Mines v. State

852 S.W.2d 941, 1992 Tex. Crim. App. LEXIS 192, 1992 WL 278695

• Court: Court of Criminal Appeals of Texas
• Decided: October 14, 1992
• Docket: 70893
• Status: Published

Opinions

OPINION

MILLER, Judge.

Appellant was convicted of capital murder. V.T.C.A. Penal Code § 19.03(a)(2). Upon the jury’s affirmative findings on the three special issues submitted, the trial judge sentenced appellant to death.¹ Art. 37.071(b)(lH3) and (e), V.A.C.C.P. Appellant presents two points of error in this direct appeal. Art. 37.071(h). We will affirm the trial court’s judgment.

In his first point of error, appellant contends the trial court erred in overruling his challenge to the array. At the conclusion of the voir dire process², appellant filed and presented to the court a motion alleging the jury in this cause was unlawfully impaneled in that “no black, negroid or colored (the phrase preferred by the Defendant himself) jurors were seated by the Court[.]”³ Of the three black prospective jurors on the panel, defense counsel peremptorily challenged one and the State so challenged the remaining two. Appellant asserts these two prospective jurors were struck by the State solely because of their race in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Art. 35.261, V.A.C.C.P.⁴

In response to appellant’s motion, the prosecutor took the stand and testified as to her reasons for striking the two venire-persons, both of whom were black females. There were two main reasons why the prosecutor struck prospective juror Hamilton. First, Hamilton stated on her juror questionnaire form that she believed in punishment, but not capital punishment. The prosecutor acknowledged, however, that after the three special issues were explained to Hamilton, she stated that she believed in the death penalty and could answer the issues “yes.” Nevertheless, the prosecutor felt Hamilton was tentative in her answers, had difficulty understanding the issues, and tended to agree with whatever question was asked of her. On cross-examination by defense counsel, the prosecutor reiterated these same feelings regarding prospective juror Hamilton and added that Hamilton’s answers concerning the death penalty needed to be viewed within the context of her voir dire. The second reason proffered for the peremptory challenge against Hamilton was that she had been a maid in defense counsel’s home, and the prosecutor felt that that situation might cause Hamilton to have a bias toward any evidence presented by the defense.

There were several reasons offered by the State for its peremptory challenge of prospective juror Champion, who was a minister’s wife. Champion stated on her juror questionnaire form that she did not believe in the death penalty because of her religious training, but upon voir dire examination she stated she could answer affirmatively the punishment issues. The prosecutor felt that “[Champion’s] answers to questions still tended to be some [sic] equivocal in regard to the death penalty.” Moreover, in the prosecutor’s opinion, Champion had difficulty understanding the third special issue and the question of insanity.⁵ On cross-examination, the prosecutor acknowledged that Champion said she could answer the special issues, but she felt Champion had previously been “very emphatic” in her disbelief in the death penalty.

After explaining why she peremptorily challenged these two black venirewomen, the prosecutor gave her unsolicited reasons for striking seven similarly situated white female venirepersons. The prosecutor also noted for the record that she did not strike a third black female on the jury panel who initially indicated on her questionnaire that she could assess the death penalty if the offense involved a child. According to the prosecutor, after the law was explained to this venirewoman she stated unequivocally that she could follow the law and answer the special issues according to the evidence. Defense counsel peremptorily challenged this venirewoman.

The trial judge entered on the record his findings of fact and conclusions of law, noting that he was able to observe the prospective jurors’ tone of voice, physical reactions to questions, and any pauses, delays, or spontaneity in their answers to questions. The court found the prosecutor’s reasons for striking the challenged venirepersons were related to an issue in the case, namely whether the prospective jurors could affirmatively answer the punishment issues knowing the consequences thereof. The court further found that all jurors, regardless of race, were questioned in the same manner on the same subject matter for essentially the same amount of time. The court concluded the challenged black venirepersons were struck for race-neutral reasons. Appellant’s challenge to the array was thus overruled.

