Ex parte Barber, 71344

• Decision Date: 23 February 1994
• Docket Number: No. 71344,71344
• Citation: 879 S.W.2d 889
• Parties: Ex Parte Danny Lee BARBER.
• Court: Texas Court of Criminal Appeals

Page 889

879 S.W.2d 889

Ex Parte Danny Lee BARBER.

No. 71344.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 23, 1994.

Rehearing Denied May 11, 1994.

Robert C. Owen, Austin, for appellant.

John Vance, Dist. Atty., Teresa Tolle, Kathy Drew, Asst. Dist. Attys., Dallas, and Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Art. 11.07, V.A.C.C.P. Applicant was convicted of capital murder and sentenced to death by the trial court. Art. 37.071(b), V.A.C.C.P. This Court affirmed applicant's conviction and sentence on direct appeal. Barber v. State, 757 S.W.2d 359 (Tex.Crim.App.1988). Applicant's petition for writ of certiorari was subsequently denied by the United States Supreme Court. Barber v. Texas, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989).

Applicant presents twenty-eight allegations in this application challenging the validity of his conviction and sentence. This Court ordered this cause filed and set for submission on applicant's second point and granted applicant a stay of execution.

In his second allegation, applicant claims that a court-appointed psychiatrist obtained evidence of his future dangerousness and testified about such evidence against applicant in violation of the United States Constitution. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). We agree with Applicant's contentions that this was error. However, this Court finds the admission of Dr. Griffith's testimony to be harmless error. Accordingly, the relief sought is denied. ¹

In order to be entitled to relief on a writ of habeas corpus, an applicant must plead and prove that the error complained of did in fact contribute to his conviction or punishment. See Ex parte Dutchover, 779 S.W.2d 76, 78 (Tex.Crim.App.1989). ² Although in this case applicant has attempted to meet this burden in briefs submitted to this Court, we are not convinced that he has fully discharged that burden.

As noted in the State's brief, in addition to Dr. Griffith's testimony, the State introduced four confessions of applicant, three of which were to other murders, and the fourth of which was to an attempted murder. In all of these crimes applicant had sex with his victims, either before or after he killed them. Furthermore, the facts of this case show applicant was burglarizing a house when he bludgeoned his victim to death, and subsequently committed a sexual assault on the corpse. Three other felonies and a misdemeanor were introduced as convictions at punishment. During final argument, the State, rather than highlight Dr. Griffith's testimony, instead argued that there was so much evidence of future dangerousness the jury could ignore the psychiatrist's testimony and use the evidence alone to determine future dangerousness. In light of that evidence, and for the reasons cited in the State's brief, applicant has failed to demonstrate that he was harmed by the error of the violation of Estelle v. Smith, and we deny his request for relief.

McCORMICK, P.J., and OVERSTREET, J., concur in the result.

CLINTON, J., dissents.

BAIRD, J., not participating.

MYERS, Judge, concurring.

I agree that relief should be denied in this case, but I am unwilling to join the Court's opinion for two reasons.

First, the Court's extensive discussion in a footnote of federal law concerning abuse of the writ and of this Court's probable future attitude toward the doctrine is altogether unnecessary to the disposition of this case. Although I too am eager for comprehensive changes in Texas habeas corpus practice, and might ultimately favor many of the suggestions made gratuitously by the Court here, I invite bench and bar alike to discount the expansive obiter dicta of this case. Not only is it superfluous in the present context, but clearly improper as well, since it purports to decide a question of first impression in Texas criminal jurisprudence without benefit of briefing or oral argument.

Second, I do not agree that Ex parte Dutchover, 779 S.W.2d 76 (Tex.Crim.App.1989) controls the harm analysis in this context. Dutchover merely assigns the burden of proof to the applicant. It does not alter the standard of review. Thus, for example, if an assessment of harm were made in habeas cases according to a standard like that set out in Rule 81(b)(2), it would be the applicant's burden to prove harm rather than the State's to disprove it. This approach would require that we grant relief in the instant cause if applicant can show that the error about which he complains "contribut[ed] to the conviction or to the punishment." The Court may be right that the evidence is sufficient without Dr. Griffith's testimony to prove that applicant will be a continuing threat to society. But it is really not possible to say on this basis that the doctor's testimony made no contribution whatsoever to applicant's punishment. Thus, given the standard applied by the Court, I would not find the error to have been harmless.

Still, it occurs to me that we have not really considered what kind of harmless error rule to use in applications for the writ of habeas corpus. Under Texas law, applications for the writ are not cognizable when they attack final criminal convictions unless they complain of defects which render those convictions void. In this event, we do not apply any harmless error rule at all. See Ex parte Truong, 770 S.W.2d 810 (Tex.Crim.App.1989). Accordingly, the only circumstance in which we would ever be called upon to evaluate harm in context of an application for writ of habeas corpus attacking a final criminal conviction would be in cases of alleged federal constitutional violations. See Ex parte Banks, 769 S.W.2d 539 (Tex.Crim.App.1989).

Rule 81(b)(2), by its very terms, does not apply to applications for habeas corpus. Indeed, it is very much like the harmless error rule prescribed by the United States Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), for evaluating the harmfulness of federal constitutional violations on direct review of state criminal convictions. Interestingly, the Supreme Court does not apply this rule to assess the harmfulness of federal constitutional violations on collateral review of state criminal convictions. In such cases, it holds constitutional violations to be harmful only if they "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (April 21, 1993).

If we adopt a new standard of harm for use in cases of habeas corpus review which is like that adopted by the United States Supreme Court in Brecht, the result reached by the Court in this case would be correct. Of course, we are not obliged to adopt such a standard just because the federal courts have done so, even when it comes to questions of federal constitutional errors. See Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991). But I believe good reasons exist for relaxing the standard of harmfulness in Texas habeas corpus proceedings which concern alleged federal constitutional violations. In the first place, Texas does not have a greater interest in the vindication of federal constitutional rights than does the United States of America. Because the United States Supreme Court holds that the standard of harm applicable to a review of alleged federal constitutional questions is itself a question of federal constitutional law, it would be anomalous to apply a different standard of harm to the evaluation of such errors in the courts of Texas, whether on direct review or by application for a writ of habeas corpus. Moreover, exacting a greater level of confidence in the impact of errors upon the outcome of trial after the conclusion of direct review is a sensible way of balancing the greater interests of society in the...