Chamberlain v. State

• Decision Date: 16 June 1999
• Parties: (Tex.Crim.App. 1999) KARL EUGENE CHAMBERLAIN, Appellant v. THE STATE OF TEXAS, Appellee NO.72,850
• Court: Texas Court of Criminal Appeals

Page 230

998 S.W.2d 230 (Tex.Crim.App. 1999)

KARL EUGENE CHAMBERLAIN, Appellant v. THE STATE OF TEXAS, Appellee

NO.72,850

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

June 16, 1999.

ON DIRECT APPEAL FROM DALLAS COUNTY

En banc.

[Copyrighted Material Omitted]

O P I N I O N

Meyers, J., delivered the opinion of the Court in which McCormick, P.J., Mansfield, Keller, Price, Holland, Johnson and Keasler, J.J. joined.

Appellant was convicted in May 1997 of capital murder committed in August 1991. TEX. PENAL CODE . 19.03; TEX. CODE CRIM. PROC. Art. 37.0711.¹ The jury's verdicts required the trial court to sentence appellant to death. Art. 37.0711 3(g). Appeal from the sentence of death is automatic to this Court. TEX. CONST. Art. I, 5; Art. 37.0711 3(j). Appellant raises sixteen points of error. We affirm.

In his second point of error, appellant claims the evidence is legally insufficient to support the jury's finding that a probability exists that appellant will commit criminal acts of violence constituting a continuing threat to society. Art. 37.0711 3(b)(2). A brief account of the facts in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (1979), is necessary.

Appellant lived next door to the victim, a single mother, and her five-year-old son. On August 12, 1991, appellant observed the victim's brother leaving with the victim's son. Appellant went next door "to borrow a cup of sugar." Upon gaining entry to the victim's apartment, appellant bound her with duct tape and sexually assaulted her. Appellant then shot the victim in the forehead, killing her. The victim's semi-nude body was discovered on the bathroom floor some thirty-five minutes later by her brother and son upon their return to the apartment. Appellant walked his dogs after the murder.

Appellant's guilt was not uncovered until 1997. In the meantime, he confessed the murder to others, relating that he had gone to borrow a cup of sugar from his neighbor and that she had answered the door naked and seduced him. Appellant further elaborated that the victim had delighted in their sexual intercourse and explained that he had killed her in a panic only when she threatened to inform his wife of their sexual encounter.

While appellant says his non-violent past supports his contention that the evidence is insufficient to show that he is a continuing threat to society, the evidence does not show a history of violence. The State introduced evidence that appellant had attacked a fellow soldier with a knife and a woman at a shopping mall with a stun gun. The State also introduced evidence that appellant broke into a pornography shop when, seeking pornography, he had found the shop closed.

In addition to this evidence of a violent past, the State introduced the testimony of Dr. Kenneth DeKleva, a psychiatrist. DeKleva asserted that the facts of the offense reveal a sexually sadistic, antisocial personality disorder. DeKleva noted that the crime scene revealed that the perpetrator needed to inflict humiliation, degradation and pain to achieve sexual gratification. DeKleva testified that leaving the victim uncovered and exposed evinced a lack of regard for her humanity and utter lack of remorse. Similarly, DeKleva testified that the fact that appellant walked his dogs after committing the offense also revealed a disturbing lack of remorse. The subsequent fantasies blaming the victim for seducing him, along with appellant's claims that she enjoyed the assault and then blaming her for the murder because she was going to tell his wife, were all, according to DeKleva, evidence of a dangerous personality disorder. DeKleva noted the evidence of appellant's overpowering sexual urges, i.e., that as a teenager he kept a mannequin with the crotch cut out, that he burglarized the pornography store when he found it closed and had stolen inflatable sex dolls. DeKleva testified that there is no known treatment for a sexually sadistic killer and no evidence that their fantasies eventually subside. DeKleva testified that these traits reveal a dangerous person, particularly when that person had already fulfilled some of his violent fantasies. DeKleva concluded the evidence established that appellant would probably commit criminal acts of violence constituting a continuing threat to society.

The evidence sufficiently supports the jury's verdict. See, e.g., Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987)(opinion on rehearing). Appellant's second point of error is overruled.