For claims made pursuant to Art. 35.261 and Batson, this Court has held that the correct standard of appellate review is “clearly erroneous.” Hill, 827 S.W.2d at 865, citing Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991); Tennard v. State, 802 S.W.2d 678 (Tex.Crim.App.1990); and Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (Opinion on State’s Motion for Rehearing). That is, the reviewing court must view the record in the light most favorable to the trial judge’s ruling and must not disturb that ruling unless the court is “left with a firm conviction that a mistake has been committed.” Harris v. State, 827 S.W.2d 949, 955 (Tex.Crim.App.1992), citing Williams and Whit-sey, supra. This standard of review is necessarily a deferential one as a trial judge’s findings on a claim of purposeful discrimination during jury selection are largely based on credibility evaluations made during voir dire and the “Batson” hearing. Robinson v. State, 851 S.W.2d 216, 226-27 (Tex.Crim.App.1991) (pending on rehearing on other grounds). Thus, in determining whether a trial judge’s finding of no purposeful discrimination was clearly erroneous, we consider the challenged prospective juror’s voir dire as a whole, as well as other relevant circumstances of the voir dire of the panel, and accord due deference to the trial judge’s ruling. Sterling v. State, 830 S.W.2d 114 (Tex.Crim.App.1992).

The record reflects that prospective juror Hamilton initially stated she was against the death penalty, but she recognized there were situations where capital punishment might be appropriate. Hamilton then agreed, however, with the prosecutor’s assessment that she did not believe in the death penalty under any circumstances. The prosecutor explained the juror’s role in the verdict at the punishment phase and reviewed the three punishment issues with her. After discussing these issues with the prosecutor, Hamilton stated that she now believed in the death penalty. Hamilton answered affirmatively the prosecutor’s questions on whether she could answer the punishment issues and whether she believed society had a right to have the death penalty. Hamilton also stated that she was a former maid for defense counsel’s mother, but that she had not worked in his home since the 1960s⁶ and that affiliation would not influence her. Before concluding her voir dire examination of Hamilton, the prosecutor once again broached the subject of the death penalty. Hamilton stated on her questionnaire that she did not believe in the death penalty because she “had not thought about it really[.]” Since completing her questionnaire, Hamilton had considered the death penalty and concluded the death penalty was appropriate punishment depending on the crime committed and how it was committed.

Prospective juror Champion also indicated on her questionnaire form that she did not believe in the death penalty as a result of her religious training, but then her statements to the prosecutor regarding her beliefs toward capital punishment became unclear. Upon questioning about the three special issues rather than the death penalty per se, Champion stated that she could answer “yes” to the three punishment issues if the State met its burden of proof.⁷ The prosecutor reviewed other relevant trial issues with Champion and then returned to the question of the death penalty. Champion expressed her view that “if the evidence really proved” that the defendant was incapable of rehabilitation, she would not be reluctant to impose the death penalty as punishment. The evidence proven at trial was the factor which would change Champion’s “way of thinking” regarding the death penalty.

In his brief, appellant argues the prosecutor’s reasons for peremptorily challenging Hamilton and Champion are contrary to direct statements made by the prospective jurors, are frivolous, and do not rebut the prima facie evidence of racial discrimination. The record reflects the prosecutor’s reasons for striking these persons from the venire are clear, specific, relevant to issues in this cause, and, most importantly, are facially race-neutral. In our opinion, these reasons are sufficient in and of themselves to rebut a prima facie case of discrimination. The issue to be resolved is whether appellant has sustained his burden of persuasion and rebutted the race-neutral explanations given by the State at the Batson hearing. Williams, 804 S.W.2d at 101.

In his brief, appellant directs us to testimony in the record from the prospective jurors which is contrary to the race-neutral explanations offered by the State for its two peremptory challenges. Specifically, appellant cites the testimony of venireper-son Hamilton where she stated she could answer affirmatively the special issues, that she believed in the death penalty, and that her work as a maid in defense counsel’s home would not influence her.⁸ As to venireperson Champion, appellant notes she too stated she could answer “yes” to the punishment issues, including the third issue which initially confused her, and that she was not reluctant to give the death penalty as punishment in spite of her religious training. Appellant also points out that Champion had formerly served on a grand jury. Because there is evidence in the record which controverts the State’s neutral explanations for its peremptory challenges, appellant asserts the State’s reasons for striking the two were necessarily racially motivated. On the basis of the facts of the voir dire and the trial court’s findings and conclusions, we do not agree with appellant.

