Fields v. State

• Decision Date: 03 February 1982
• Docket Number: No. 64519,64519
• Citation: 627 S.W.2d 714
• Parties: Mark Douglas FIELDS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 714

627 S.W.2d 714

Mark Douglas FIELDS, Appellant, v. The STATE of Texas, Appellee.

No. 64519.

Court of Criminal Appeals of Texas.

Feb. 3, 1982.

Rehearing Denied March 3, 1982.

Charles Perry, Paul Boudloche, on appeal only, Wichita Falls, for appellant.

Timothy D. Eyssen, Dist. Atty., Wichita Falls, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for capital murder as defined by V.T.C.A. Penal Code, Sec. 19.03(a)(3). After finding the appellant guilty, the jury answered "yes" to the first two special issues submitted under Art. 37.071(b), V.A.C.C.P. Punishment was assessed at death.

The appellant was convicted of murdering Linda Brown, the estranged wife of Officer James Brown of the Wichita Falls Police Department, on April 18, 1975. The deceased died of a single gunshot wound. The proof showed that Officer Brown had hired the appellant to commit the murder for $400. The appellant does not challenge the sufficiency of the evidence.

The appellant was arrested on January 10, 1976. On May 10, 1976, jury selection began. On May 11, 1976, after three jurors had been selected, the trial court declared a mistrial over the appellant's objection.

On June 21, 1976, jury selection for the appellant's second trial began. This time a jury was successfully chosen. However, during the State's case-in-chief, one of the prosecutor's questions elicited testimony referring to an inadmissible oral statement made by the appellant. At that point, the appellant's counsel objected and asked the trial court to declare a mistrial. The court granted the request.

On January 18, 1977, a third trial began. This trial proceeded to a normal conclusion, and on January 21, 1977, the jury found the appellant guilty as charged. At the punishment stage of this trial the State's only evidence consisted of the testimony of Dr. Leon Morris, a psychologist, and Dr. Jack Tomlison, a psychiatrist.

Outside the presence of the jury Dr. Morris was questioned about any warnings he may have given the appellant concerning the psychological examination he was to do:

"Q Prior to the time that you did this evaluation, Mr. (sic) Morris, did you advise the Defendant that he didn't have to talk to you?

"A Did I advise him that he did not have to talk to me?

"Q Yes.

"A Yes. The first time that I saw him was April the 15th, 1976. I talked with him briefly. I did not examine him at that time. I left some paper tests for him to complete.

"Q Did you at any time tell him that he didn't have to talk with you, didn't have to discuss this with you?

"A I don't remember. I left the tests with him and the next day I went back, and he had not done them. He left me a note stating that-well, if you would like I can read it to you. It says, 'I don't mind doing the tests, but since I have been arrested I have been lied to many times. Therefore, I do not trust anything they come up with for me to do. I will have to talk to my lawyer about this first. I'm sorry. Mark Fields.' So, the testing was postponed. At this time, he had not done any of the tests.

"Q That was what date?

"A The day I picked the note up was April 16th, 1976, but before that, the day before that, April 15th, the day I left the tests I talked with Mr. John Martin of the district attorney's office, and I talked to Mr. Bailey, the Defendant's attorney, and I told both of them that I had been requested to do this examination, and I told them that if they had any information that might be relevant to this examination, I would be happy to consider it, so I did talk with the Defense attorney before doing any tests.

"Q Did you tell Mr. Fields at any time that he did not have to participate in the tests?

"A I believe I did. I don't know whether I told him that the first day or not, but I told him that later, if not the first time.

"Q Can you tell the Court whether or not you did at any time tell him, Mark Douglas Fields, that the result of any evaluations you might make of him could be used in evidence against him?

"A I don't remember for sure whether I did or not.

"Q You cannot say that you did?

"A I cannot say that I did. I do remember discussing it with his attorney at the time.

"Q Was he present?

"A No.

"Q And this examination and evaluation that you made of Mark Douglas Fields was done at the direction of the Court, is that correct?

"A Yes, sir, Judge Kirk.

"Q Did Mr. Fields ever request that you come and talk with him?

"A No, he did not."

