Holloway v. State

• Decision Date: 01 April 1981
• Docket Number: No. 64411,64411
• Citation: 613 S.W.2d 497
• Parties: Emmett Murray HOLLOWAY, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 497

613 S.W.2d 497

Emmett Murray HOLLOWAY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 64411.

Court of Criminal Appeals of Texas, En Banc.

April 1, 1981.

Ebb B. Mobley, Court-appointed, Longview, for appellant.

Odis R. Hill, Dist. Atty., Longview, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

This automatic appeal ¹ results from a conviction for the offense of capital murder pursuant to V.T.C.A. Penal Code, § 19.03(a)(1). ² Upon the jury's return of affirmative answers to two special issues submitted, Article 37.071(b), V.A.C.C.P., appellant's punishment was assessed at death. Article 37.071(e), supra.

Briefly, the evidence adduced at the guilt-innocence stage of trial reflected that in the early morning hours of November 22, 1977, appellant successively robbed two different convenience store clerks at gun point, at approximately 12:20 a. m. and 1:15 a. m. Accompanied by Marilyn Gail Griffin and driving her car, appellant saw a police car, its red lights and spot light on, pull out behind him. As appellant pulled over, police officer Marshall Sowders exited his car and called out for appellant to do likewise. Officer Sowders walked toward appellant, and according to Griffin, did not have his weapon drawn.

Marilyn Griffin testified that at this point she heard five shots fired and saw Officer Sowders thrown back and then fall. Appellant jumped back into the car and drove off at a rapid rate of speed, telling Griffin that he "knew what he did" and that the officer "wasn't the only one that needed it." Appellant then handed Griffin the .357 caliber magnum pistol and told her to reload it as they were pursued by more police officers. Eventually a police car pulled up beside them and as an officer aimed a shotgun out the window at appellant, he stopped the car. Appellant was ordered out of the car and right after he exited, Marilyn Griffin was shot by an officer. As a result, Griffin was confined to a wheelchair.

At the punishment phase, the State called James P. Grigson, M.D., a psychiatrist, for the purpose of adducing expert opinion testimony that there is a probability that appellant would commit criminal acts of violence constituting a continuing threat to society. ³ The State then rested its case on the punishment issues, and appellant called his sister, Jerida Holloway McCartney, a pharmacist. Mrs. McCartney testified that the twenty four year old appellant had no prior criminal record and had completed one year of college.

The father of the witness and appellant had died in a mental institution for war veterans after having been institutionalized for three years, in 1973. According to McCartney, her father had a criminal record and had served time in prison. Appellant, she testified, had attempted to join the military, but was unable to meet medical criteria for admission due to disabilities suffered at the age of fourteen as a result of a motorcycle accident. Appellant's primary and lingering injury was a subdural hematoma, a blood clot on his brain; from brain surgery, appellant had suffered complications which precluded his entry into the Armed Forces. According to McCartney, scar tissue from the brain surgery had caused a permanent neurological malfunction, the effects of which were similar to epilepsy.

The witness testified that she had seen her brother suffer seizures which rendered him unconscious for times ranging between twelve and twenty four hours, after which for three or four days he would lose his orientation and be unable to remember anything. Appellant had been hospitalized in both Confederate Memorial in Shreveport as well as Schumpert Sanatorium, until he was transferred to a charity hospital when insurance coverage ran out. Appellant had a sporadic work history due to his inability to maintain a job after periodic incapacitation.

By his first ground of error, appellant contends that the trial court abused its discretion in permitting the State to adduce the opinion testimony of Dr. Grigson regarding appellant's future dangerousness. In argument before this Court, the State contended that appellant's objection varied from his ground on appeal.

The record reflects, however, that defense counsel stated prior to Dr. Grigson's taking the stand:

"We have a specific competency objection on this witness. Competency is to be determined by the Court prior to the witness' taking the stand."

Thereafter, Dr. Grigson was called for purposes of establishing the admissibility of his testimony outside the presence of the jury.