The State has the right, as does the defense, to ask proper questions of prospective jurors so that it may intelligently exercise its peremptory challenges. Williams, 804 S.W.2d at 107. Generally, in capital murder prosecutions the State concentrates a substantial portion of its voir dire examination reviewing the prospective juror’s beliefs on capital punishment and the three punishment issues. This was true in this case, especially as to venireper-sons Hamilton and Champion, who initially stated strong opposition to the death penalty and then changed their opinions. The record reflects, however, that the State questioned these prospective venirepersons on other relevant trial issues, i.e. burden of proof, presumption of innocence, insanity defense, etc., as were all questioned venire-persons. Appellant has not shown any disparate treatment in the questioning of the jurors or that the prosecutor’s explanations were pretexts for intentional discrimination, and indeed such would be difficult in light of the prosecutor’s explanations for her strikes of similarly situated white veni-repersons. See generally Cantu v. State, 842 S.W.2d 667, 689 (Tex.Crim.App.1992). Moreover, we find the circumstances in this case present the precise situation where a peremptory challenge is appropriate, viz: the prospective juror is not challengeable for cause, but the prosecutor does not believe the venireperson will be a favorable juror for the State, or perhaps the prosecutor considers the person disingenuous because of her change of opinion.

We have reviewed the record and find the trial judge’s findings and conclusions are supported thereby. The prosecutor's explanations for her strikes of Hamilton and Champion are race-neutral and logically related to issues presented by this case. See Tennard v. State, 802 S.W.2d 678 (Tex.Crim.App.1990). We find no lack of meaningful questioning of the prospective jurors nor disparate treatment, as we have stated. Therefore we hold appellant has failed to show purposeful discrimination by the State in the exercise of its peremptory challenges. The trial judge’s findings and conclusions were not clearly erroneous. Appellant’s first point of error is overruled.

In his second point of error, appellant contends the sentencing scheme in Art. 37.-071, V.A.C.C.P., was unconstitutional as applied to him (as violative of the Eighth and Fourteenth Amendments to the United States Constitution and Art. I, § 13 of the Texas Constitution), and that the trial court erred in failing to instruct the jury at the punishment phase of trial on the mitigating evidence of his insanity. Appellant appears to present two claims in this point. First, appellant argues there was sufficient evidence of his incompetency and insanity to require the trial judge to take the case from the jury, refrain from imposing sentence, and impanel a jury to determine his competency to stand trial, pursuant to Art. 46.02, V.A.C.C.P.⁹ Secondly, appellant raises what is now commonly known as a “Penry claim.” ¹⁰

On June 8, 1989, prior to imposition of sentence in this case (and the companion case), appellant filed a written motion to prevent the imposition of the death penalty. Appellant asserted the evidence showed he was incompetent to stand trial and was insane during commission of the offenses for which he was found guilty; thus, appellant contended the jury verdicts¹¹ were contrary to the law and facts. Appellant invoked Art. 46.02 in both his written and oral motions and moved the trial court to follow the provisions of that article rather than impose sentence or, alternatively, impose a life sentence instead of the death sentence. The motion was overruled.

We hold the trial judge did not abuse his discretion in overruling appellant’s motion. The trial judge held a pretrial hearing, in accordance with Art. 46.02, to determine appellant’s competency to stand trial on the indictment in this cause as well as the companion case. The jury from this hearing found appellant competent to stand trial in both causes. At trial on the merits, appellant pled not guilty by reason of insanity and presented extensive testimony on this defensive issue. In the jury charge at guilt/innocence, the trial judge instructed the jury on the issue of insanity and submitted to them, inter alia, a “not guilty by reason of insanity” verdict form. The jury obviously rejected appellant’s claim of insanity. At punishment, appellant presented testimony from the same psychiatrist who testified at both the competency hearing and the trial on the merits. In light of the recent adjudication of appellant’s competency, the jury’s rejection of the insanity defense, and appellant’s presentation of the same doctor’s testimony at punishment, the trial court did not abuse its discretion by refusing to refrain from assessing punishment and holding another competency hearing. Gomez v. State, 492 S.W.2d 486 (Tex.Crim.App.1973).