Upon the conclusion of this testimony, the appellant's attorney objected to allowing Dr. Morris to further testify. The basis of the objection was that the appellant had not been warned that he did not have to talk to Dr. Morris or participate in the tests, and that he had not been warned that the results of the tests could be used as evidence against him. The trial court overruled the objection.

When the jury was returned, Dr. Morris was then asked about the results of his tests:

"Q Do you have a diagnostic impression of this Defendant?

"A Yes, certainly, I do. His diagnosis was anti-social personality disorder.

"Q Generally, can you tell us in lay terms what the anti-social personality disorder means?

"A Generally speaking, it refers to a criminal kind of orientation. This individual has a very weak conscience or no conscience, and has poor impulse control, has inadequate regard for other people and his feelings are very shallow.

"MR. RICHIE: Your Honor, this is repetitious. He told us that once.

"THE COURT: Overruled.

"A (Continuing) The person has little regard for society's rights and standards, he is very likely to encounter difficulty with rules and laws and very likely to be in trouble over and over and over.

"Q Doctor, do you have an opinion as to whether or not this Defendant is likely to commit criminal acts of violence in the future that will constitute a continuing threat to society?

"A I would say he is very likely to."

After Dr. Morris testified, Dr. Tomlison was questioned outside the presence of the jury:

"Q Dr. Tomlison, did you, under the directions of the Court, see Mark Douglas Fields, the Defendant in this case?

"A Yes, I did.

"Q Do you recall when you first saw him?

"A I saw him on June the 10th, 1976.

"Q How many times thereafter?

"A Just the one time.

"Q All right, sir, did you, prior to the time-he was in the Wichita County jail at that time?

"A He was in the Wichita County jail.

"Q Prior to the time that you talked with him, did you advise him that he did not have to talk with you?

"A No.

"Q Did you advise him that the results of your examination could be used in evidence against him if he were tried for any offense?

"A Not that I remember.

The appellant's attorney then made the same objection to Dr. Tomlison's testimony as he had made to that of Dr. Morris. It, too, was overruled.

Before the jury, Dr. Tomlison testified that, based upon his examination, he believed that the appellant had an "anti-social personality" pattern. After describing this personality pattern, the witness was asked:

"Q Would an individual such as you have just described be likely to continue to come into contact with society illegally, in other words, they would have problem with organized society?

"A The question was, as I understand it, in my opinion would he continue to come into conflict with the law?

"Q Yes.

"A Yes, he would."

At the time of the examinations by Drs. Morris and Tomlison, the appellant was in custody. He had been indicted and was represented by an attorney. The appellant never raised the issues of his competence to stand trial or his sanity at the time of the offense. Although the record contains no written order by the trial court, both doctors testified that their examinations were at the direction of the court. Dr. Morris further testified that he had been instructed to determine whether the appellant was competent to stand trial.

The record fails to reflect that the appellant was advised before the examinations that he had a right to remain silent and that any statement he made could be used against him at the punishment phase of his trial.

We hold that the admission of the testimony of Drs. Morris and Tomlison violated the appellant's right against self-incrimination as guarantied by the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. 10 of the Texas Constitution. The erroneous admission of this testimony requires a reversal of the appellant's conviction. See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981); Clark v. State, 625 S.W.2d 324 (Tex.Cr.App.1981).

In nine grounds of error, the appellant also contends that there was error in the guilt-innocence stage of his trial. We find it necessary to address only five of those grounds.

In two grounds of error, the appellant contends that his confession is inadmissible because his arrest was based on less than probable cause. These grounds of error attack the sufficiency of the affidavit filed in support of the request for an arrest warrant. Although the appellant raised this contention before trial and presented evidence at a pre-trial hearing, he failed to introduce into evidence either the arrest warrant or the affidavit. Our search of the record in this case did not reveal either document. The appellant did not request that either document be included in the appellate record. For these reasons, nothing is presented for review.

In one ground of error, the appellant contends that his confession is inadmissible because it was induced by promises. The only evidence of any promise was the testimony of the appellant's wife that the district attorney told her that the appellant did not need an attorney because he would be given immunity from prosecution if he testified against his co-defendants. Even if we concluded that such a promise would have rendered the appellant's confession...