After he was sworn, in response to questions by the prosecutor, Dr. Grigson recited his educational and practical experience background and enumerated his licenses and certifications in the field of psychiatry; immediately thereafter, the district attorney declared, "Your Honor, based upon those qualifications, we submit that this witness is competent to express an opinion concerning the field of psychiatry." Defense counsel then elicited from Dr. Grigson the fact that he had made no psychiatric or medical examination of the accused.

Defense counsel again objected to the competency of the witness, asserting that "his testimony would be irrelevant to any issue before (the) jury," and that any opinion Dr. Grigson would give, would be based upon hearsay, thereby denying appellant his rights to cross examination and effective assistance of counsel. In response, the trial court inquired of the prosecutor whether he intended to elicit the opinion based upon a hypothetical question.

The District Attorney replied in the negative and advised the court that the State would show Dr. Grigson's opinion to be based upon interviews with "people who knew (appellant) prior to and subsequent to this offense," the arresting and interrogating officers involved, "people in the jail," and thorough reviews of the offense report, as well as medical information reflected upon a form appellant had filled out at the time of his admission to county jail.

The trial judge ruled that the opinion testimony would be received, but he would not permit the witness to testify as to the content of conversations on which the opinion was based. Appellant again voiced his several objections.

We are constrained to agree with appellant that the trial court abused its discretion in permitting Dr. Grigson to testify for the reasons about to be delineated.

Initially we note that it is a general rule of evidence that opinion testimony, like hearsay, is inadmissible because it is not based upon personal knowledge of the existence of facts capable of being proved by direct evidence. ⁴ Clearly, there is nothing to be gained by permitting a witness to proffer an opinion on a subject when any other person in the courtroom, any member of the jury, could form an opinion on the issue equally readily and with the same degree of logic as the witness. ⁵ But when the jurors are not competent to infer, without the aid of greater skill than their own, the probable existence of the facts to be ascertained, or the likelihood of their occurring from other facts actually proved, expert opinion evidence is rendered admissible. ⁶

"The opinions of experts are received upon the theory that, by reason of study or experience, they have upon the subject of inquiry a special knowledge which jurors generally do not possess and are therefore better equipped to draw conclusions from the facts than the jurors themselves. * * * (T)he practical test for receiving such opinion is: On the subject in issue can the jury receive any appreciable aid from the person offered?" ⁷

R. Ray, Law of Evidence, 2 Texas Practice § 1400 (3rd ed. 1980) (hereinafter cited as Ray).

Because of the theory upon which a purported expert's testimony may be admitted, the burden of establishing the admissibility of the expert's opinion rests on the party offering such evidence; ⁸ thus, whether the subject in issue is one upon which expert opinion would assist the jury and, if so, whether the proffered witness possesses the requisite qualifications, are preliminary questions for the trial court to decide and are not a matter of "weight" only, to be determined by the jury. ⁹

Merely that the witness has professional credentials or occupational status in a calling which relates to the matter in question is insufficient to qualify him. Rather, it must be shown that he possesses special knowledge upon the specific matter about which his expertise is sought. ¹⁰ And indeed, "even though a witness' qualifications as an expert may be established or admitted, his opinion may be inadmissible if there is no evidence of technical or scientific support for it." ¹¹ Ray, § 1400 at 26-27. The special knowledge which qualifies a witness to give an expert opinion may be derived entirely from a study of technical works, or specialized education, or practical experience or varying combinations thereof; ¹² what is determinative is that his answers indicate to the trial court that he possesses knowledge which will assist the jury in making inferences regarding fact issues more effectively than the jury could do so unaided. Ray, § 1401; Moore v. Grantham, 599 S.W.2d 287 (Tex.1980); Bowman and Blatz v. Raley, 210 S.W. 723 (Tex.Civ.App. San Antonio 1919, no writ); see also Lawson, supra.

Furthermore, expert opinion evidence must be tested and limited by the same considerations as other evidence in determining its admissibility: whether its probative value outweighs its prejudicial potential. ¹³ Thus the admission of the expert's opinion is dependent upon the offering party's showing that it is appropriate because of the unfamiliarity of lay jurors with a body of expertise which is relevant to the resolution of the litigation. Concomitantly, relevance of the opinion to an issue in litigation is established only if the expert's conclusion is based upon facts either proved or assumed. Barefoot v. State, 596...