Lopez v. State

628 S.W.2d 77
Court of Criminal Appeals of Texas·Decided February 24, 1982·No. 61776·Published·Cited by 39 cases

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for murder. Punishment was assessed at confinement for life. The cause was tried in Yoakum County on a change of venue.

Appellant was a student at Whitharral High School in Hockley County and was [79]*79convicted for murdering the principal of the school. The following grounds of error are urged on appeal: (1) and (2) whether the trial court erred in excluding expert testimony on the administration and results of a Rorschach test; (3) whether the use of a special prosecutor resulted in a denial of due process; (4) whether the trial court erred in overruling an objection to the State’s jury argument; and (5) whether the trial court erroneously overruled a motion for continuance based on adverse publicity.

Appellant’s first two contentions complain that the trial court excluded expert testimony of a psychologist, Dr. Kreimeyer, stating the “diagnostic impression and conclusions and recommendations” of a second doctor, Trent Piper, who had administered the Rorschach test.

Kreimeyer testified that based on his personal examination of appellant and on results of the Rorschach test he concluded that on the date of the offense appellant was an acute paranoid schizophrenic. He further stated that he was legally insane at the time of the incident because of an inability to control his behavior.

The trial court excluded testimony by Kreimeyer as to the opinion of Piper, and also sustained the State’s hearsay objection to his testimony on Piper’s competency to administer the Rorschach test. Kreimeyer stated that the results of the test are corroborative in that there is no specific test for schizophrenia. The Rorschach test was administered by Piper at Kreimeyer’s request, but there is no testimony that it was conducted under his control. In fact, Kreimeyer stated that he did not “supervise” the test in that he was not physically present at the time.

Appellant perfected his objection to the exclusion of Piper’s opinion and qualifications by bill of exception. He elicited testimony from Kreimeyer that Piper was competent to run the test and that it was conducted at his request and instruction. The result of the test was corroborative of Kreimeyer’s conclusion and Piper’s conclusion was identical: “accute paranoid schizophrenia.” The report was approved by the “Director of the Out Patient Clinic, Ron Cohorn, Ph.D..”

We find that the complaint to the exclusion of testimony regarding Piper’s qualifications and conclusions based on the Rorschach test was properly overruled. Further, we fail to see any harm in that Kreimeyer was permitted to state his opinion which was corroborated by the results of the Rorschach test.

The burden of establishing the admissibility of the expert’s opinion rests on the party offering the evidence. Holloway v. State, 613 S.W.2d 497 (Tex.Cr.App.). In order to sustain this burden, where the testimony sought to be admitted is the result of a test administered by another person, the offering party must demonstrate that the test was conducted under the witness’ “supervision or control.” Caballero v. State, 587 S.W.2d 741 (Tex.Cr.App.); see also Grant v. State, 472 S.W.2d 531 (Tex.Cr.App.); Dagley v. State, 394 S.W.2d 179 (Tex.Cr.App.). In Caballero, a psychiatrist was permitted to testify regarding testing conducted by an assistant. The admissibility of that testimony was supported by factors not present in the record before us. There, the witness testified that she verified her associate’s work and examined that information again and more thoroughly when she examined the defendant. The witness did not testify as to the results of the test, nor did she testify from her associate’s notes. But this Court further noted that even if she had, the results would indeed be admissible where the analysis of the test was under the witness’ supervision or control.

In the instant case the only testimony concerning the degree of control or supervision that Kreimeyer had over the administration of the Rorschach test by Piper was that it was conducted at his request. Further, there is no testimony that he had verified the work. The opinion of Dr. Piper [80]*80and the results of the test he administered were properly excluded.1

Appellant next contends that he was denied due process because a privately retained attorney was employed to prosecute the case. It is argued that such an attorney is objectionable because he is “not inhibited by an oath that required justice be done,” citing Art. 2.01, V.A.C.C.P.

This ground of error is clearly without merit in that an identical argument has been repeatedly rejected by this Court. See Reed v. State, 503 S.W.2d 775 (Tex.Cr.App.); Ex parte Powers, 487 S.W.2d 101; Lopez v. State, 437 S.W.2d 268 (Tex.Cr.App.). Counsel other than the regular prosecuting attorney may appear to prosecute or assist in the prosecution of a cause on behalf of the State. Bingham v. State, 163 Tex.Cr.R. 352, 290 S.W.2d 915; Phillips v. State, 159 Tex.Cr.R. 286, 263 S.W.2d 159. In Ex parte Powers, supra, a defendant argued that he was denied a fair and impartial trial because a Special Prosecutor was not sworn or appointed to represent the State of Texas, but was merely hired by the victim’s family “to avenge the personal feelings and emotions of the family.... ” We follow in the rejection of that contention by overruling this ground of error, but also note that Art. 2.01 is specifically contrary to appellant’s argument. In part, it is provided:

“It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” (Emphasis added.)

In his next ground of error appellant argues that the State engaged in improper jury argument. The following comments are objected to:

“We must have, in a contemporary society, a return to the basic principles of law and order. In this case, perhaps more than any other, demonstrates the kind of conduct that threatens the very basic structure of the community in which we reside. It threatens our schools. The next step, if persons can escape criminal conduct on this type of evidence that has been produced, it will threaten our homes. This evil, this growing evil, it must be challenged.” (Emphasis added.)

Appellant’s objection that the comments were an appeal to passion outside the record was overruled.

In Alejandro v. State, 493 S.W.2d 230 (Tex.Cr.App.), this Court enunciated the permissible bounds of jury arguments. The following areas have been approved by the Court:

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Lopez v. State, 628 S.W.2d 77 (Tex. 1982).

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