In his third point of error, appellant challenges the factual sufficiency of the evidence to establish that he presents a continuing threat to society. Article 37.0711 3(b)(2). We have repeatedly declined to apply the review announced in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), to the future dangerousness special issue. McGinn v. State, 961 S.W.2d 161, 169 (Tex. Crim. App. 1998). We overrule appellant's third point of error.

In his first point of error, appellant argues that the trial court erred in not permitting him to rebut the psychiatric testimony of Dr. DeKleva unless he first submitted to a psychiatric examination by the State's expert. According to appellant, the trial court's refusal to permit him to rebut the State's psychiatric testimony violated his fifth amendment right to remain silent, his sixth amendment right to counsel, and his right to due process of law under the United States Constitution.

The facts are undisputed. The trial court granted the State's pre-trial motion to order appellant to submit to psychiatric examination by the State if he intended to introduce psychiatric evidence based on an examination by a defense expert. At punishment Dr. DeKleva testified for the State based on the facts of the offense and facts related during appellant's trial but not on an examination of appellant. Outside the presence of the jury, defense counsel announced its intent to rebut DeKleva's testimony with that of Dr. J. Crowder who, unlike DeKleva, had the benefit of having interviewed and tested appellant for the purpose of testifying about his future dangerousness. The trial court refused to permit any testimony based on Crowder's testing and interview unless appellant submitted to like testing and interviews by DeKleva. Emphasizing that he offered Crowder's testimony merely as rebuttal evidence, appellant objected to the trial court's conditional exclusion of the evidence on grounds that it violated his right to counsel and his right against compulsory self-incrimination.

Appellant acknowledges that under Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) and Soria v. State, 933 S.W.2d 46 (Tex. Crim. App. 1997), the trial court had the authority to exclude Crowder's testimony unless appellant conceded to psychiatric examination by the State, but only if he had introduced the psychiatric testimony first. Appellant argues that his case is factually distinguishable from Lagrone and Soria because in his case the State introduced psychiatric testimony first, and he merely offered Crowder's testimony in rebuttal.

The holdings of Soria and Lagrone are governed by the principle that if a defendant breaks his silence to speak to his own psychiatric expert and introduces that testimony which is based on such interview, he has constructively taken the stand and waived his fifth amendment right to refuse to submit to the State's psychiatric experts. The focus is the defendant's choice to break his silence. The issue is not whether appellant introduced psychiatric evidence or merely rebutted such evidence. The issue is whether the psychiatric testimony he intended to introduce was based on his own participation in the psychiatric testing and examination. Appellant intended to introduce psychiatric testimony based upon his participation in a psychiatric examination. This "constitute[s] a waiver of the defendant's fifth amendment privilege in the same manner as would the defendant's election to testify at trial." Soria, 933 S.W.2d at 54. Appellant cannot claim a fifth amendment privilege in refusing to submit to the State's psychiatric examinations and then introduce evidence gained through his participation in his own psychiatric examination. The essential principles at work in Lagrone and Soria are waiver and parity; if a defendant testifies, even in mere rebuttal, the State may be allowed to cross-examine him. Lagrone, 942 S.W.2d at 611; Soria, 933 S.W.2d at 54. That appellant intended to introduce Crowder's testimony in rebuttal after the State had introduced DeKleva's testimony does not address, much less override, these waiver and parity principles. The trial court did not abuse its discretion in conditionally excluding Crowder's testimony. Appellant's first point of error is overruled.

In point of error four appellant argues that direct appeal to this court denies him due process, in violation of the fifth and fourteenth amendments to the federal constitution. In point of error five appellant avers he is being denied due course of law, in violation of Article 1, section 19 of the Texas Constitution. Appellant argues that he is being treated disparately because if his case were reviewed by a court of intermediate appeals, as are all non-death criminal cases, the intermediate court would be compelled to review the factual sufficiency of the evidence supporting the special issues.

Appellant's argument is flawed. It is not a lack of power or jurisdiction that prevents this Court from conducting a factual sufficiency review of the special issues. See Clewis, 922 S.W.2d at 129-131. It is the nature of the special issues, which are mixed questions of fact and moral responses to the evidence, which makes factual sufficiency reviews impossible. See McGinn v. State, 961 S.W.2d 161, 168 (Tex. Crim. App. 1998). Such questions evade factual sufficiency reviews because the reviewer has no accurate means of weighing the jury's moral response to the...