Fuller v. State

• Decision Date: 25 March 1992
• Docket Number: No. 71046,71046
• Citation: 829 S.W.2d 191
• Parties: Aaron Lee FULLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 191

829 S.W.2d 191

Aaron Lee FULLER, Appellant, v. The STATE of Texas, Appellee.

No. 71046.

Court of Criminal Appeals of Texas,

En Banc.

March 25, 1992.

Rehearing Denied May 6, 1992.

Floyd D. Holder, Jr. (court appointed), Lubbock, for appellant.

Ricky B. Smith, Dist. Atty., Lamesa, Robert S. Walt, Asst. Atty. Gen. (of counsel), Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

BENAVIDES, Judge.

This is a direct appeal in a capital murder case. Late one evening in March of 1989 Appellant forced his way into the apartment of Loretta Stephens, an elderly Lamesa woman, stole money from her bedroom while she slept, beat her with his fists, suffocated her with a pillow, and raped her dying body. He then placed Stephens' corpse in the trunk of her own automobile, drove out of town, discarded the cadaver among some tall weeds near the highway, and later abandoned the car at a bus depot in Lubbock. For this offense, he was convicted of capital murder and sentenced to death. Appeal to this Court is automatic. See Art. 37.071, § 2(h), V.A.C.C.P.; Tex.R.App.Proc. 40(b)(1).

I.

In his first point of error, Appellant complains of testimony given by Dr. James Grigson at the punishment phase of his trial. Grigson, a well-known psychiatrist who often testifies as an expert for the State in capital murder prosecutions, was permitted over objection to express the view that "absolutely there is no question, no doubt, whatsoever, that [Appellant] ... will commit future acts of violence in the future, and represents a very serious threat to any society which he finds himself in." Appellant contends that such testimony violates due process of law on the basis that it is not "recognized within the field in which he [Grigson] practices" or because "Grigson simply has no demonstrable qualification for predicting dangerousness of a hypothetical individual[.]"

Appellant's argument, although it purports to attack the admissibility of Grigson's testimony in particular, actually impugns the testimony of all psychiatrists who claim a predictive aptitude unrecognized by the American Psychiatric Association and unsupported by empirical data. Insofar as this claim touches concerns of the United States Constitution, however, it was resolved contrary to his position in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). This Court is not, of course, at liberty to reexamine that holding.

On the other hand, if taken as a challenge under state rules of evidence, Appellant's attack on the reliability of Grigson's testimony seems to implicate aspects of Rules 702 and 705(c), Texas Rules of Criminal Evidence, as well as principles usually attributed to the celebrated opinion of Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (D.C.Cir.1923), and long since adopted by this Court as an integral part of Texas criminal jurisprudence. And yet, Appellant is far from clear about the basis of his complaint, and our case law is fairly specific when it comes to the expert testimony of Dr. Grigson.

Early on, this Court established a concise response to complaints about psychiatric testimony on "future dangerousness." Looking to the statutory direction that "evidence may be presented as to any matter that the court deems relevant to sentence[,]" Art. 37.071, V.A.C.C.P., we simply held that appellate complaints about the admissibility of such evidence were not well-founded because "[o]bviously the [trial] court deemed the testimony relevant[.]" Moore v. State, 542 S.W.2d 664, 676 (Tex.Cr.App.1976). A year later, however, we were prepared to require not only that the testimony be relevant but also that the psychiatrist giving it be qualified as an expert. Battie v. State, 551 S.W.2d 401, 407 (Tex.Cr.App.1977). Eventually, following these and other cases, we concluded in general that "psychiatry is ... sufficiently advanced to permit predictions of future violent behavior[,]" and that Dr. Grigson in particular is "well qualified to state his opinion regarding the probability that [an accused will] be a continuing threat to society." Chambers v. State, 568 S.W.2d 313, 324 (Tex.Cr.App.1978). See also Nethery v. State, 692 S.W.2d 686, 708-709 (Tex.Cr.App.1985). ¹

Our jurisprudence in this area has been consistently contrary to Appellant's position, and we decline to reexamine it here, principally because the issue is neither well presented by the trial record in this cause nor well joined in the appellate briefs. We of course express no view concerning the effect of evidentiary rules not argued here by the parties and not yet discussed in the case law on this subject.