As to his Penry claim¹², appellant first generally reviews the cases supporting the facial validity of Art. 37.071,¹³ and its treatment of mitigating evidence¹⁴, and then reviews the evidence in this case as to insanity and incompetency.¹⁵ An extensive amount of testimony was given at trial regarding appellant’s mental condition, which we now review.¹⁶

During the State’s case-in-chief, there was little testimony regarding appellant’s behavior or his mental faculties following his arrest. According to one investigator from the City of Waxahachie, appellant rationally responded to questions when advised of his rights and followed instructions from the investigator. A former Waxahachie investigator, Maurice Lowrey, who participated in appellant's arrest on May 30, 1988, and booking at the police station, stated appellant would talk with officers but he refused to tell them his name. Eventually appellant gave a confession which established appellant had previously been arrested for robbery in September of 1987. He remained incarcerated in the Ellis County Jail until May 19, 1988, when the robbery charges against him were dismissed, and he was sent to Terrell State Hospital.¹⁷ Appellant was released from Terrell on May 24, 1988, and he committed this capital murder three days later, on May 27, 1988. Lowrey stated, based upon his conversations with appellant,¹⁸ that he did not believe appellant was insane because he was “self-educated” and very intelligent, had a pleasant manner and good attitude, and was aware of the circumstances in which he was situated.

James Hill, Captain of the Waxahachie Police Department, testified he gave mi-randa warnings to appellant on May 31st. On the “statutory warning form”, Hill indicated the name of the person warned was “John Doe” because appellant, when asked his name, would answer “over there” and look up at the wall. Appellant answered in this manner approximately three times, but Hill thought it was unusual only in the sense that appellant was uncooperative.

The defense presented extensive testimony in its case from Dr. Ricardo Schack, a psychiatrist. Schack was appointed by the trial court in the spring of 1988 to examine appellant. Schack’s first visit with appellant was April 13, 1988, at the Ellis County Jail, at which time appellant was very agitated, verbally abusive, and experiencing delusions of grandeur.¹⁹ Schack conducted his assessment of appellant in the jail because the jailers recommended appellant not be removed from his cell because he was agitated.

Schack again met with appellant in December of 1988, and, overall, met with appellant five or six times (for a total of about ninety minutes) during which time appellant became less agitated but his behavior did not change significantly. On his last few visits, Schack attempted to converse with appellant but found it very difficult, as talking to appellant was like “a constant argument.” During the spring and winter time periods, Schack believed appellant was “mentally impaired” and diagnosed appellant as suffering from manic depressive illness, also known as bipolar disorder, which Schack stated:

... is an illness that is characterized by — probably the best way to say it is that the brain kind of goes into overdrive. The thinking becomes irrational. The person starts to think irrational thoughts, becomes very impulsive. Can or may become violent. Can or may become rather dangerous.

And what happens, classically, ... is that the manic depressive is a patient that kind of makes sense and you’re nodding as they’re talking and all of a sudden you find you are shaking your head because they have stopped making sense. The thinking is too grandiose. They’re going to get rich, they’re very wealthy and they have a massive amount of wealth. It’s not the classic person who is listening to voices or talking to themselves or anything. But it’s more like an illness of degrees.

A person shows very impaired judgment, will spend ... for example, spend [sic] large amount [sic] of money that they don’t have.... And they will make statements that are very, very grandiose.

Schack stated that, in his opinion, this was a medical condition, but that, as a physician, he “tend[ed] to be very biological.”

