Hernandez v. State

• Decision Date: 24 October 1990
• Docket Number: No. 69542,69542
• Citation: 805 S.W.2d 409
• Parties: Rodolfo Baiza HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 409

805 S.W.2d 409

Rodolfo Baiza HERNANDEZ, Appellant, v. The STATE of Texas, Appellee.

No. 69542.

Court of Criminal Appeals of Texas En Banc.

Oct. 24, 1990.

Rehearing Overruled Dec. 5, 1990.

John C. Chunn, New Braunfels, for appellant.

William L. Schroeder, Dist. Atty., New Braunfels, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

WHITE, Judge.

This is an appeal from a conviction for capital murder, specifically murder in the course of committing or attempting to commit robbery. See V.T.C.A., Penal Code § 19.03(a)(2). Appellant was sentenced to death. He brings five points of error on appeal, complaining that the trial court erred in admitting penalty-stage testimony from a psychiatrist concerning the results of appellant's pre-trial competency exam; that the trial court should have instructed the jury to disregard an alleged reference to extraneous offenses; that another reference to an extraneous offense during the penalty phase called for a mistrial; that the trial court should have stated its reasons on the record for allegedly allowing the jury to view appellant in chains; and finally that a mistrial should have been granted when several jurors were in position to see appellant in chains on several occasions outside the courtroom. After due consideration of appellant's claims, we will affirm the judgment of the trial court.

Since the sufficiency of the evidence is not challenged, only a brief recitation of the events surrounding the offense will be necessary. One day in early March, 1985, five young men in Mexico boarded a box car which would transport them into the United States. When they disembarked in San Antonio, they were approached by appellant, who asked them what they were doing. In the course of the conversation, appellant learned that the five men hoped to reach Denton, Texas, where they had an expectation of finding work, apparently at some kind of farm or ranch. Appellant then took the five illegal aliens to his house in an attempt to find them transportation to Denton.

While the men waited outside the house, appellant awakened his brother-in-law Jesse Garibay and arranged for Garibay to transport the illegal aliens in the family car for a fee. ¹ Garibay drove, appellant sat in the passengers' seat, appellant's brother Richard sat between them in the front seat, and the five illegal aliens sat in the back. Richard was soon dropped off at his place of employment and the other seven men continued their journey north into Comal County.

After reaching a secluded part of the county away from any main highway, Garibay and appellant stopped the car and pretended that they were having car trouble. One of them opened the car trunk and took out several firearms. They asked their passengers if any of them wanted to get out and urinate; when none of them did, Garibay and appellant ordered the men out of the car at gunpoint. One man tried to run away, but appellant shot him in the back and he fell down. Appellant then ordered all five men to lie face up on the ground and to hand over all their money. He began going from one to another, taking what ever they had and shooting each one in the neck. After taking what they could and leaving all five men bleeding on the ground, appellant and Garibay sped away and returned home to San Antonio. Surprisingly, only one of the five victims, Victor Manuel Serrano Cervan, died; the other four survived and two of these testified against appellant at trial.

After appellant and Garibay returned home, Susan Garibay observed her husband covering himself with blankets and acting scared; appellant sat watching television while slinging a gun on his little finger. When a news flash came on about the shootings in Comal County, appellant told his sister that he was "a gunslinger" and that President Reagan had told him that Texas was overpopulated and had instructed him to get rid of some of San Antonio's illegal aliens. Appellant was laughing and joking while saying these things, so his sister did not take the statements seriously.

Several days later, appellant and Garibay were staying with a neighbor, Anthony Urbano. Once again, a news report appeared on television about the multiple shootings near New Braunfels. Appellant, while swinging two little guns on his fingers, then bragged to Urbano that he had shot the illegal aliens and killed one of them.

Soon after these incidents, appellant took two guns to a friend and asked the friend to sell them for him. The police later recovered these guns, and firearms experts testified that these two pistols were the ones that had fired the bullets recovered from the five victims.