Appellant's first point of error is overruled.

II.

In his second point of error, Appellant maintains that evidence implying his membership in or connection with the Aryan Brotherhood should not have been received over his objection at the penalty phase of trial. He first claims, based mainly on United States v. Lemon, 723 F.2d 922 (D.C.Cir.1983), that he may not be penalized for the exercise of rights secured to him by the First Amendment of the United States Constitution, particularly the rights of free belief and free association. Further, he maintains that the evidence did not, in any case, prove him actually to be a member of the Aryan Brotherhood, and was therefore irrelevant to the prosecution.

We acknowledge, of course, the holding in Lemon that a heavier sentence may not be assessed consistently with due process "for the exercise of first amendment rights." Id. at 937. See also Roberts v. United States, 445 U.S. 552, 556, 100 S.Ct. 1358, 1362, 63 L.Ed.2d 622 (1980). Indeed, we are willing to accept for purposes of the present discussion that Lemon is sound as a matter of federal constitutional interpretation, even though the decisions of this Court on federal questions are not reviewable in the D.C. Circuit. We do not believe, however, that membership in the Aryan Brotherhood is protected under the standard effective in that jurisdiction.

Free association with other people holding similar beliefs, including beliefs which are themselves distasteful to the Constitution, is certainly among the rights assured by the First Amendment. But because organizations with illegal aims are not protected by the Constitution, neither is membership with intent to further those aims. Id. at 939-940. Whether the Aryan Brotherhood is such an organization, therefore, determines the extent to which membership in it is protected by the First Amendment.

The evidence of which Appellant here complains was adduced mainly through the testimony of an investigator for the Special Prison Prosecution Unit in Huntsville, whose job apparently includes maintaining information on inmate gang activity in the Texas prison system. According to him,

[t]he Aryan Brotherhood is a white supremacy group, neo-nazi type organization, all white individuals who are basically racists. ... They are not law-abiding ... [Violence] is their main function ... Intimidation and fear ... If you are violent, you take care of business, well, then you can control people and people will fear you.

In our view, this testimony is enough to support a conclusion under the rule announced in Lemon that membership in the Aryan Brotherhood is not a right of free association protected by the First Amendment. ²

But Appellant also objected at trial in this cause, and does so again on appeal, that testimony concerning the Aryan Brotherhood and other gang activity in Texas prisons should not have been received because the State did not show that Appellant was actually a member of any such organization or that he subscribed to any of their beliefs. The State interprets this as a relevancy objection and, indeed, it has the look of a conditional relevancy complaint. But it is now clear that evidence should not be excluded merely because its relevance may depend upon the production of additional evidence at a later point in the trial or because its probative strength is alone insufficient to prove a significant fact. This is because Texas Rule of Criminal Evidence 104(b) provides that:

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

The trial court specifically followed this rule when, confronted with appellant's relevancy objection, he stated in making his ruling, "I expect him [the prosecuting attorney], of course, to prove those things up [and] I will overrule it, pending the fact that he does prove it up." Clearly, the parties must be allowed to develop their cases one step at a time.

Still, in the instant cause, the only evidence offered to show Appellant's connection with prison gangs was the report of one James Daniel, whose inarticulate and rambling testimony is almost impossible to decipher. We reproduce here all parts of his testimony in which the State attempted to establish Appellant's affiliation with the Aryan Brotherhood. It begins when Daniels was asked whether Appellant had "ever sa[id] anything ... about being a member of any prison gangs." Daniels replied:

A As near as I can recall,--this has been quite a--quite a bit back. As near as I can recall, he--Let's see. I don't remember the exact words, or anything. I remember one time he was talking about the--some of--it was one of--I guess it was one of the groups in prison.

Q What was the name of it?

A Again, I am going to say I am not sure, because I don't remember exactly. I think it was something like Aryan, or something like that.

[Objections omitted]

Q Did he tell you anything about--himself, the defendant, did he tell you anything about the beliefs of that group?

A He--At one time, I think--if I remember correctly, he--we might have been talking along that line. There wasn't nothing really concrete.

Q Do you remember what he...