According to Schack, persons with bipolar disorder may change their behavior patterns daily, and it is possible for a person to be “insane” but yet be alert, aware of his surroundings, intelligent, pleasant, courteous, and able to talk on a number of subjects. In Schack’s opinion, on the commission date of this offense, appellant was insane, i.e., he was incapable of knowing his behavior was wrong. See Y.T.C.A. Penal Code § 8.01(a). At the time of trial in this cause, Schack had not examined appellant in approximately seven months.

On cross-examination of Schack, the prosecutor established that Schack’s practice was not primarily concerned with treating persons charged with criminal offenses, and in fact Schack preferred not to. Also established was that, during his incarceration, appellant could communicate in complete sentences, knew he was in jail, understood the function of a lawyer but did not want one representing him, lacked respect for the court system, and did not want to talk to Schack during his jail visits. Schack stated that appellant’s lack of respect for the courts and his poor judgment in not wanting legal representation could be components of insanity although he recognized “normal people” sometimes exercise poor judgment as well. Appellant’s agitation and argumentative personality could also be components of insanity. Schack listed specific components which were indicative of manic depressive disorder, viz: pressure, speech, flight of ideas, irritability, lack of need of sleep, impaired judgment, being argumentative, and mood swings. Schack testified each of these was found in appellant to some degree.

Moreover, Schack stated that bipolar disorder is cyclical, meaning “[i]t can be extremely variable, from months to years to weeks, from individual to individual.” The disorder may go into remission even without treatment, and when it is subsiding a person so afflicted is capable of following instructions and conforming his behavior to expectations. Appellant appeared reasonably normal during his trial and a previous hearing, according to Schack.

In rebuttal, the State presented testimony from two psychiatrists. The first was Dr. James Grigson who specializes in forensic or legal psychiatry.²⁰ Grigson, too, was appointed by the court to examine the appellant. Grigson stated he attempted to examine appellant at the Ellis County Jail on November 15, 1988, but he refused the examination after Grigson advised him of his rights, so this jail visit lasted five minutes “at the most”. In March of 1989, Grigson only observed appellant for approximately thirty to ninety minutes, as again appellant would not converse with him. Based on these two observations and his review of appellant’s hospital records, Grigson concluded appellant was “not suffering from a serious, severe mental disease or defect that would prevent him from knowing the difference between right and wrong[,]” and he saw no signs or symptoms indicating appellant was suffering from bipolar disorder. Grigson elaborated that he had observed persons with bipolar disorder, and stated they are generally severely depressed or suicidal but do not engage in criminal behavior. In examining persons charged with criminal offenses, Grigson found the majority of the persons are either “incompetent because they are street people that have been turned out from state hospitals”, are sociopaths who repeatedly commit offenses, or are drug abusers.

On crossexamination, Grigson admitted he had been nicknamed “Dr. Death” by the news media, and that he has been criticized by the American Psychiatric Association, a group that does not believe in the death penalty and does not believe a person’s propensity for future dangerousness can be predicted.

The second psychiatrist to testify was Dr. Quynh Nguyen, who is one of three psychiatrists at Terrell State hospital. Nguyen conducted the initial evaluation of appellant when he was brought to the hospital on May 19, 1988, pursuant to a protective custody order. During an initial examination, Nguyen evaluates the client’s behavior, mood, affect, rate of speech, and thought content. Nguyen stated appellant very ably described the circumstances which led to his commitment²¹ and discussed the presidential candidates, was coherent but talked “around,” and denied having any suicidal or homicidal ideas or a history of mental illness or drug abuse.

Nguyen also physically examined appellant, and found no evidence of medical illness or organic dysfunction which would cause physical or mental impairment. Each member of a treatment “team”²² also evaluated appellant and determined he was not mentally ill and therefore did not recommend he be committed to the hospital. The diagnostic consensus of the treatment team was that appellant “had a mixed personality disorder with paranoia, passive, aggressive, antisocial features.” Nguyen stated that a personality disorder was not the same as a mental disease or defect, with the difference being that a person with a personality disorder is able to know right from wrong, make his own judgments, and is responsible for his own actions.