In his first point of error, appellant complains that the trial court erred when it allowed penalty-stage psychiatric testimony from Dr. Sparks concerning appellant's pre-trial competency examination. Appellant claims that his Fifth Amendment privilege against self-incrimination should have barred the State from using his answers against him since the record failed to establish that Dr. Sparks administered the full panoply of warnings mandated in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). ²

A criminal defendant does not waive his Fifth Amendment rights merely by requesting appointment of a court-ordered psychiatrist and submitting to the psychiatrist's competency and/or sanity examinations. Powell v. State, 742 S.W.2d 353, 357-358 (Tex.Cr.App.1987), vacated and remanded on other grounds 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 926 (1988); Battie v. Estelle, 655 F.2d 692 (5th Cir.1981). Before any such psychiatric interview, the defendant's Fifth Amendment rights should be protected by warnings intended to serve as "procedural safeguards effective to secure the privilege against self-incrimination." Smith, 451 U.S. at 466, 101 S.Ct. at 1875, quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). Such warnings should inform the defendant that he has the right to remain silent and that his statements may later be used against him in court; if the defendant faces capital charges, this warning should specifically inform him that his statements could be used against him at the punishment stage of his capital murder trial. Smith, 451 U.S. at 468, 101 S.Ct. at 1876; Ex Parte Demouchette, 633 S.W.2d 879, 880 (Tex.Cr.App.1982); Battie v. Estelle, 655 F.2d 692, 697 (5th Cir.1981); Vanderbilt v. Lynaugh, 683 F.Supp. 1118, 1123 (E.D.Tex.1988) and cases cited therein; cf. Purtell v. State, 761 S.W.2d 360, 375 (Tex.Cr.App.1988) cert. denied 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989); Satterwhite v. State, 726 S.W.2d 81, 94 (Tex.Cr.App.1986), vacated and remanded on other grounds 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988).

However, the seeds of an exception to the exclusionary rule above were planted in Smith itself. There, the Supreme Court wrote

When a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Courts of Appeals have held that, under certain circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution's psychiatrist.

Smith, 451 U.S. at 465, 101 S.Ct. at 1874. After a string of citations supporting this proposition, the Court continued as follows:

On the same theory, the Court of Appeals here carefully left open the "possibility that a defendant who wishes to use psychiatric evidence in his own behalf [on the issue of future dangerousness] can be precluded from using it unless he is [also] willing to be examined by a psychiatrist nominated by the State." [Smith v. Estelle ] 602 F.2d at 705 [5th Cir.1979].

Id., 451 U.S. at 466, 101 S.Ct. at 1874, fn. 10. (brackets in original).

The exception planted in Smith was explicitly recognized by the Supreme Court in Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987). In that case, the defense joined in a motion for a psychiatric examination of the defendant pursuant to a Kentucky procedure for involuntary hospitalization. Later, at trial, the defendant introduced psychiatric evidence seeking to establish the " 'mental status' defense of extreme emotional disturbance." Id., 107 S.Ct. at 2918.

In such circumstances, with [defendant] not taking the stand, the Commonwealth could not respond to this defense unless it presented other psychological evidence. Accordingly, the Commonwealth asked [the witness who presented defendant's psychiatric evidence] to read excerpts of Doctor Lange's report ... The introduction of such a report for this limited rebuttal purpose does not constitute a Fifth Amendment violation.

Id. (brackets added). Lower court cases in accord with Buchanan 's holding include Griffin v. State, 665 S.W.2d 762, 769 (Tex.Cr.App.1983), cert. den. 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed.2d 722 (1984); Schneider v. Lynaugh, 835 F.2d 570 (5th Cir.1988), cert. den. 488 U.S. 831, 109 S.Ct. 87, 102 L.Ed.2d 63 (1988); Griffin v. Lynaugh, 823 F.2d 856 (5th Cir.1987), cert. den. 484 U.S. 1079, 108 S.Ct. 1059, 98 L.Ed.2d 1021 (1988); Williams v. Lynaugh, 809 F.2d 1063 (5th Cir.1987), cert. den. 481 U.S. 1008, 107 S.Ct. 1635, 95 L.Ed.2d 207 (1987).

In the case at bar, the State elicited redirect testimony from Dr. Sparks concerning appellant's competency evaluation in response to appellant's introduction of psychiatric evidence on cross-examination. By introducing appellant's TDC psychiatric records and soliciting Dr. Sparks' opinion concerning those records, appellant "opened the door" to the State's use of the results of his competency exam for rebuttal purposes. Buchanan, supra, and cases cited above. By creating the impression that appellant may have been suffering from paranoid schizophrenia, ap...