehensive discussion of Simmons as it relates to the law in Texas. We reiterated that parole is traditionally not a matter for jury consideration in a Texas capital murder trial. And, thus, it is not error for a trial court to refuse to admit testimony concerning parole. See Jones v. State, 843 S.W.2d 487, 495 (Tex.Cr.App.1992), cert. denied, 507 U.S. 1035, 113 S.Ct. 1858, 123 L.Ed.2d 479 (1993). Further, we “absolutely reject[ed]” the premise that Simmons has been extended to parole eligible defendants. Smith, 898 S.W.2d at 848. As such, we hold that the requested instruction, voir dire, and testimony which is the subject of these points were appropriately refused by the trial court. Smith, supra; Shannon v. State, 942 S.W.2d 591, 594 (Tex.Cr.App.1996); Broxton v. State, 909 S.W.2d 912, 918-919 (Tex.Cr.App.1995). Points six through nine are overruled.

Appellant asserts in his tenth point of error that the evidence is insufficient to sustain the jury’s negative finding to the mitigation issue. Similarly, in his eleventh point of error, he challenges the factual sufficiency of the mitigation evidence. Appellant notes his awareness that this Court has consistently refused to address such points. However, he advances that such review is mandated under due process.

We have previously held that the sufficiency of mitigation evidence is not reviewable by this Court. Lawton v. State, 913 S.W.2d 542, 557 (Tex.Cr.App.1995), cert. denied, 519 U.S. 826, 117 S.Ct. 88, 136 L.Ed.2d 44 (1996). We have also previously held that such a review is not constitutionally required. McFarland v. State, 928 S.W.2d 482, 499 (Tex.Cr.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). We decline to readdress the issue here. Points of error ten and eleven are overruled.

Appellant attests in his final point of error that the trial court erred in allowing the State to introduce evidence that two Harris County Sheriffs Office Supervisors who wrote positively of appellant were fired because of criminal convictions. During the punishment stage of trial, the State called Ruben Diaz to testify. Diaz, a lieutenant in the Harris County Sheriffs Department, told the jury that he served as appellant’s immediate supervisor at one point in time. As a result of this relationship, Diaz testified that he formed the opinion that appellant had a bad reputation.

While cross-examining Diaz, defense counsel introduced appellant’s Harris County personnel file. Discussing the contents of this file with Diaz, defense counsel revealed to the jury several documents generated by appellant’s past supervisors and colleagues chronicling his career as a peace officer. Among these were documents from deputies G. Poindexter and B. Mathis. Poindexter had conducted a check of appellant’s references when appellant submitted an employment application to the Sheriffs Department and placed documents in appellant’s file indicating that the people he had contacted spoke positively of appellant. Mathis had been one of appellant’s superiors in the early 1980’s and had given him several positive evaluations.¹⁰

On the State’s redirect of Diaz, the prosecutor elicited testimony that Poindexter and Mathis had both been fired from the sheriffs department after being convicted of criminal offenses. It is this testimony of which appellant now complains.

The State responds that the complained-of statements were admissible under Tex.R.Crim.Evid. 806. Rule 806 states in pertinent part:

“When a hearsay statement, ..., has been admitted in evidence, the credibility of the declarant may be attacked, ..., by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.”

While the State did not complain of the admission of appellant’s personnel file and its contents, the trial judge could have reasonably concluded that the documents contained within the file were hearsay. In other words, the judge could have determined that the documents were statements, other than ones made by the declarant while testifying at trial, which had been offered in evidence to prove the truth of the matters asserted within. See Tex.R.Crim.Evid. 801(d).

Because we conclude the statements qualified as hearsay, the credibility of each declar-ant could then be attacked pursuant to the dictates of Rule 806. If the declarants had testified as witnesses, the State would have been allowed to impeach their credibility with a felony conviction or the conviction of a crime involving moral turpitude.¹¹ See Tex. R.Crim.Evid. 609(a). Hence, this same impeachment evidence could be used pursuant to Rule 806. Furthermore, the trial judge apparently engaged in the proper balancing test required under Rule 609(a) as evidenced by the fact that she made the State refrain from mentioning the specific crime of which each person was convicted. Given this, we cannot say that the trial judge abused her discretion in allowing the impeachment testimony. Point of error twelve is .overruled.

Finding no reversible error, we affirm the conviction and sentence of the trial court.

MEYERS, J., filed a concurring opinion.

MANSFIELD, J., filed a concurring opinion.

KELLER, J., filed a concurring opinion joined by HOLLAND and WOMACK, JJ.

BAIRD, J., filed a concurring and dissenting opinion joined by OVERSTREET and PRICE, JJ.

1 . All references to articles are to those in the Texas Code of Criminal Procedure in effect at the time of the offense unless otherwise indicated.

2 . This evidence included the murder weapon, credit cards taken from the victim, and credit card receipts.

3 . According to officers’ testimony, appellant was read his Miranda warnings prior to being given the consent to search form. However, appellant disputes this.

4 . Appellant had been a peace officer for a number of years.

5 . Appellant also filed a motion on November 1, 1995, requesting the appointment of a “psychosocial investigator.” This request was also granted.

6 . Appellant also said he needed Blau to respond to Brantley’s testimony. However, as stated previously, appellant told the judge that he did not think Blau was going to listen to that testimony.

7 . Furthermore, it is not necessary that this evidence be novel. Hartman, supra.

8 . The record reveals that this was much the same material that appellant's experts reviewed before making their assessments.

9 . Additionally, we have consistently defined "society” as encompassing both the prison population and the free population. See Morris v. State, 940 S.W.2d 610, 613 (Tex.Cr.App.1996). Although appellant’s experts testified that appellant would be a danger to free society, the State was entitled to put on evidence that he would also be a danger in prison.

10 . The file apparently revealed that at least nine of appellant's superiors had given him positive evaluations and commendations in the past.

11 . Mathis’ prior conviction was for the felony of rape. Although the record does not appear to set out what conviction was used to impeach Poin-dexter's credibility, appellant has not met his burden on appeal to show that the judge abused her discretionary authority in allowing the impeachment of Poindexter. In effect, appellant's entire argument is that "the trial court should not have admitted evidence of a conviction for someone who did not testify.” Rule 806 expressly contradicts this assertion and appellant has failed to offer other relevant authority concerning his point of error. See Tex.R.App.Proc. 38.1(f)-(h) (formerly Tex.R.App.Proc. 74(f)).