At the guilt/innocence phase of trial, the jury, arguments from both the State and defense counsel concentrated primarily on the issue of insanity. By its verdict, the jury rejected appellant’s claim of insanity at the time of commission of this offense.

At punishment, the State again offered the testimony of Dr. Grigson. Through a hypothetical question based on a person with six prior convictions,²³ a diagnosis of an antisocial personality, and the facts of this offense, Grigson stated in his opinion the hypothetical person would commit future acts of violence and represented a “total threat” to society. The State rested, and the defense again called Dr. Schack to testify. He testified that proper treatment of bipolar disorder would reduce the odds that appellant would commit future acts of dangerousness.

In the Penry case, the United States Supreme Court determined our death penalty statute was unconstitutional as applied to Penry because the punishment issues did not provide the jury with a vehicle to express its “reasoned moral response” to his evidence of mental retardation and childhood abuse, and therefore the jury could not give mitigating effect to that evidence. The Supreme Court agreed with Penry that his mitigating evidence had relevancy to his moral culpability beyond the scope of the special issues, and thus, an instruction “informing the jury that it could consider and give effect to the mitigating evidence ... by declining to impose the death penalty” was necessary. Penry, 492 U.S. at 328, 109 S.Ct. at 2952. Consequently, a constitutional capital sentencing scheme is one that allows the jury to consider relevant mitigating evidence, and provides the jury with a vehicle to express its reasoned moral response to that evidence in arriving at an individualized punishment assessment. Goss v. State, 826 S.W.2d 162, 164 (Tex.Crim.App.1992).

In Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1989) (Opinion on Motion for Rehearing), and Goss, this Court elaborated on the necessary criteria for a successful Penry claim. Evidence of the quality and character of “Penry evidence” is that which is specifically relevant to a defendant’s “moral culpability.” Goss, 826 S.W.2d at 164. We noted that moral culpability was not related to the lessening of the defendant’s guilt for commission of the capital offense, but rather to his “death-worthiness.” Id. at 165. This concept of deathworthiness is best understood as an individualized assessment of the appropriateness of the death penalty, given the offense and the offender. Lackey, 819 S.W.2d at 133 (emphasis added). The evidence presented at trial, that which the defendant claims is in fact “mitigating,” is relevant to the individualized assessment of the propriety of the death penalty for the offender if there is a nexus between this evidence and the circumstances of the offense which tends to excuse or explain the commission of the offense, suggesting that particular defendant is less deserving of a death sentence. Lackey, 819 S.W.2d at 135, n. 10; Goss, 826 S.W.2d at p. 165; and Nobles v. State, 843 S.W.2d 503, 506 (Tex.Crim.App.1992). If the jury is presented relevant mitigating evidence, it must be afforded a means by which to give that evidence adequate consideration. The question then becomes whether the Art. 37.071(b) issues are a constitutionally sufficient means.

Appellant, like Penry, was afforded a competency hearing prior to trial on the merits, and also pled not guilty by reason of insanity. As in Penry, the jury rejected both claims of incompetency and insanity. The similarities, however, end there as appellant’s “mitigating” evidence is qualitatively different than that presented in Pen-ry, and therefore is not relevant, beyond the scope of the special issues, to the jury’s individualized assessment of appellant’s moral culpability for this offense.

The evidence presented by appellant as to his mental condition is relevant to the special issues and is fully encompassed thereby. As to the first punishment issue, evidence of any mental impairment suffered by appellant can be given full mitigating effect as it goes to his ability to act deliberately. Schack testified that persons with bipolar disorder may have irrational thoughts or experience impulsive behavior. This evidence is logically related to whether appellant committed this offense deliberately and with a reasonable expectation that death would result. In defense counsel’s argument, he framed the issue and ably applied the facts, and, indeed, his argument illustrates the relevancy of the mitigating evidence to the issue. Counsel contended the evidence showed appellant had never done anything deliberately in his life and was incapable of expectation. He also argued the commission of this offense was not planned, but reactionary and animalistic. The jury could express its reasoned moral response to appellant’s claims of mental disease or defect by answering “no” to the first special issue. The relevancy of his mitigating evidence of his mental condition did not exceed the scope of the question.

The same is true as to the second special issue, to-wit: whether appellant would commit future acts of violence and be a continuing threat to society. There was testimony that if appellant were suffering from bipolar disorder,²⁴ proper treatment (of which he had received none since his incarceration) would reduce the odds he would commit future acts of violence; however, there was no testimony of any long term mental illness precluding appellant from conforming his behavior to societal norms. We find appellant’s mitigating evidence was encompassed within the jury’s consideration of the second punishment issue; that is whether the commission of this offense was an aberration as a result of appellant’s alleged mental incapacity, or whether it was indication of appellant’s progressively violent behavior and his propensity to commit future acts of violence.

The Penry analysis under the third special issue, which was submitted in this cause, is much like that under the first special issue. The evidence of appellant’s mental condition was directly relevant to whether appellant acted reasonably or was capable of rational thought. In his jury argument, defense counsel implicitly acknowledged the inherent relevancy of this evidence within issue three by stating he was “not even going to argue [] that [issue]” and conceded that appellant’s response to the provocation was unreasonable, “but it was done by a person who was insane at the time or at least suffering from some mental disease or defect.” If the jury so believed, the third issue provided an adequate means by which the jury could express its reasoned moral response to appellant’s mitigating evidence and answer “no” to the issue.

This case was a classic example of “a battle of the experts” and was resolved by the jury’s credibility determinations regarding those experts in conjunction with the other evidence presented at trial and each juror’s own observations during trial. The jury’s rejection of Dr. Schack’s opinion re: garding appellant’s mental condition and defense counsel’s theory of this case does not indicate a lack of a vehicle by which the jury could express its reasoned moral response to appellant’s mitigating evidence.²⁵ In this case, the punishment issues encompassed the relevant and mitigating character of appellant’s evidence, and allowed the jury a vehicle by which to give effect to that evidence. We hold Art. 37.071(b) was not unconstitutional as applied to appellant in this cause. Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.

BENAVIDES, J., concurs in the result.

1 . Appellant was convicted of murdering Vivian Moreno, by striking her on the head with a hammer, in the course of committing or attempting to commit the burglary of her home. In a companion case, appellant was convicted of the attempted capital murder of Frances Moreno, Vivian’s daughter, which offense arose out of the same incident. Appellant was sentenced to life imprisonment for the offense against Frances.

2 . The record does not indicate if and when the jury, as a whole, was sworn, but the trial on the merits began immediately following the conclusion of the pretrial hearing on the motion challenging the array. The State has not taken issue with the timeliness of appellant's motion. Cf. Rousseau v. State, 824 S.W.2d 579, 581 (Tex.Crim.App.1992) (timely motion under Art. 35.-261 made before jury, as a whole, is impan-elled).

3 . Appellant also complained “that of the sixty jurors talked to and of the eighty some odd actually seated for voir dire of the sixty, only three were of the same race as [he]”, thus intimating a claim under Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). However, no other evidence of a systematic scheme of exclusion was offered, so nothing is presented for our review.

4 . Since appellant’s trial was after the effective date of Art. 35.261, the provisions of that article apply. Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992); Rousseau, 824 S.W.2d at 581.

5 . Appellant entered pleas of not guilty by reason of insanity to the charges alleged against him in the two indictments.

6 . The record is unclear as to the precise date of Hamilton’s employment.

7 . Initially, Hamilton indicated she could never answer “yes” to the third punishment issue. At this juncture the State challenged her for cause. However, questioning by defense counsel revealed Hamilton was confused about the issue, and thus counsel rehabilitated this prospective juror.

8 . Appellant also contends the prosecutor's assertion that Hamilton was tentative in her answers is contrary to the record, but he does not cite to any specific testimony to support his contention. Whether Hamilton was in fact tentative during her voir dire depends largely upon circumstances which can only be observed during her voir dire examination, i.e., her demeanor, tone of voice, mannerisms, eye-contact with counsel, etc., to which the appellate court is not privy. It is precisely this reason why the reviewing appellate court accords great deference to the trial judge’s findings.

9 . Appellant did not invoke specific provisions of Art. 46.02. Section 4(c) provides in pertinent part:

If the issue of incompetency to stand trial is raised other than by written motion in advance of trial pursuant to Subsection (a) of Section 2 of this article and the court determines that there is evidence to support a finding of incompetency to stand trial, the court shall set the issue for determination at any time prior to the sentencing of the defendant. If the competency hearing is delayed until after a verdict on the guilt or innocence of the defendant is returned, the competency hearing shall be held as soon thereafter as reasonably possible, but a competency hearing may be held only if the verdict in the trial on the merits is "guilty.” ...

10 . Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

11 . On March 13, 1989, a competency hearing was held to determine whether appellant was competent to stand trial on the indictments charging him with capital murder and attempted capital murder. A jury returned a verdict of competent in both cases. A separate jury was impanelled for trial in the cause sub judice.

12 . The State contends appellant’s claim is waived. The punishment charge was submitted to the jury on June 2, 1989; the Penry decision was rendered June 26, 1989. Appellant’s claim is not therefore waived. See Black v. State, 816 S.W.2d 350 (Tex.Crim.App.1991) (Campbell, J., concurring).

13 . Since appellant’s trial, art. 37.071 has been amended by the 72nd Legislature. Art. 37.071, V.A.C.C.P. (Supp.1991).

14 . Appellant cites, e.g., Stewart v. State, 686 S.W.2d 118 (Tex.Crim.App.1985); Clark v. State, 717 S.W.2d 910 (Tex.Crim.App.1986); Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App.1980); O’Bryan v. State, 591 S.W.2d 464 (Tex.Crim.App.1979); and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

15 . We will not review or consider any of the evidence presented during appellant’s competency hearing, as that was tried to a different jury. We focus our attention on the evidence heard by the jury on the trial of the merits.

16 . We have reviewed in great detail the testimony from the guilt/innocence phase regarding appellant’s sanity as this testimony may be considered by the jury in its deliberations on the punishment issues. See Cantu, 842 S.W.2d at 674-75, citing Santana v. State, 714 S.W.2d 1 (Tex.Crim.App.1986).

17 . An assistant district attorney, David Jordan, testified he handled appellant's civil commitment proceeding, and that State law prohibits the civil commitment of a person against whom criminal charges are pending.

18 . Other than taking appellant’s confession, Lowrey and appellant mainly discussed politics and sports, of which appellant was especially knowledgeable. Lowrey also stated that after appellant was charged with the present offense, he visited appellant once in the jail, but on a second visit appellant refused to talk to him.

19 .Appellant told Schack he had large amounts of money, was world famous, and that he did not need to talk to him. Schack said appellant also insulted him.

20 . Grigson explained this discipline:

Forensic psychiatry is that branch of medicine primarily involving psychiatry and the law. Most of the work I do is examining individuals charged with criminal offenses to determine their competency to stand trial or their sanity at the time of the alleged offense, or whether or not they represent a continuing threat to society.

21 . Appellant asserted he had been arrested in Waxahachie for "no reason” other than he had more than $1,000 in his possession.

22 . The team consisted of a psychologist, a nurse, a social worker, and a rehabilitation coordinator.

23 .The State introduced into evidence pen packets from the state of Virginia indicating appellant had prior convictions for felonious assault and unlawful wounding, and pen packets from the state of North Carolina showing prior convictions for assault by pointing a gun, communicating threats, and felonious breaking or entering.

24 . Both Drs. Grigson and Schack agreed a person with bipolar disorder was treatable. However, in Grigson’s opinion, appellant was not suffering from this disease.

25 . See Moody v. State, 827 S.W.2d 875, 896 (Tex.Crim.App.1992) (evidence of defendant's commission to mental institution for drug and alcohol treatment can be given its full mitigating effect through the special issues).